Overview
In Highland Capital Mgmt. v. Dondero (In re Highland Capital Mgmt.), Case No. 21-03007-sgj (Bankr. N.D. Tex. 2021), the U.S. Bankruptcy Court for the Northern District of Texas held that a debtor could not be compelled to abide by an arbitration clause in an agreement that was rejected pursuant to Section 365 of the Bankruptcy Code.
Background
Overview
In Hilal K. Homaidan v. Sallie Mae, Inc., Navient Solutions, LLC, Navient Credit Finance Corporation, Case No. 20-1981 (2d Cir. 2021), the Second Circuit affirmed the opinion of the U.S. Bankruptcy Court for the Eastern District of New York, which held that private student loans are not excepted from discharge under Section 523(a)(8)(A)(ii) of the Bankruptcy Code, which excepts from discharge “an obligation to repay funds received as an educational benefit, scholarship, or stipend.” 11 U.S.C. § 523(a)(8)(A)(ii).
Background
This is the first article in 'Back to Basics', a series of articles looking at insolvency processes in Scotland. In this article I examine the court process for winding up a company.
A winding up petition is a form of legal action that can be used when a company is unable to pay its debts as they fall due. Sections 122 to 124 of the Insolvency Act 1986 (‘the Act’) deal with how to wind up a company in Scotland.
When is a company deemed unable to pay debts?
In the recent Sheriff Court judgment in the case of The Accountant in Bankruptcy v Peter A Davies, the Sheriff sought to clarify how a family home should be dealt with following the sequestration of an individual.
Background
The debtor was sequestrated in October 2010.
In October 2020, the Accountant in Bankruptcy (‘AiB’) applied to the Sheriff under section 40 of the Bankruptcy (Scotland) Act 1985 (now section 112 of the Bankruptcy (Scotland) Act 2016) to permit the sale of the debtor’s family home.
The Bottom Line
When is an insurance commissioner not a governmental authority? A federal district judge reminds us that a state insurance commissioner, when acting as receiver of an insolvent insurer, acts in a different capacity to his governmental role. This principle can cause an insurance commissioner to fall outside a contractual definition of “governmental authority” even where the definition contains inclusive language on multiple capacities.
Overview
In In re Nuverra Environmental Solutions, Inc., Case No. 18-3084, the Third Circuit affirmed the opinion of the District Court for the District of Delaware denying the confirmation appeal of an unsecured noteholder as equitably moot. In doing so, the Third Circuit (i) refused to allow a full-class recovery, as it would unscramble the substantially consummated plan, and (ii) refused an individualized payout to the bondholder, as it would unfairly discriminate against other members of the class in contravention of the Bankruptcy Code.
Bottom Line
In its recent decision in Mitchell v. Zagaroli, Adv. Pro. No. 20-05000, 2020 WL 6495156 (Bankr. W.D.N.C. Nov. 3, 2020), the Bankruptcy Court for the Western District of North Carolina held that the Chapter 7 trustee could step into the shoes of the IRS and utilize the IRS’ longer look-back period to avoid fraudulent transfers.
What Happened?
The Bottom Line
The Bottom Line
In In re CEC Entertainment, Inc., et al., 20-33163, 2020 WL 7356380 (Bankr. S.D. Tex. Dec. 14, 2020), the Bankruptcy Court for the Southern District of Texas held that the Bankruptcy Code does not permit the court to alter a debtor’s rent obligations beyond the 60-day post-petition period enumerated in Section 365(d)(3) of the code. However, the court declined to address the remedy for a violation of Section 365(d)(3).
What Happened?
Background