Post-judgment interest is not something most lenders consider when making a loan. In fact, it is not ordinarily the subject of significant analysis even when litigation becomes necessary. Where the United States District Court is the preferred venue, however, parties easily can fall into the quandary of being stuck with the federal statutory post-judgment interest rate, which is currently less than 1% per annum.

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 Ninth Circuit recently ruled that a Chapter 11 debtor could not avoid the payment of default interest under a promissory note as a condition to curing and reinstating such promissory note under a Chapter 11 plan. In Pacifica L 51 LLC v. New Investments Inc. (In re New Investments, Inc.), 840 F.3d 1137 (9th Cir. 2016), the Ninth Circuit held that its prior rule of allowing a curing debtor to avoid a contractual post-default interest rate in a loan agreement—as decided in Great Western Bank & Trust v.

Wednesday, February 1 brought a welcome development for the many correspondent lenders currently defending against claims filed by (or threatened with future lawsuits by) Residential Funding Company (“RFC”) and its successor-in-interest, the ResCap Liquidating Trust (“ResCap”).

(Bankr. E.D. Ky. Feb. 2, 2017)

The bankruptcy court enters summary judgment in favor of the plaintiff trustee. The trustee sought to obtain title to a truck sold to the debtor prepetition by the defendant dealer. The dealer had not provided a certificate of title, but the debtor did receive physical possession of the truck pursuant to a bona fide sale. The court finds in favor of the trustee after applying Kentucky’s comprehensive automated motor vehicle registration and titling system contained in KRS §§ 186A.010-186A.990. Opinion below.

Judge: Schaaf

(7th Cir. Jan. 30, 2017)

Puerto Rico Oversight, Management, and Economic Stability Act

When lenders take an aggressive approach to a financially troubled borrower that ultimately files for bankruptcy protection, stakeholders in the case, including chapter 11 debtors, trustees, committees, and even individual creditors or shareholders, frequently pursue causes of action against the lenders in an effort to augment or create recoveries.

With one exception, the Top 10 List of "public company" (defined as a company with publicly traded stock or debt) bankruptcies of 2016 consisted entirely of energy companies—solar, coal, and oil and gas producers—reflecting, as in 2015, the dire straits of those sectors caused by weakened worldwide demand and, until their December turnaround, plummeting oil prices. The exception came from the airline industry. Each company gracing the Top 10 List for 2016 entered bankruptcy with assets valued at more than $3 billion.

In 1994, Congress amended the Bankruptcy Code to add section 1123(d), which provides that, if a chapter 11 plan proposes to "cure" a default under a contract, the cure amount must be determined in accordance with the underlying agreement and applicable nonbankruptcy law. Since then, a substantial majority of courts, including the U.S. Court of Appeals for the Eleventh Circuit, have held that such a cure amount must include any default-rate interest required under either the contract or applicable nonbankruptcy law.