To start, let me introduce some familiar characters. First, an impecunious claimant who has the benefit of after the event (ATE) insurance, but the disadvantage of an incompetent solicitor. Second, a successful defendant with the benefit of a costs order and a final costs certificate, but the disadvantage of a slippery ATE insurer who has avoided the claimant’s ATE policy because of failures by the aforesaid incompetent solicitor. Different ways around this problem have been tried, and generally failed.
Lender's Security Interest in Funds Lost Upon Transfer to Debtor's Counsel
Imagine that while a bankruptcy case is pending, the debtor-in-possession or bankruptcy trustee files a state law claim against one of the estate's creditors. Presumably, if the debtor wins its state law claim, that recovery augments the bankruptcy estate and increases the amount available to pay the debtor's creditors.[1] The creditor, seeking to avoid litigating the action in the debtor's home state court, timely removes the lawsuit to federal court as permitted under 28 U.S.C.
- On 29th September 2004 the Trustees of the Ashtead United Charity allocated Mrs Janet Watts accommodation in an almshouse, in fact one of 14 residential flats the Charity owned at Ashstead in Surrey. In May 2015 they issued proceedings for possession based on the allegations that Mrs Watts had acted in an anti-social manner, swearing, spitting, and aggression. This was a breach of the terms of the Appointments Letter under which she was allocated the property.
In an order issued today, Judge Dalton of the Middle District of Florida held that in a non-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a “plausible basis” for claims under the Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, or the Declaratory Judgment Act.
On November 21, 2016, in a case entitled In re Monson,1 the Eleventh Circuit Court of Appeals affirmed the Bankruptcy Court's decision,2 which held that a debtor's conduct constituted a willful and malicious injury to a creditor within the meaning of 11 U.S.C. 523(a)(6), because the debtor injured the creditor's right to recover its loan, the injury was intended, and the debtor was conscious of his wrongdoing. Thus, the debt was nondischargeable under 523(a)(6).
Exceptions to the Dischargeability of Debt under Section 523 of the Bankruptcy Code
The Bankruptcy Code gives a trustee the power to avoid pre-petition fraudulent and preference transfers made by a debtor, except that a trustee may not avoid a transfer that is "made by or to (or for the benefit of)" a party enumerated in 546(e) of the Code "in connection with a securities contract." Although 546(e) has been applied in various circumstances, there is little court guidance on whether 546(e) protects transfers made to repay commercial mortgage-backed securities ("CMBS") loans. One case in particular has applied 546(e) to dismiss such an avoidance action: Krol v.
Facts
The appellant is a company trading in electrical goods which regularly supplied Edge Electrical Ltd ('Edge'). Their standard terms provided Edge with a short period of credit before payment was required.
Facts
Angove’s PTY Ltd (‘Angove’s’) is an Australian winemaker which for many years had employed D&D Wines International Ltd (‘D&D’) to distribute its products to retailers. In addition, D&D also purchased wine for itself direct from Angove’s. Their business relationship was governed by an Agency and Distribution Agreement (‘ADA’) entered in December 2011. Amongst its provisions, the ADA entitled the parties to terminate the agreement with immediate effect upon either becoming insolvent.