On March 29, 2016, the Second Circuit addressed the breadth and application of the Bankruptcy Code's safe harbor provisions in an opinion that applied to two cases before it. The court analyzed whether: (i) the Bankruptcy Code's safe harbor provisions preempt individual creditors' state law fraudulent conveyance claims; and (ii) the automatic stay bars creditors from asserting such claims while the trustee is actively pursuing similar claims under the Bankruptcy Code. In In re Tribune Co.
The District Court for the Central District of California recently held that an assignee that acquired rights to a terminated swap agreement was not a "swap participant" under the Bankruptcy Code and, therefore, could not invoke safe harbors based on that status to foreclose on collateral in the face of the automatic stay. [1] The court ruled that the assignee acquired only a right to collect payment under the swap agreement, not the assignor's rights under the Bankruptcy Code to exercise remedies without first seeking court approval.
Background
On May 21, 2015, the United States Court of Appeals for the Third Circuit (the "Third Circuit") held that in rare instances a bankruptcy court may approve a "structured dismissal"- that is, a dismissal "that winds up the bankruptcy with certain conditions attached instead of simply dismissing the case and restoring the status quo ante" - that deviates from the Bankruptcy Code's priority scheme. See Official Committee of Unsecured Creditors v. CIT Group/Business Credit Inc. (In re Jevic Holding Corp.), Case No.
On October 31, 2014, Bankruptcy Judge Kaplan of the District of New Jersey addressed two issues critically important to intellectual property licensees and purchasers: (i) can a trademark licensee use section 365(n) of the Bankruptcy Code to keep licensed marks following a debtor-licensor’s rejection of a license agreement?; and (ii) can a “free and clear” sale of intellectual property eliminate any rights retained by a licensee? In re Crumbs Bake Shop, Inc., et al., 2014 WL 5508177 (Bankr. D.N.J. Oct. 31, 2014).
Earlier this year, we reported on a decision limiting a secured creditor's right to credit bid purchased debt (capping the credit bid at the discounted price paid for the debt) to facilitate an auction in Fisker Automotive Holdings' chapter 11 case.1 In the weeks that followed, the debtor held a competitive (nineteen-round) auction and ultimately selected Wanxiang America Corporation, rather than the secured creditor, as the w
Whether a secured creditor has an absolute right to credit bid at a sale under a chapter 11 plan has been the subject of conflicting decisions rendered by the Third, Fifth and Seventh Circuits.1 The United States Supreme Court has resolved these inconsistent rulings with its decision in RadLAX Gateway Hotel, LLC, et al., v. Amalgamated Bank, 2 which affirmed the Seventh Circuit’s holding that a secured creditor has an absolute right to credit bid in a sale under a chapter 11 plan.
470-Unit Apartment Complex in Pittsburgh, Pennsylvania In re Ventana Hills Associates, Ltd. (Bankr. N.D. Ill.) Case no. 09-41755 In re Ventana Hills Phase II, L.P. (Bankr. N.D. Ill.) Case no. 09-41758
5620 Central Avenue, LLC recently filed for Chapter 11 bankruptcy, and, although no sale has been announced, the Debtor’s assets may be available for acquisition under the right circumstances. The Debtor’s real property is located at 5620 Central Avenue in El Cerrito, California, valued at $6 million. The property is described as parcels 510-053-32, 510-053-33 and 510-053-25. Real estate listings describe the property as a 142,000 sq. ft. vacant lot that is zoned C-3 Regional Commercial. The Debtor did not list any income.
Stricker LP recently filed for Chapter 11 bankruptcy and, although no sale has been announced, the Debtor’s assets may be available for acquisition under the right circumstances. The Debtor owns a building and 7.9 acres of commercial zoned property located at 2201 East Lamar Boulevard, Arlington, Texas, valued at $19.8 million. The Debtor’s income from the operation of business for 2007 was $69,969 and for 2008 it was $60,667.
BGM Pasadena LLC recently filed for Chapter 11 bankruptcy, and, although no sale has been announced, the Debtor’s assets may be available for acquisition under the right circumstances. The Debtor’s real property is located at 210, 244 and 248 Orange Grove Boulevard and 369 and 375 West Del Mar Boulevard in Pasadena, California, valued at $10 million. The property is described as office and apartment buildings, with one commercial lease, seven residential leases, and one vacant residential unit.