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    11th Cir. Rejects Argument That Chapter 13 Bankruptcy Discharged Mortgage Loan
    2019-01-04

    The U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage loan with a post-plan maturity date was not discharged in a Chapter 13 bankruptcy because the plan did not “provide for” the debt and modify the repayment terms of the mortgage.

    The Eleventh Circuit also held that the debt was not discharged because discharge would violate 11 U.S.C. § 1322(b)(2)’s anti-modification provision for mortgages secured by the debtor’s principal residence.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Mortgage loan, Unsecured creditor, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Eleventh Circuit Holds Mortgages Not Dischargeable in Chapter 13 Bankruptcy
    2019-01-08

    Pursuant to 11 U.S.C. § 1322(b)(2), a Chapter 13 bankruptcy plan cannot modify the rights of a secured creditor whose claim is only secured by an “interest in real property that is the debtor’s principal residence.” On December 6, the Eleventh Circuit held that this provision prevents the discharge of a mortgage in a Chapter 13 bankruptcy, regardless of whether the plan “provided for” the mortgage or whether the mortgagee filed a proof of claim.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Secured creditor, United States bankruptcy court, Eleventh Circuit
    Authors:
    David N. Anthony
    Location:
    USA
    Firm:
    Troutman Pepper
    District Court Holds That Receipt of Reorganized Stock Did Not Violate Turnover and Standstill Provisions in Intercreditor Agreement
    2018-12-21

    On November 30, 2018, Judge Nelson S. Román of the United States District Court for the Southern District of New York issued a decision affirming the dismissal of certain claims brought by senior secured creditors against junior secured creditors concerning the alleged breach of standstill and turnover provisions in an intercreditor agreement that governed the creditors’ relationship as creditors with recourse to common collateral. SeeIn re MPM Silicones, LLC, No. 15-CV-2280 (NSR), 2018 WL 6324842 (S.D.N.Y. Nov. 30, 2018) (“Momentive”).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Secured creditor, United States bankruptcy court
    Authors:
    Michele C. Maman , Thomas Curtin
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Fed and FDIC Issue Resolution Plan Guidance to US and non-US GSIBs
    2018-12-21

    Yesterday, the Board of Governors of the Federal Reserve System (“Board”) and the Federal Deposit Insurance Company (“FDIC”) (together, the “Agencies”) issued feedback and other guidance regarding the resolution plans (or living wills) of 12 global systemically important banks (“GSIBs”). Specifically, the Agencies finalized guidance (Final Guidance) to the eight US GSIBs regarding the firms’ resolution pl

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Insurance, White & Case, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
    Authors:
    Paul Saltzman , Kevin Petrasic
    Location:
    USA
    Firm:
    White & Case
    A Holiday Buffet of Banking News
    2018-12-28

    On December 27th, Jonathan and I returned to the studio to record the latest podcast for The Bank Account. We haven’t discussed New Year’s Resolutions, but we’ll try to return to a little more normalcy in 2019!

    Filed under:
    USA, Banking, Corporate Finance/M&A, Insolvency & Restructuring, BCLP, Google
    Location:
    USA
    Firm:
    BCLP
    Well-Crafted Carve-out Provisions for Attorneys’ Fees in Cash Collateral Orders are Enforceable Even After Conversion to Chapter 7, Per the Sixth Circuit
    2019-01-02

    In a decision issued on December 28, 2018, the Sixth Circuit Court of Appeals affirmed the Bankruptcy Court and the District Court, awarding chapter 11 debtor and creditors’ committee professionals their attorneys’ fees based upon a “carve-out” provision in the cash collateral order and ahead of the secured creditors, despite conversion of the case to chapter 7. East Coast Miner LLC v. Nixon Peabody LLP (In re Licking River Mining, LLC), Case No. 17-6310, 2018 US. App. LEXIS 36677 (6th Cir. 2018).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Legal Practice, Litigation, FisherBroyles LLP, Bankruptcy, Statutory interpretation
    Authors:
    Patricia B. Fugée
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Triangular Setoff Impermissible Under Section 553: No Contracting or Theorizing Around It, Section 553 Requires Mutuality
    2019-01-03

    In a recent decision, In re Orexigen Therapeutics, Inc., No. 18-10518 (KG) (Bankr. D. Del. Nov. 13, 2018), Judge Kevin Gross of the United States Bankruptcy Court for the District of Delaware held that the mutuality requirement of section 553 of the Bankruptcy Code must be strictly construed, declining to find mutuality in a triangular setoff between the debtor, a parent entity that owed the debtor money, and that entity’s subsidiary, which was a creditor.

    Filed under:
    USA, Banking, Company & Commercial, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, United States bankruptcy court
    Authors:
    Ronit J. Berkovich , Andriana Georgallas
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Creditors with Partially Disputed Claims Have Standing to File an Involuntary Bankruptcy
    2018-12-14

    Section 303 of the Bankruptcy Code provides a unique remedy to unsecured creditors seeking to collect their debts against an insolvent entity. A careful look at this remedy is contained in an earlier post, entitled Creditors’ Strategic Use of Involuntary Bankruptcy.

    Filed under:
    USA, Arbitration & ADR, Banking, Insolvency & Restructuring, Litigation, Real Estate, FisherBroyles LLP, Bankruptcy, Deferred compensation, IBM
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    California Court Grants Relief from Stay to Allow Foreclosure of Marina
    2018-12-16

    The Bankruptcy Court for the Northern District of California recently granted a secured lender’s request for relief from the automatic stay, pursuant to sections 362(d)(1) and (d)(2) of the Bankruptcy Code, to allow a trustee’s sale of the debtor’s marina under state law. In re Delta Waterways, LLC, Case No. 18-42076-CN (Bankr. N.D. Cal. December 7, 2018). Several missteps and omissions by the debtor appear to have driven the Court’s decision.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, FisherBroyles LLP, Limited liability company
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Single Asset Real Estate Case Dismissed for “Bad Faith” Under Fourth Circuit Precedent
    2018-12-10

    In In re Fairfield TIC, LLC, Case No. 18-73744-VJ (E.D. Va. Nov. 20, 2018), the Bankruptcy Court for the Eastern District of Virginia dismissed a single asset real estate case, pursuant to section 1112(b) of the Bankruptcy Code, on “bad faith” grounds, based on the holding in Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir. 1989).    

    Facts

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, FisherBroyles LLP, Bankruptcy, Bad faith
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP

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