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    Recent Eighth Circuit bankruptcy decisions
    2010-11-08

    In October 2010, several important Eighth Circuit Bankruptcy Court decisions were issued. This article summarizes those decisions.

    The National Benevolent Association of the Christian Church (Disciples of Christ), et. al v. Weil, Gotshal & Manges, LLP, No. 09-6084, 09-6085 (8th Cir. BAP 10/8/10)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Larkin Hoffman Daly & Lindgren Ltd, Debtor, Standing (law), Remand (court procedure), Involuntary dismissal, Domestic violence, Subject-matter jurisdiction, Trustee, Eighth Circuit, United States bankruptcy court, Fifth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Larkin Hoffman Daly & Lindgren Ltd
    Compensation distributions triggered by events outside the debtor’s control are property of the estate and subject to avoidance
    2010-12-01

    Parks v. Dittmar (In re Dittmar), 618 F.3d 1199 (10th Cir. 2010)

    CASE SNAPSHOT

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Option (finance), Initial public offerings, Dissenting opinion, Bankruptcy Appellate Panel, Tenth Circuit, Circuit court
    Authors:
    Christopher O. Rivas
    Location:
    USA
    Firm:
    Reed Smith LLP
    LLC agreement prohibiting bankruptcy filing held enforceable
    2010-12-14

    Courts generally agree that pre-petition agreements to forgo the protec-tions of bankruptcy are invalid as against public policy. A recent Tenth Cir-cuit Bankruptcy Appellate Panel decision calls this accepted premise into question by holding that provisions contained in a limited liability company agreement that expressly barred the company, and restricted the manager, from filing a bankruptcy petition were enforceable. DB Capital Holdings, LLC v. Aspen HH Ventures, LLC (In re DB Capital Holdings, LLC), No. 10-046, 2010 Bankr. LEXIS 4176 (B.A.P. 10th Cir., Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Conflict of laws, Debtor, Limited liability company, Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    United States Bankruptcy Appellate Panel of the Tenth Circuit upholds provision in LLC agreement prohibiting filing of bankruptcy
    2011-01-04

    In nearly every bankruptcy proceeding there is some constituency that ends up having its claim or interest impaired. Not surprisingly, therefore, these same constituencies would like to avoid that outcome by restricting the debtor’s ability to commence bankruptcy in the first place.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Bankruptcy, Debtor, Injunction, Limited liability company, Foreclosure, Condominium, Bad faith, Default (finance), Choice of law, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Authors:
    Francis J. Lawall , Evelyn J. Meltzer
    Location:
    USA
    Firm:
    Troutman Pepper
    U.S. Supreme Court clarifies that Chapter 13 debtors may not deduct car ownership expenses when they make no loan or lease payments
    2011-01-18

    In Ransom v. FIA Card Servs., N.A., --- S.Ct. ----, 2011 WL 66438 (U.S. 2011), the United States Supreme Court took up the question of whether a Chapter 13 debtor who owns his or her vehicle outright (“free and clear”) may claim an allowance for car ownership costs and thereby reduce the amount that he or she will repay creditors. In her first opinion, Justice Kagan answered simply—no. The Ransom opinion has been seen as a victory for not only credit card companies like the one involved but other creditors, as well.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Frost Brown Todd LLP, Bankruptcy, Costs in English law, Debtor, Unsecured debt, Debt, Tax deduction, Internal Revenue Service (USA), Supreme Court of the United States, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    Kyle Melloan
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Bankruptcy panel enforces LLC agreement's prohibition on bankruptcy filing
    2011-01-17

    A Bankruptcy Appellate Panel (BAP) of the Tenth Circuit recently upheld a bankruptcy court’s dismissal of an LLC’s Chapter 11 bankruptcy petition on the ground that the LLC’s operating agreement barred the LLC from filing for bankruptcy. DB Capital Holdings, LLC v. Aspen HH Ventures, LLC (In re DB Capital Holdings, LLC), No. CO-10-046, 2010 Bankr. LEXIS 4176 (B.A.P. 10th Cir., Dec. 6, 2010).

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Stoel Rives LLP, Bankruptcy, Debtor, Limited liability company, Standing (law), Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Location:
    USA
    Firm:
    Stoel Rives LLP
    Sixth Circuit bankruptcy panel: replacement lien in post-petition rent is not adequate protection if lender already has lien
    2011-01-14

    The Bankruptcy Appellate Panel for the Sixth Circuit (BAP) recently held that a mortgagee that held a collateral assignment of rents on property in which the debtor had no equity was not adequately protected by cash collateral orders entered by the bankruptcy court that granted the lender a "replacement lien" on post-petition rents.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Interest, Mortgage loan, Conveyancing, Default (finance), Secured loan, Bank of America, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Michael H. Reed , Michael J. Custer
    Location:
    USA
    Firm:
    Troutman Pepper
    Single asset real estate debtor cannot provide adequate protection to secured creditor for use of creditor's rents as cash collateral unless equity cushion exists in the property
    2011-01-24

    On December 23, 2010, the Bankruptcy Appellate Panel of the 6th Circuit, upheld the Eastern District of Kentucky’s Bankruptcy Court’s order that post petition rents, revenues or other funds derived from leased real property is property of the estate under 11 U.S.C. §541 and can be used as cash collateral under 11 U.S.C. §363. However, post petition rents can be used as cash collateral only if the debtor can provide adequate protection for the use of those rents through an existing equity cushion in the property.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Frost Brown Todd LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Limited liability company, Debt, Mortgage loan, Default (finance), Secured creditor, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Denise H. McClelland
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Bad news for debtors in single asset real estate Chapter 11 cases: the Buttermilk Towne Center decision prohibiting use of postpetition rents
    2011-02-07

    The Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals1 recently issued an opinion of importance in bankruptcy cases involving commercial real estate as the debtor’s only asset, such as a shopping center or office building.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Barnes & Thornburg LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Leasehold estate, Interest, Debt, Mortgage loan, Foreclosure, Default (finance), Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Patrick E. Mears , John T. Gregg
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP
    Recent decision limits utilization of non-consenting secured creditor's cash collateral
    2011-02-28

    The ability of a single asset real estate debtor in a bankruptcy case to utilize a non-consenting secured creditor's cash collateral has been limited by a recent decision from the Bankruptcy Appellate Panel of the Sixth Circuit in In re Buttermilk Towne Center, LLC, 2010 FED App. 0010P (B.A.P. 6th Cir. 2010).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Porter Wright Morris & Arthur LLP, Bankruptcy, Costs in English law, Debtor, Collateral (finance), Federal Reporter, Limited liability company, Secured creditor, Attorney's fee, Bank of America, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Tami Hart Kirby
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur LLP

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