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    Supreme Court Deals a Blow to Debtors by Adopting an Expansive View of “Actual Fraud”
    2016-05-23

    Last week, the U.S. Supreme Court in Husky International Electronics, Inc. v. Ritz held a chapter 7 debtor accountable for “actual fraud” despite the absence of a specific fraudulent misrepresentation. The Court’s expansive reading of section 523(a)(2)(A) of the Bankruptcy Code gives creditors a new weapon in their fight to attack the discharge of their debts.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Squire Patton Boggs, Debtor, Fraud, Debt, Bankruptcy discharge, Title 11 of the US Code
    Authors:
    Peter R. Morrison
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Second Circuit decision results in significant nondischargeable debt as a result of new PBGC claims arising from pension plan termination in Chapter 11
    2009-08-26

    During the bankruptcy cycle following the recession of 2001, numerous debtors – notably airlines such as US Airways and United Air Lines, Inc. – undertook “distress terminations” of their ERISA-qualified defined benefit pension plans, which are insured by the Pension Benefit Guaranty Corporation (PBGC). The PBGC found itself holding large general unsecured claims arising from significant underfunding of pension plans insured by the PBGC as a result of these terminations. Efforts by the PBGC to obtain either administrative priority or secured status for these claims invariably failed.1

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Consumer protection, Unsecured debt, Debt, Defined benefit pension plan, Bankruptcy discharge, Title 11 of the US Code, US Congress, Pension Benefit Guaranty Corporation, United Airlines, Second Circuit, United States bankruptcy court
    Authors:
    Nicholas J. Brannick
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Third Circuit questions ability of bankruptcy proceedings to discharge tort claims for latent disease
    2014-05-29

    Earlier this week, the Third Circuit affirmed a federal bankruptcy court’s dismissal of a mesothelioma claim against a bankrupt oil company that arose as an adversary proceeding fifteen years after the bankruptcy plan was confirmed and discharged all outstanding claims.  The Circuit held that because the parties conceded the claim arose at the time of the victim’s asbestos exposure, which pre-dated the defendant’s bankruptcy, a

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Constructive notice, Bankruptcy discharge, Third Circuit
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Bankruptcy asset sale not so “free and clear” after all
    2011-08-10

    The ability to sell an asset in bankruptcy free and clear of liens and any other competing “interest” is a well-recognized tool available to a trustee or chapter 11 debtor in possession (“DIP”). Whether the category of “interests” encompassed by that power extends to potential successor liability claims, however, has been the subject of considerable debate in the courts. A New York bankruptcy court recently addressed this controversial issue in Olson v. Frederico (In re Grumman Olson Indus., Inc.), 445 B.R. 243(Bankr. S.D.N.Y. 2011).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Contractual term, Environmental remediation, Bankruptcy, Debtor, Statutory interpretation, Interest, Liability (financial accounting), Liquidation, Good faith, Debtor in possession, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Lauren M. Buonome
    Location:
    USA
    Firm:
    Jones Day
    Aircraft leasing update: second circuit gives liftoff to billions in unsecured tax indemnity claims
    2011-04-13

    When an airline goes bankrupt, do the owner participants in aircraft leverage-lease transactions have a right to recover on monetary claims (worth billions) based on tax indemnification agreements ("TIAs")? The answer lies in the meaning of the words "pay/paid/pays," which had been the subject of conflicting interpretations in the bankruptcy and district courts in the Northwest Airlines and Delta Air Lines bankruptcy cases.

    Filed under:
    USA, Aviation, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Unsecured debt, Interest, Debt, Tax deduction, Default (finance), Leverage (finance), Bankruptcy discharge, Second Circuit
    Location:
    USA
    Firm:
    Jones Day
    The end of Frenville: relief or more confusion?
    2010-08-10

    As part of the overhaul of bankruptcy laws in 1978, Congress for the first time included the definition of "claim" as part of the Bankruptcy Code. A few years later, in Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), the Third Circuit became the first court of appeals to examine the scope of this new definition in the context of the automatic stay.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Retail, Debtor, Injunction, Liquidation, Bankruptcy discharge, Title 11 of the US Code, US Congress, Third Circuit
    Authors:
    Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    Putative class actions in bankruptcy for violations of the discharge injunction and Bankruptcy Code Section 524(j)
    2015-09-11

    There has been a relatively recent uptick in plaintiffs’ counsel filing putative class actions in multiple state and federal courts for alleged violations of a debtor’s bankruptcy discharge injunction based upon the debtor’s receipt of post-discharge mortgage-related communications. These claims assert putative class action challenges to post-discharge communications alleged to be attempts at personal collection of the discharged mortgage debt.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Debtor, Injunction, Class action, Implied cause of action, Secured creditor, Bankruptcy discharge
    Authors:
    Mark G. Stingley
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Defalcation, bankruptcy, and fiduciary litigation
    2013-05-20

    Last week, the United States Supreme Court issued its opinion in Bullock v. BankChampaign, N.A., which addressed the circumstances in which a breach of fiduciary duty judgment can be discharged in bankruptcy proceedings.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Fiduciary, Bankruptcy discharge, SCOTUS
    Authors:
    Luke Lantta
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Georgia bankruptcy court: FDIC may sue officer of failed bank, notwithstanding his bankruptcy, if defense and recovery limited to D&O insurance
    2012-08-28

    A Georgia bankruptcy court has held that notwithstanding the discharge of an individual in his individual bankruptcy proceeding, the Federal Deposit Insurance Corporation (FDIC) may file suit against the individual as a former officer of a failed bank so long as the applicable D&O policy covers defense costs and the FDIC’s recovery is limited to insurance proceeds.  In re Hayden, 2012 WL 3597422 (Bankr. N.D. Ga. July 6, 2012).

    Filed under:
    USA, Georgia, Banking, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Bankruptcy discharge, Federal Deposit Insurance Corporation (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Court adopts "purpose" test to determine whether loan is "educational"
    2011-03-07

    BUSSON-SOKOLIK v. MILWAUKEE SCHOOL OF ENGINEERING (February 10, 2011)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Costs in English law, Waiver, Debt, Default judgment, Bad faith, Frivolous litigation, Bankruptcy discharge, United States bankruptcy court
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP

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