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    Financial services update, vol. 8, number 21
    2013-06-03
    In a case that should alarm secured creditors who thought they could lawfully exercise their secured creditor rights to foreclose on collateral, the Second Circuit Court of Appeals upheld sanctions against a secured creditor that did exactly that. In 2006, the State Employees Federal Credit Union ("SEFCU") made a loan to Mr. Weber, secured by Mr. Weber’s pick-up truck (the principles in this case apply equally in the corporate finance world). After Mr. Weber defaulted on the loan in 2009, SEFCU legally repossessed Mr.
    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Debtor, Collateral (finance), Secured creditor
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Bankruptcy court sanctions home foreclosure processing servicer
    2011-04-18

    On April 7th, a federal bankruptcy court sanctioned Lender Processing Services, Inc., a home foreclosure service provider against whom the Federal Reserve Board and OCC have initiated enforcement action. The opinion explains LPS's business model and that model's failings, and cites case law documenting LPS's historic shortcomings. It reminds litigants that proving a default is the lender's, not counsel's, responsibility. In re Ron Wilson, Sr.  

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Foreclosure, Federal Reserve Board, United States bankruptcy court
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    SIPC trustee's definition of net equity adopted in Madoff case
    2010-03-08

    On March 1st, the bankruptcy court overseeing the bankruptcy proceedings and SIPA liquidation of Bernard L. Madoff Investment Securities upheld the SIPC trustee's method for determining the net equity held by the victims of Madoff's fraud. The SIPC trustee defines net equity as the amount of cash deposited by the customer into his BLMIS customer account less any amounts withdrawn.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Winston & Strawn LLP, Bankruptcy, Security (finance), Fraud, Limited liability company, Liquidation, Securities Investor Protection Corporation, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Judgments against Ponzi scheme net gainers are dischargeable in bankruptcy
    2012-08-27

    On August 20th, the U.S. Court of Appeals for the Tenth Circuit reversed a trial court's ruling finding that judgments against Ponzi scheme "net gainers" were non-dischargeable in bankruptcy. The debtors were early investors in what turned out to be a Ponzi scheme and received more money than they invested. When the Ponzi scheme was uncovered, the state State of Oklahoma sued the debtors for unjust enrichment but not for any securities violations. After the State obtained a judgment on the unjust enrichment claim, the debtors declared bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Tenth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    United States district court overturns widely criticized fraudulent transfer decision – (In re TOUSA, Inc., No. 10-60017-CIV/Gold (S.D. Fla. Feb. 11, 2011))
    2011-02-16

    The United States District Court for the Southern District of Florida has reversed a bankruptcy court order that had required a group of lenders (“Transeastern Lenders”) to disgorge, as a fraudulent transfer, approximately $421 million paid to them by a joint venture partner (“TOUSA”) in satisfaction of their legitimate, uncontested loans to the joint venture that TOUSA had guaranteed. Together with pre-judgment interest, the total amount to be paid by the Transeastern Lenders was in excess of $480 million.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, Winston & Strawn LLP, Bond (finance), Bankruptcy, Interest, Market liquidity, Debt, Joint venture, Default (finance), Subsidiary, Memorandum opinion, Title 11 of the US Code, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Executive compensation
    2010-02-15

    On February 10th, the US Court of Appeals for the Fifth Circuit addressed, in one opinion, two separate appeals arising from a company's Chapter 11 bankruptcy. At the outset, the Court held that a severance payment to the firm's former CEO was a fraudulent transfer. The former CEO was an insider, since he was still CEO when the severance agreement was signed, even though he was not employed when he received the actual payment. The Court held further that the company did not receive equivalent value for the severance payment.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Winston & Strawn LLP, Bankruptcy, Employment contract, Severance package, Fifth Circuit, Chief executive officer
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    ABA interim report on ESI in bankruptcy cases
    2012-06-28

    On March 15, 2012, the American Bar Association’s Electronic Discovery (ESI) in Bankruptcy Working Group (the “Working Group”) published an interim report addressing certain principles and suggested best practices for electronic discovery in bankruptcy cases (the “Interim Report”). The Working Group was formed to study and prepare guidelines or a “best practices” report on the scope and timing of a party’s obligation to preserve ESI in bankruptcy cases.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Liquidation
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Bankruptcy court applies Section 552 to invalidate lender’s security interest in proceeds of FCC license
    2011-01-31

    Recently, a Colorado bankruptcy court considered for the first time the effects of Bankruptcy Code Section 552 on a lender’s security interest in the proceeds of an FCC broadcast license. The court held that a prepetition security interest would not extend to proceeds received from a post-petition transfer of the debtor’s FCC license because the debtor did not have an attachable, prepetition property interest in the proceeds. Such an interest does not arise until the FCC approves an agreement to sell the license.

    Filed under:
    USA, Colorado, Insolvency & Restructuring, Litigation, Media & Entertainment, Winston & Strawn LLP, Bankruptcy, Debtor, Interest, Unsecured creditor, Title 11 of the US Code, Federal Communications Commission (USA), Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Special bankruptcy court considered for financial firms
    2010-01-19

    The Senate Banking Committee is considering the establishment of a special bankruptcy court for financial firms as part of its regulatory reform measures. Bankruptcy.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, United States bankruptcy court
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Bankruptcy court limits federal maritime jurisdiction over Shipping Act violations
    2012-02-13

    On February 10, 2012, Judge Sean H. Lane of the U.S. Bankruptcy Court for the Southern District of New York issued a ruling in a Chapter 15 bankruptcy proceeding where The Containership Company (TCC) is the debtor. Numerous shippers in the proceeding requested that the Bankruptcy Court defer to the Federal Maritime Commission with respect to the shippers' claims that TCC violated the Shipping Act of 1984.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Shipping & Transport, Winston & Strawn LLP, Bankruptcy, Breach of contract, United States bankruptcy court
    Authors:
    David Neier
    Location:
    USA
    Firm:
    Winston & Strawn LLP

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