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    Responding to capital directives and related enforcement actions by Banking Regulators
    2012-02-29

    This discussion is being provided to our clients and friends to analyze the challenges presented in this difficult economic environment when an FDICinsured institution experiences a capital difficulty and is directed by the Banking Regulators1 to restore the institution's capital adequacy.2 In the past four years, the FDIC has closed approximately 400 insured institutions—as of January 1, 2012, the FDIC has indicated that there were over 800 banks on its "problem bank list." The difficulties experienced by many of these institutions are summarized in this analysis—

    Filed under:
    USA, Banking, Insolvency & Restructuring, Pillsbury Winthrop Shaw Pittman LLP, Federal Deposit Insurance Corporation (USA)
    Authors:
    Joseph T. Lynyak, III
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP
    Recoupment and setoff issues for health care lenders
    2012-03-02

    Health care lenders and others evaluating or relying on the financial strength of a healthcare provider need to think about the potential recoupment and setoff of claims against Medicare/Medicaid receivables of the provider. 

    RECOUPMENT

    Filed under:
    USA, Banking, Healthcare & Life Sciences, Insolvency & Restructuring, Porter Wright Morris & Arthur LLP, Medicare, Medicaid, Bankruptcy, Accounts receivable
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur LLP
    Bankruptcy court challenges to errors in deeds of trust and mortgages
    2012-02-21

    As real estate-related bankruptcy filings remain steady, courts continue to see debtors challenging the validity of deeds of trust and mortgages due to minor scriveners’ errors.  The United States Bankruptcy Court for the Eastern District of North Carolina is viewed by debtors as a favorable venue in which to bring such challenges due to a string of prior rulings starting with In re Head Grading in 2006, which invalidated a North Carolina deed of trust that incorrectly cited the date of the related note by one day.  The latest chapter in this saga involves an effort by a

    Filed under:
    USA, North Carolina, Banking, Insolvency & Restructuring, Litigation, Poyner Spruill LLP, Bankruptcy, Debtor, Limited liability company, Deed of trust (real estate), United States bankruptcy court
    Authors:
    James S. "Charlie" Livermon III , Jill C. Walters
    Location:
    USA
    Firm:
    Poyner Spruill LLP
    Prepayment premiums: lenders must avoid this mistake
    2012-02-27

    Prepayment provisions are intended, in part, to protect lenders in a depressed market from losses resulting from the costs of replacing their loans sooner than expected and having to relend at rates lower than those originally charged.  A New York federal district court recently upheld a bankruptcy judge's ruling denying a lender's claim for a $7.5 million prepayment premium against a borrower-debtor.1 The lender must have been both surprised and disappointed to learn from the courts' decisions that this result could have been avoided had the lender's loan documents included

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Bankruptcy, Debtor, Consideration, Debt, Foreclosure, Default (finance)
    Authors:
    Paul Rubin , Hanh Huynh
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Justice department claims $25 billion foreclosure settlement reached with largest mortgage servicers
    2012-02-10

    According to a U.S. Department of Justice press release, the federal government and 49 state attorneys general have reached a $25 billion settlement agreement with the nation’s five largest mortgage servicers to settle claims over alleged mortgage loan servicing and foreclosure abuses. If reports are correct, the agreement, which Attorney General Holder called the “the largest joint federal-state settlement ever obtained,” compels the mortgage servicers to adhere to extensive new servicing standards and provides considerable financial relief for homeowners.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Dykema Gossett PLLC, Mortgage loan, Foreclosure, State attorney general, US Department of Justice, Bank of America, United States bankruptcy court
    Authors:
    Donald C. Lampe , Fredrick S. Levin , Jeffrey E. Jamison
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    Failure to provide mortgage note precludes relief from bankruptcy stay
    2012-02-06

    On February 1st, the Tenth Circuit held that Deutsche Bank failed to establish it was a "party of interest" entitled to relief from a bankruptcy petition's automatic stay. After Deutsche Bank's foreclosure of the Millers' home was stayed by the latter's bankruptcy petition, the bank obtained relief from the stay. On appeal, the Tenth Circuit reversed and remanded. The bank failed to provide the original note to the bankruptcy court and did not provide the original or a copy to the bankruptcy appellate panel.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Winston & Strawn LLP, Deutsche Bank, Tenth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Can secured creditors credit bid in Chapter 11 plans? Supreme Court to decide
    2012-02-01

    The Issue

    The issue is whether a Chapter 11 plan can be crammed down over the secured lender’s objection where the plan provides for the sale or transfer of the secured lender’s collateral with the proceeds going to the secured lender without the secured lender having the right to credit bid for is collateral up to the full amount of its claim.  

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Credit (finance), Debtor, Collateral (finance), Debt, Mortgage loan, Secured creditor, United States bankruptcy court
    Authors:
    Lawrence Mittman , John D. Penn
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    FDIC files suit against former directors of the Bank of Asheville
    2012-01-25

    On December 29, 2011, the FDIC filed suit against seven former directors of the Bank of Asheville in the Western District of North Carolina seeking to recover over $6.8 million in losses suffered by the bank prior to receivership.  All of the directors named as defendants were members of the bank’s Loan Committee, the committee responsible “for the amplification, implementation and administration of the loan policy” and “management of the lending function”.  The Complaint cites 30 specific commercial real estate and business loans approved by the defendants between June 26, 2007 a

    Filed under:
    USA, Banking, Company & Commercial, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Federal Deposit Insurance Corporation (USA)
    Authors:
    John R. Bielema
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Seventh Circuit holds real estate debtor cannot cram down undersecured lender with bonds
    2012-01-25

    The U.S. Court of Appeals for the Seventh Circuit affirmed a bankruptcy court’s dismissal of a single asset real estate case on Jan. 19, 2012, reasoning that the debtor’s proposed substitute collateral “was not the indubitable equivalent of the [undersecured lender’s] mortgage.”In re River East Plaza, LLC, 2012 WL 169760, *2 (7th Cir. Jan. 19, 2012) (Posner, J.). In the court’s words, the debtor “wanted [the lender] out of there and decided to seek confirmation of a [reorganization] plan . . .

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Collateral (finance), Default (finance), United States bankruptcy court, Seventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Seventh Court of Appeals further strengthens rights of secured lenders in Chapter 11 cases
    2012-01-30

    On January 19, 2012, the Seventh Circuit in In re River East Plaza, LLC, (No. 11-3263), held in favor of a secured lender further strengthening the rights of secured creditors in bankruptcy cases.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Debtor, Secured creditor, Seventh Circuit
    Authors:
    David A. Zdunkewicz
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP

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