introduction
The British Columbia Supreme Court recently reviewed the considerations to be applied on an application by a secured creditor to lift a stay of proceedings granted in an initial order under the Companies' Creditors Arrangement Act (the "CCAA"). In Re Azure Dynamics Corp.,1 Madam Justice Fitzpatrick confirmed that the classic "doomed to fail" argument will not be persuasive where the applicant creditor is not prejudiced, and where the objectives of the CCAA are best served, by allowing the stay of proceedings to continue.
background
Indiana Code Section 32-28-3-9, often referred to as the Personal Liability Notice (PLN) Statute, provides a means for subcontractors, equipment lessors, and laborers to assert a claim against a project owner for amounts owed for labor and material on a construction project. Essentially, the PLN Statute provides a means to assert a lien against funds the owner would otherwise pay to a general contractor, as contrasted to asserting a mechanic’s lien claim against real estate.
The Indiana Court of Appeals recently held in a published opinion that the appointment of a receiver for the benefit of a mortgagee who agreed to subordinate its mortgages was mandatory under Indiana law. PNC Bank, Nat’l Assoc. v. LA Dev., Inc., __ N.W.2d __, 2012 WL 3156539 (Ind. Ct. App. Aug. 6, 2012).
Like the common law of most other states, Michigan law generally grants to a court-appointed receiver a first priority claim in the receivership proceeding for payment of the receiver’s fees and expenses incurred in that proceeding. See, e.g., In re Dissolution of Henry Smith Floral Co., 260 Mich. 299, 244 N.W. 480 (1932); Cohen v. Cohen, 125 Mich. App. 206, 335 N.W.2d 661 (1983).
The United States Bankruptcy Court for the Western District of Michigan recently held in a published opinion that no statutory or common law landlord’s lien exists under Michigan law. Rather, in order for a landlord to assert a valid lien on the personal property of its tenant, the tenant must have consensually agreed to grant a security interest in the property and the landlord must have perfected such interest in accordance with Article 9 of the Uniform Commercial Code. In re Kentwood Pharmacy, LLC, ___ B.R. ___, 2012 WL 2899383 (Bankr. W.D. Mich. July 17, 2012).
The Seventh Circuit Court of Appeals recently held that the rejection of a trademark license by the trustee did not abrogate the licensee’s rights under a prepetition agreement to use the debtor’s trademark. Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, __F.3d __, 2012 WL 2687939 (7th Cir. July 9, 2012). The Seventh Circuit decision is contrary to a prior decision by the Fourth Circuit in Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043 (4th Cir. 1985).
On May 14, 2012, in 9-Ball Interests Inc. v. Traditional Life Sciences Inc.1, the Ontario Superior Court of Justice (the "Court") rendered another decision that demonstrates the importance of full disclosure and transparency in applications made to the Court.
A year after the uncertainty created in the Canadian corporate debt financing world by the Ontario Court of Appeal's pensions-friendly decision in the Indalex CCAA restructuring matter2, the Quebec Superior Court, in April 2012, determined in a lengthy and well-reasoned decision that the key restructuring and pensions law principles underpinning Indalex do not apply in Quebec when considering the treatment of defined benefit amortization payment and deficit claims in a restructuring.
On May 29, 2012, the United States Supreme Court upheld a secured creditor’s absolute right to credit bid when a debtor files a Chapter 11 plan proposing to sell the secured creditor’s collateral free and clear of the secured creditor’s liens. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. ___ (2012). In just a little over one month since oral argument, the Supreme Court resolved a conflict between two circuit courts of appeal as to whether a plan could prohibit a secured creditor from credit bidding on its collateral at a sale.