Late the night of Nov. 25, LandAmerica Financial Group, Inc. and its subsidiary, LandAmerica 1031 Exchange Services, Inc., filed a Chapter 11 petition in the U.S. Bankruptcy Court for the Eastern District of Virginia ("Bankruptcy Court"), seeking bankruptcy protection for both entities. The action does not cover Commonwealth Land Title Insurance Company or Lawyers Title Insurance Company, two LandAmerica subsidiaries that are each domiciled in the State of Nebraska.
As the Seventh Circuit has recently made clear in Airadigm Communications, Inc. v. FCC, bankruptcy courts have the discretion under Bankruptcy Code §524 to approve a release contained in a Plan of Reorganization of a party which did not seek bankruptcy protection. Such a non-debtor release is more likely to be approved by the bankruptcy court where the creditors do not object to the confirmation of the Plan or vote to approve the Plan.
While some states have mandated delays to the foreclosure process, curbing the number of foreclosure filings in recent months, many report that such legislation is only a temporary cure. Foreclosure filings include default notices, auction sale notices and bank repossessions. According to James J. Saccacio, chief executive officer of RealtyTrac, October marked the 34th consecutive month where U.S. foreclosure activity increased compared to the prior year. RealtyTrac U.S.
Sellers should be proactive in taking steps to protect themselves from a distressed buyer’s non-payment.
In the current economic downturn, sellers are dealing with many formerly good customers whose financial health is deteriorating. To protect their interests, sellers should assess their rights under applicable contracts and law and develop a strategy to minimize their exposure.
Step 1 – Assess the Parties’ Contractual Rights
As our economy slides into what could be a long and severe recession, retail bankruptcies are expected to increase. Landlords are presented with a myriad of problems when one of their tenants files for bankruptcy. Although many of the obligations and rights of landlords are well established by current bankruptcy law, a novel question arises when a tenant files for bankruptcy while a landlord is in the process of constructing tenant improvements or is on the verge of providing a tenant allowance. Given the tenant’s right to reject its lease, a landlord is faced with a difficult decision.
On November 14, 2008, a letter was sent to derivatives counterparties of Lehman Brothers Holdings Inc. and its affiliates (collectively, “Lehman”) notifying them of Lehman’s Motion to Settle or Assign Derivative Contracts. The letter concerns a motion filed in the bankruptcy court by Lehman Brothers Debtors on November 13, 2008, which seeks to establish two procedures relating to its pre-petition derivative contracts with counterparties.
AUTOMOTIVE
EZ Lube LLC, Express Lube Inc. filed for Chapter 11 protection in Delaware.
Key Plastics files prepackaged Chapter 11 petition; secured $20M in DIP financing.
Precision Parts International filed Chapter 11 petition; commences winding down operations.
BROADCASTING
Equity Media Holdings, Corp. filed for Chapter 11; secured lender seeks conversion to Chapter 7
ENERGY
Reports on the White House administration and members of Congress have suggested that the Treasury Department is nearing a decision to provide assistance to at least two of the Big Three U.S. automakers.
A federal bankruptcy court, applying New York law, has dismissed an adversary proceeding brought by a bankrupt home mortgage company against its directors and officers liability insurers, holding that coverage for a pre-petition lawsuit against the mortgage company was barred by application of an “inadequate consideration” exclusion. Delta Fin. Corp. v. Westchester Surplus Lines Ins. Co., Case No. 07-11880 (CSS) (Jointly Administered) (Bankr. D. Del. Dec. 15, 2008). The court also held that the coverage dispute was a non-core proceeding.
Extending credit to risky customers in the automotive industry has increasingly required active and careful management of the prospective sale and the account receivable to assure payment. The news of GM’s, Ford’s and Chrysler’s financial condition, and any likely affect of their bankruptcy on its suppliers, has changed the definition of “credit risk” to include otherwise traditionally “credit-worthy” customers that operate in financially-uncertain industries.