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    Arbitration Not Waived in Lawsuit Pending for Two Years
    2018-11-20

    Defendants in a lawsuit didn’t waive their right to arbitrate even after moving to dismiss and answering a complaint, a court held last week. Arbitration wasn’t waived because the defendants hadn’t filed affirmative defenses or counterclaims and had taken no discovery. Trevino v. Select Portfolio Servicing, Inc. (In re Jose Sr. Trevino), Adv. Pro. No. 16-7024, 2018 Bankr. LEXIS 3605 (Bankr. S.D. Tex. Nov. 14, 2018).

    Filed under:
    USA, Arbitration & ADR, Banking, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, Injunction, Breach of contract, Arbitration clause, Waiver, Abuse of process, Testimony, Motion to compel, Prejudice, Federal Arbitration Act 1926 (USA), United States bankruptcy court
    Authors:
    Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Lehman Brothers Announces Settlement to Resolve Massive RMBS Claims; Estimation Hearing Slated for Later This Year
    2017-09-01

    For over eight years, In re Lehman Bros., No. 08-13555-scc (Bankr. S.D.N.Y.), has been one of the most active, complex bankruptcy dockets in the country. A large portion of the remaining contested matters in that case are claims by trustees for residential mortgage backed securities (RMBS), who continue to pursue claims against the Lehman estate for losses caused by toxic mortgages.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Lehman Brothers
    Authors:
    J. Taylor Kirklin , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Bankruptcy Remoteness Going to a Court of Appeals (Progress Report No. 3)
    2018-04-25

    Our February 22 post reported that the Franchise Services of North America, Inc. decision of Bankruptcy Judge Edward Ellington of the Southern District of Mississippi dismissing a Chapter 11 petition because a shareholder had not approved the filing as required by the debtor’s charter was going directly to the U.S. Court of Appeals for the Fifth Circuit on an expedited basis. It is the first case concerning the merits of contractual or structural bankruptcy-remoteness in my memory to reach a Court of Appeals since the adoption of the Bankruptcy Code in 1978.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    First Circuit Clarifies the Scope of the Bankruptcy Court’s Jurisdiction in Civil Proceedings
    2017-08-18

    Recently, in Gupta v. Quincy Medical Center, 858 F.3d 657 (1st Cir. 2017), the U.S. Court of Appeals for the First Circuit clarified the limits of the bankruptcy courts’ subject-matter jurisdiction over civil proceedings. The decision, authored by Judge Lipez and joined by retired Supreme Court Justice David Souter (sitting by designation), provides a thorough analysis of the bankruptcy courts’ jurisdiction in such cases.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Bankruptcy, First Circuit
    Authors:
    J. Taylor Kirklin , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Has Partial Substantive Consolidation Taken Off with Republic Airways Holdings?
    2018-04-12

    Substantive consolidation is the ultimate disregard of the corporate separateness of a group of related debtors--it is “the effective merger of two or more legally distinct (albeit affiliated) entities into a single debtor with a common pool of assets and a common body of liabilities,”[1] but without the actual de jure merger of the debtors.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Delaware District Court Dismisses Appeal by Creditors’ Committee After Case is Converted from Chapter 11 to Chapter 7
    2018-03-29

    The Bankruptcy Code provides for the appointment of a creditors’ committee in chapter 11 bankruptcy cases. See 11 U.S.C. § 1102. There is no parallel provision applicable to chapter 7 cases. When a bankruptcy case is converted from chapter 11 to chapter 7 while the creditors’ committee is pursuing an appeal, what happens to that appeal? In In re Constellation Enterprises LLC, Civ. No. 17-757-RGA, 2018 U.S. Dist. LEXIS 47153 (D. Del. Mar.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Second Circuit Confirms Madoff Trustee’s Ability to Recover Foreign Transfers
    2019-04-10

    The Bottom Line

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Citibank v. Norske: Enjoining Violations of Indentures? — Not So Fast
    2016-05-31

    A recent case out of the Southern District of New York, Citibank, NA, London Branch v. Norske Skogindustrier ASA(S.D.N.Y. March 8, 2016), once again illustrates the difficulty of obtaining injunctive relief against prospective indenture violations of a financially troubled issuer.

    The Facts

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Kramer Levin Naftalis & Frankel LLP, Surety, Injunction, Debt, Citibank
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Delaware Bankruptcy Court Dismisses Committee’s Complaint Challenging Portion of Credit Bid
    2018-08-01

    The Bottom Line

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Fourth Amendment, US District Court for District of Delaware
    Authors:
    Kelly E. Porcelli
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Duties of a Trustee Prior to Default: A Tale of a Lapsed UCC Filing
    2016-05-31

    A typical bond indenture provides that prior to the incurrence of an event of default, a trustee’s obligations are limited to those specifically set forth in the indenture. It is only following the occurrence of an event of default that the trustee’s duties of prudent conduct seem to ripen. This often leaves trustees and bondholders in a state of uncertainty over what actions, if any, a trustee may be obligated to take as the financial condition of an issuer worsens but has not yet crossed the default line. A recent case from the Eastern District of Pennsylvania, Becker v.

    Filed under:
    USA, Pennsylvania, Banking, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Interest, Bank of New York Mellon, Trustee
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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