In 1571, Parliament enacted a law, sometimes known as the Statute of 13 Elizabeth, creating one of the greatest means of creditor protection – the proscription of fraudulent transfers.
So, a ruling came out in June that we in The Bankruptcy Cave have been dying to blog about (and not just so we can use the blog title above). Forgive the delay – heavy workloads and summer vacations often preclude timely blog posts. But this one is a doozy, better late than never on this blog post.
Two recent cases serve as reminders the devil is truly in the details.
Two United States courts recently issued decisions involving the scope of the Bankruptcy Code’s safe-harbor provision in section 546(e) related to avoidance actions. In one, in the Second Circuit, the court took a broad approach to protect the financial markets, whereas the Seventh Circuit interpreted that statute more narrowly. The Supreme Court is now well-positioned to bring greater clarity to this important area of law.
The power of a bankruptcy court to authorize the sale of assets “free-and-clear” of liens and any other interests is a powerful tool that is used to realize value from distressed businesses. Indeed, purchasers will occasionally insist that sellers file a chapter 11 case in order to “cleanse the assets” by conducting their sale under Bankruptcy Code § 363(b). But how far does this power reach? Can bankruptcy be used to protect the purchaser from potential successor liability claims?
Individual debtors with old tax debts relating to late-filed tax returns may be surprised to find that those tax debts may not be dischargeable under section 523(a) of the Bankruptcy Code due to the lateness of the tax filing. There is a current Circuit split regarding whether a late tax filing constitutes a “return” at all, which is critical to the dischargeability inquiry. The Ninth Circuit weighed in last week in In re Smith, 2016 WL 3749156 (9th Cir. July 13, 2016), further cementing the split.
On June 30, 2016, President Obama signed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA)[1] into law. A copy of the Act can be found here.
Remember Sabena, the ill-fated Belgian airline that declared bankruptcy in 2001? Well, to quote Ford Madox Ford, this is the saddest story I have ever heard.
Estate professionals are under continued scrutiny. Unlike other professionals, getting paid is not simply a matter of sending a bill. The bankruptcy court, appropriately so, closely oversees the amount and timing of payment of estate professional fees. And proper disclosure under the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) is critical for all estate professionals.