Before a losing party forges ahead with an appeal of an order or judgment from a bankruptcy court located in the Eleventh Circuit (or any other circuit for that matter), such party would do well to consider whether it has standing to prosecute an appeal in the first instance.
When seeking approval of a settlement in a bankruptcy case, the usual vehicle for approval is the filing of a motion pursuant to Bankruptcy Rule 9019 and a subsequent hearing. While Rule 9019 and case law require certain factual and legal thresholds be established to gain the approval, the Rule does not specifically require an evidentiary hearing on motions to approve settlements.
The Eleventh Circuit’s recent decision in Ullrich v. Welt(In re NICA Holdings, Inc.), Case No. 14-14685, 2015 WL 9241140 (11th Cir. Dec. 17, 2015) demonstrates the importance of carefully selecting legal regimes when deciding to place a company in an insolvency proceeding, such as an Assignment for the Benefit of Creditors (“ABC”), a bankruptcy proceeding, or possibly both with one as an alternative.
The media have been paying considerable attention to the current financial distress of the energy industry in Alberta, focusing primarily on the impact a company’s financial condition can have on its stakeholders, including its employees, shareholders and creditors. But there is another group that is also being affected: counterparties to commercial arrangements with insolvent companies. Increasingly, financially strong companies are having to deal with insolvent joint venture partners, financially distressed operators, and bankrupt lessees.
If Party A files an involuntary bankruptcy case against Party B that is contested by Party B, and if Party A fails to convince a bankruptcy court that Party B should be a debtor in such involuntary bankruptcy case, the general rule is that Party A must pay the reasonable attorneys’ fees incurred by Party B in successfully obtaining dismissal of the involuntary filing.
In a proceeding under the Companies’ Creditors Arrangement Act (“CCAA”), a judge has discretionary powers to, among other things, order debtor companies into bankruptcy and thereby resolve priority disputes. What should be the standard of review of such discretionary decisions? Historically, the standard has been high.
All too often, after a debtor receives his or her discharge in bankruptcy and after the case has been closed, a creditor whose debt has been discharged does something which may appear to constitute an effort to collect that debt. This may range from the sending of an informational account statement by the mortgagee on a home surrendered in the bankruptcy, filing a proof of claim in a subsequent bankruptcy case, to filing of a lawsuit to collect the discharged debt.
Following the Supreme Court of Canada decision in Sun Indalex Finance, LLC v. United Steelworkers, [2013] 1 S.C.R. 271 (Indalex), creditors and their advisors have been closely following jurisprudence which considers the scope of the decision.
Order Denying confirmation of chapter 13 plan not final order for purposes of appeal.