A recent judgment for partial dismissal by the United States District Court for the Middle District of Tennessee reinforces that a bank, when serving as a depository of fiduciary funds, may be shielded from liability for the fiduciary’s misconduct by the powerful protections of Tennessee’s Uniform Fiduciaries Act (the “UFA”).
The Third Circuit recently held that a bankruptcy court may confirm a Chapter 11 plan that includes a sale of assets in which secured creditors are not permitted to “credit bid” for the assets. In re Philadelphia Newspapers, LLC, 599 F.3d 298 (3d Cir. 2010). In that case, the debtors in possession, companies that own and operate the Philadelphia Inquirer and Philadelphia Daily News, moved the bankruptcy court to approve bid procedures for an auction of the debtors’ assets. Id. at 302.
In In re Kohls, 2007 LEXIS 76 (Bankr NDWVa 2007), the debtor filed this adversary proceeding against the Bank to cancel indebtedness and recover damages related to a $34,864 loan that the Bank made to the Debtor on the grounds that the loan was unconscionable at the time it was executed in violation of W. Va. Code § 46A-2-121.
Many bankruptcy practitioners are familiar with the general tenet that an obligation secured only by a mortgage on the Debtor’s principal residence is immune from modification or avoidance by the Debtor. Sections 1123(b)(5) and 1322(b)(2) of the Bankruptcy Code protect residential mortgages from being “stripped-down” to the value of the subject real estate or subjecting the terms of the underlying obligation to modification.
According to the U.S. Bankruptcy Court for the Southern District of New York, a lack of bad faith is no longer a defense to court sanctions for failure to produce documents in a timely manner. That court, in In re A&M Florida Properties II, recently awarded sanctions against both a party and its counsel for the counsel’s failure to become familiar with the client’s email and data-retention policies and systems— despite the absence of any bad faith or willful delay.1
What should be the remedy when a bankruptcy court holds that a security interest is avoidable as a preferential transfer, but the value of the security interest is not readily ascertainable? The Ninth Circuit recently addressed this issue in USAA Federal Savings Bank v. Thacker (In re: Taylors), 2010 U.S. App. LEXIS 5793 (9th Cir. 2010). The Court held that, since the value of the security interest was not readily ascertainable, the only available remedy is for the bankruptcy court to return the security interest itself, not its value, to the bankruptcy estate.
Article L 611-4 to L 611-15 of the French Commerce Code.
Act n° 2005-845 of 26 July 2005, as completed and amended, has created a new out-of-court settlement process known under French law as “Conciliation,” replacing the former amicable settlement or “règlement amiable.”
- In re TOUSA, Inc., 408 B.R. 913 (Bankr. S.D. Fla. 2009). Prepetition lenders could not assert third-party claims against the debtors for breach of contract based on loan document representation that debtor borrowers, on a consolidated basis, would be solvent after the financing transaction because such claims did not depend on the outcome of the fraudulent transfer claims of the creditors, which asserted that individual debtor subsidiaries were insolvent.
- In re Metaldyne Corp., 409 B.R. 671 (Bankr. S.D.N.Y. 2009).
After more than a decade of rising real estate values, the tide has turned against commercial and development real estate, prompting major builders and developers to commence Chapter 11 bankruptcy proceedings. As a result of the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) in 2005, many Chapter 11 cases that revolve around real estate will fall within the Bankruptcy Code’s definition of single asset real estate (SARE) cases and are thus subject to special provisions in the Bankruptcy Code.1 As a result, it is now time to think about SARE.