February 2017 N° 19 Fondo Atlante and the future for the financial institutions Tommaso dalla Massara Some news on insolvency procedures Fabio Marelli EU Commission first draft of ePrivacy Regulation Rocco Panetta Insurance Distribution Directive Guido Foglia ACROSS THE EUNIVERSE 2 In this Issue Editorial Giovanni Moschetta, Bernard O'Connor 3 What's App in Europe 4 Bernard O'Connor The next big thing for European data protection: EU Commission publishes first draft of ePrivacy Regulation to be discussed during GDPR transition period 6 Rocco Panetta, Francesco Armaroli Critical features of
The Appellate Court of Illinois, Second District, recently affirmed summary judgment in favor of a mortgagee that failed to meet the FHA requirement to either have a face-to-face meeting with the borrowers or to make “a reasonable effort” to arrange a face-to-face meeting before filing foreclosure, because doing so would have been a futile act after the borrowers’ mortgage loan debt was discharged in bankruptcy and they did not reaffirm the debt.
The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy trustee seeking to recover fraudulent transfers could recover direct and indirect loan repayments made after the bank had knowledge of the debtor’s Ponzi scheme, but could not recover deposits not applied to pay back the bank’s debt because the bank was not a “transferee” under the Bankruptcy Code as to ordinary bank deposits.
With the judgment No. 25162 of 7 December 2016 the Court of Cassation refers the expression set forth in Art. 67, third paragraph, a) of the Italian Bankruptcy Law to the custom between the parties of the specific commercial relationship and not to the wider use of trade
The case
An insolvency receiver sued a former supplier of the bankrupt company, requesting the claw-back of payments made by the company.
Law No. 232 of 11 December 2016 (Budget Law for 2017), in force since 1st January 2017, amended Art. 182-ter of the Italian Bankruptcy Law by repealing the tax consolidation rule and setting aside the interpretation that the tax settlement thereby provided could be chosen as an alternative to a proposal to tax and social security agencies, based on ordinary rules
The tax settlement before Law No. 232 of 2016
The Court of Cassation with a decision of 5 December 2016, No. 24791 confirmed that receivables of advisors who assisted the debtor with respect to a filing for concordato preventivo shall be considered as super-priority claims in the following insolvency liquidation, unless the advice is challenged in the merits
The case
The United States Bankruptcy Court for the Eastern District of Michigan recently allowed a debtor to modify his confirmed Chapter 13 plan based upon a mistake by the debtor’s counsel. The result of the modification was to reduce the plan to 36 months from 60 and reduce the repayment to unsecured creditors by 80 percent.
A copy of In re Luman is available at: Link to Opinion.
The U.S. Court of Appeals for the Fourth Circuit recently held that “escrow funds, insurance proceeds, or miscellaneous proceeds” are protected by the anti-modification provisions for Chapter 13 bankruptcies as “incidental property” under the definition of “debtor’s principal residence” in the federal Bankruptcy Code.
The U.S. Court of Appeals for the Seventh Circuit recently held that a bank’s relationship with a software services company, under which the software services company required its customers to use the bank for the depositary services ancillary to the software, did not violate anti-tying provisions of the federal Bank Holding Company Act, at 12 U.S.C. § 1972.