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    SBA Says PPP Funds Cannot Be Loaned to DIP, but One Court Finds the Prohibition Violates 11 U.S.C. § 525(a)
    2020-04-28

    On April 24, the Small Business Administration published additional interim rules which clarified that the SBA would not allow Paycheck Protection Program (PPP) loans to be used for debtor in possession (DIP) funding by stating as follows:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Paycheck Protection Program, Title 11 of the US Code
    Authors:
    Christopher J Kane , Charles W. Cook III
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Florida’s New Uniform Commercial Real Estate Receivership Act Provides Certainty in Uncertain Times
    2020-07-02

    For many years, commercial lenders have struggled with ways to protect their collateral following a borrower’s default. If a lender wanted to appoint a receiver to ensure the collateral maintained its value, Florida law provided inconsistent guidance and was a patchwork of different legal opinions detailing when appointment was appropriate and what powers the receiver would possess. Fortunately, a new Florida law will finally provide welcome clarity, certainty and expediency in the appointment of receivers in commercial property litigation and related foreclosures.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Real Estate, Adams and Reese LLP
    Authors:
    James N. Floyd Jr. , John T. Rogerson, III
    Location:
    USA
    Firm:
    Adams and Reese LLP
    The Impact of the CARES Act on Small Business Reorganizations
    2020-04-03

    Small businesses have traditionally had difficulties reorganizing under Chapter 11 of the Bankruptcy Code. The legal fees necessary to prepare a plan and disclosure statement and navigate the confirmation process were often prohibitively expensive. Further, the reporting requirements and United States Trustee fees mandated by Chapter 11 added significant expenses to the already struggling debtor’s cash flow.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Coronavirus, Title 11 of the US Code, CARES Act 2020 (USA)
    Authors:
    Ron C. Bingham II , John A. Thomson Jr.
    Location:
    USA
    Firm:
    Adams and Reese LLP
    The Impact of the CARES Act on Small Business Reorganizations
    2020-04-06

    Small businesses have traditionally had difficulties reorganizing under Chapter 11 of the Bankruptcy Code. The legal fees necessary to prepare a plan and disclosure statement and navigate the confirmation process were often prohibitively expensive. Further, the reporting requirements and United States Trustee fees mandated by Chapter 11 added significant expenses to the already struggling debtor’s cash flow.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Coronavirus, Title 11 of the US Code, CARES Act 2020 (USA)
    Authors:
    Ron C. Bingham II , John A. Thomson Jr.
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Bankruptcy Court Enforces Pre-Petition Stay Relief Waiver
    2020-01-23

    When negotiating forbearance agreements with borrowers, lenders should consider including a pre-petition waiver of the debtor’s right to oppose a motion for relief from the automatic stay. In a recent decision, the Northern District of Georgia Bankruptcy Court found that a pre-petition waiver of the right to oppose a motion for stay relief was enforceable. A closer examination of this opinion provides guidance to lenders and secured creditors in negotiating these provisions with borrowers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, US District Court for Northern District of Georgia
    Authors:
    Andrew J. McBride , Caitlyn E. Parsley
    Location:
    USA
    Firm:
    Adams and Reese LLP
    FMC Launches Investigation into Demurrage Practices
    2018-04-05

    On Monday, the Federal Maritime Commission launched the first phase of its investigation into port demurrage, detention, and free time practices, ordering vessel operating common carriers (OCCs) and marine terminal operators (MTOs) to provide information and documents explaining these practices, especially regarding circumstances where shippers are not able to retrieve cargo. A similar effort with respect to container terminals at major U.S. ports is also underway.

    Filed under:
    USA, Insolvency & Restructuring, Shipping & Transport, Trade & Customs, Adams and Reese LLP
    Authors:
    L. Cole Callihan
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Impending Amendments to the Bankruptcy Rules Significantly Change a Secured Creditor’s Duties on Filing Claims
    2017-11-20

    In just a matter of days, on December 1, 2017, several amendments to the Federal Rules of Bankruptcy Procedure (the “Rules”) will go into effect, significantly altering the way creditors handle consumer-bankruptcy cases.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Bankruptcy
    Authors:
    Timothy J. Anzenberger
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Courts Confirm That Deposits Into Regular Checking or Savings Accounts Are Not Fraudulent Conveyances
    2017-02-20

    A deposit into a checking or savings account seems like a pretty straightforward and innocuous transaction–unless the customer files for bankruptcy, and the bankruptcy trustee starts looking for assets to recover. Bankruptcy trustees will seek to recover money that once belonged to the borrower under various theories including fraudulent conveyance, particularly if the debtor-bank customer was running some sort of Ponzi or investment fraud scheme.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Adams and Reese LLP
    Authors:
    Charles W. Cook III
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Too Clever by Half: Bankruptcy Court Re-characterizes Debt Owed to Insider as Equity
    2016-08-22

    In a new, unpublished decision1 in the U.S. Court of Appeals, the Fourth Circuit affirmed a bankruptcy court’s order re-characterizing a portion of a loan to a bankruptcy debtor purchased by a creditor as equity instead of debt, impairing that creditor’s ability to recover from the debtor.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Bankruptcy, Debtor, Interest, Limited liability company, Debt, Good faith, Due diligence, Secured loan, United States bankruptcy court, Fourth Circuit
    Authors:
    Andrew J. McBride
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Banking bulletin: assignment of rents may not allow golf course lenders to see the green
    2014-03-25

    Much to the chagrin of golf course lenders, bankruptcy and appellate courts around the country have consistently held that a properly-perfected mortgage or security interest in golf course revenues, including cart rentals and green fees, is not sufficient to grant the lender an interest in the golf course’s “cash collateral” if the business ends up in bankruptcy*. The result is that those revenues can be spent by the golf course borrower in the bankruptcy case to cover its administrative or operating expenses over the objection of the lender.

    Filed under:
    USA, Insolvency & Restructuring, Leisure & Tourism, Litigation, Adams and Reese LLP, Bankruptcy, Debtor, Collateral (finance), United States bankruptcy court
    Authors:
    Andrew J. McBride , Richard H. Malchon, Jr. , Richard P. Carmody
    Location:
    USA
    Firm:
    Adams and Reese LLP

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