A recent decision from a trial court sitting in Illinois calls into question whether debt collectors can rely on a widely used disclosure when collecting debt that may be subject to an expired limitations period.

A copy of the opinion in Richardson v. LVNV Funding, LLC is available at:  Link to Opinion.

Amendment to Bankruptcy Rule 3002

Certain amendments to the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) will become effective in all cases commencing after December 1, 2017.1

The amendment to Bankruptcy Rule 3002 is significant. As explained in detail below, the amendment does the following:

The U.S. Court of Appeals for the Seventh Circuit recently held that, following the confirmation of a foreclosure sale in Illinois, the only remedy available to a borrower under 15 U.S.C. § 1635 was damages, and therefore the one-year limitation period under 15 U.S.C. § 1640(e) applied and his claims were barred despite the fact that he provided rescission notices within three years of the loan closing, and despite the fact that the parties engaged in back-and-forth communications after the demands were first sent.

On 14 December 2017, the Serbian Parliament adopted amendments to the Bankruptcy Law aimed at, among other things, shortening the bankruptcy procedure and improving settlement of the bankruptcy and secured creditors’ claims. The relevant novelties are harmonized with the Strategy for Resolving Non-Performing Loans, which was adopted by the Serbian Government back in 2015. The amendments came into force on 25 December 2017.

This is part of a series of articles discussing restructuring and insolvency related provisions of the Tax Cuts and Jobs Act, which is now expected to become law this week (the “Act”).

Previously we discussed net operating losses (“NOLs”) and cancellation of the debt (“COD”). The provisions on NOLs have generally remained the same (adopting the Senate version of the revisions, but immediately capping the use of NOLs to 80% of taxable income). However, the changes to COD rules we discussed are not part of the current version of the Act.

The Second Circuit recently issued its decision on an appeal to the Momentive Performance Materials Inc. (“MPM”) bankruptcy case. Amongst other issues, the Court found that when determining the appropriate interest rate in a Chapter 11 cramdown, courts should consider market factors rather than strictly apply the Till formula. The Court’s decision will benefit secured creditors when a market rate is ascertainable, as they will no longer have to accept below-market take-back debt.

The United States District Court for the Western District of Wisconsin recently held that a creditor did not perfect its security interest in the debtor’s property because the creditor inadvertently included a space in the debtor’s name in its UCC financing statement. SeeUnited States Sec. & Exch. Comm’n v. ISC, Inc., 2017 WL 3736796 (W.D. Wis. 2017). In the case, the creditor filed a UCC financing statement with the Wisconsin Department of Financial Institutions (“DFI”) regarding an interest it had in certain assets of the debtor, ISC, Inc.

Following rulings from other appellate courts in other appellate districts, Florida’s Third District Court of Appeal recently reversed a trial court’s order involuntarily dismissing a mortgagee’s foreclosure against a borrower holding that the mortgagee’s witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer necessary to prove a default under Florida’s business records exception to hearsay.

Kilpatrick Townsend partner David Posner spoke at a recent New York State Bar Association event where he and other panelists discussed the topic “Around the Edges of IP: Complexities of IP in Bankruptcy.”

Mr. Posner provides four key takeaways from his presentation — “Recent Trends Involving Intellectual Property in Bankruptcy:”

Preference Claims: