It is essential to establish first if participating companies are under a control relationship and of the same corporate group

The U.S. Court of Appeals for the Seventh Circuit recently upheld a trial court’s rejection of a borrower’s allegations that a mortgagee and its servicer violated the federal Fair Credit Reporting Act and the federal Fair Debt Collection Practices Act by allegedly inaccurately reporting her loan as delinquent following the borrower’s successful completion of her bankruptcy plan, allegedly rejecting her subsequent monthly payments, and filing a foreclosure action based on the supposed post-bankruptcy defaults.

How can creditors reduce the risk of a fixed charge being characterised as floating?

The determination as to whether a charge over a valuable asset is fixed or floating can be crucial to a creditor's recovery in an insolvency. To have two cases over the course of little more than a year providing detailed analysis of the nature of fixed and floating charges is indeed a treat. Are there any practical steps creditors can take to reduce the risk of a fixed charge being characterised as floating?

Fluctuating assets?

The U.S. Court of Appeals for the Eleventh Circuit recently held that the anti-modification provision in the federal Bankruptcy Code applies to loans secured by mixed-use real properties, such as the large parcel at issue here which functioned both for commercial use and as the debtor’s principal residence.

A copy of the opinion in Lee v. U.S. Bank National Association is available at: Link to Opinion.

Consent of secured creditors with no remaining economic interest is not needed to extend the administration of a company

Osborne Clarke recently advised the administrators in two reported High Court cases which have confirmed that a "secured creditor" under section 248 of the Insolvency Act 1986 should be construed in the present tense, retaining the status of secured creditor only if it is still owed a debt by the company in administration.

Early indications for the construction industry in the upcoming general election, JCT publishes the new Design and Build 2024 contracts, new second staircase requirement for qualifying residential buildings and a recent judgment requiring strict compliance with notice provisions in some building contracts

General election announced for 4 July 2024

A look back at bankruptcy trends and litigation in 2023 reveals a spike in bankruptcy filings driven by economic factors and fallout from the pandemic while in upper courts several interesting cases were decided involving proofs of claim, stay violations, and discharge issues.

Mislabelling a debt instrument as a promissory note can result in unintended consequences

Promissory notes and loan notes are often used in group reorganisations to paper a loan relationship, but because the terms are frequently used interchangeably, there is scope for misuse and misunderstanding.

What is causing supply chain pressure and how can you spot the red flags?

Increase in insolvencies

Insolvency rates in the manufacturing and construction industries are higher than pre-pandemic levels and are showing an upward trend on a year-by-year basis since 2021.

What are the key considerations and actions for businesses when undertaking a reorganisation?