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    Continued viability of “earmarking doctrine” defense to preference actions affirmed by Fifth Circuit
    2009-01-30

    In In re Entringer Bakeries, Inc.,1 the United States Court of Appeals for the Fifth Circuit affirmed the viability of the “earmarking doctrine” as a judicially-created defense to a preference action under section 547(b) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Collateral (finance), Leasehold estate, Interest, Debt, Maturity (finance), Liquidation, Secured loan, Small Business Administration (USA), Title 11 of the US Code, Trustee, Supreme Court of the United States, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Recent circuit court equitable subordination decisions emphasize requirement that misconduct result in actual harm to other parties
    2009-01-30

    In recent opinions, the United States Courts of Appeals for the Fifth and Seventh Circuits have revisited the doctrine of equitable subordination and have underscored the requirement that, before a court can equitably subordinate a creditor’s claim, the court must find that other creditors have been harmed by the actions of the creditor. Importantly, both decisions stress that equitable subordination is meant to be remedial and not punitive, and may not be imposed merely because a creditor has engaged in misconduct.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Punitive damages, Bankruptcy, Surety, Debtor, Breach of contract, Fiduciary, Board of directors, Debt, Cashflow, Unsecured creditor, Trustee, United States bankruptcy court, Fifth Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Urban Communicators ruling overturned: secured lenders entitled to presumption of post-petition interest at contract rates
    2009-01-30

    In the March 2008 issue, we discussed a decision from the In re Urban Communicators PCS, Ltd. Partnership1 case. In that decision, the United States Bankruptcy Court for the Southern District of New York held that under section 506(b) of the Bankruptcy Code, the Bankruptcy Court could limit the rate of postpetition interest to be paid to an over-secured creditor to an amount less than the contract interest rate.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Unsecured debt, Interest, Consideration, Debt, Default (finance), Secured creditor, Prejudice, Compound interest, Federal Communications Commission (USA), Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    New bankruptcy cram down and foreclosure prevention legislation introduced
    2009-02-26

    This week, Representative John Conyers introduced the “Helping Families Save Their Homes Act of 2009” (H.R. 1106) (the “Act”), which has been circulated in advance of a vote by the House of Representatives anticipated as early as today. Additional amendments have been offered to the bill, but it is unclear which, if any, will be incorporated into the final text. It is not expected that the Senate will consider its version of the bill until mid-March.

    Filed under:
    USA, Insolvency & Restructuring, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Mortgage loan, Foreclosure, Bond credit rating, Mortgage-backed security, Pro rata, US House of Representatives, US Department of Veterans Affairs, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Third Circuit elaborates on non-statutory insiders
    2009-03-31

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Credit (finance), Debtor, Broadband networks, Fair market value, Refinancing, Line of credit, Subsidiary, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy court modifies success fee payable to debtor’s financial advisor in pre-packaged bankruptcy
    2009-03-31

    Introduction

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Contractual term, Bankruptcy, Debtor, Interest, Contingent fee, Debtor in possession, Capital punishment, Leverage (finance), Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court decision in SemCrude prohibits triangular setoff in absence of safe harbor
    2009-03-31

    Earlier this year, the United States Bankruptcy Court for the District of Delaware ruled that a nondebtor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, even if the parties had entered into pre-petition contracts that expressly contemplated multiparty setoff.1 In reaching its decision, the Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to “mutual” obligations — i.e., direct obligations between a single obligor and obligee.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Safe harbor (law), Debt, Limited partnership, Precondition, Subsidiary, Chevron Corporation, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Madoff and Stanford preview: Bayou Group cases established precedent for clawing back Ponzi scheme payments
    2009-03-31

    As the Madoff Securities and Stanford Financial schemes have unraveled in recent months, financial industry participants have had to scrutinize closely their involvement with these entities. A key issue in each of these cases will be the extent to which the trustee (or similar representative) can “claw back” payments made as part of the Ponzi and related fraudulent schemes. The U.S. Bankruptcy Court for the Southern District of New York recently considered similar facts in Bayou Accredited Fund, LLC v. Redwood Growth Partners, L.P.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Cadwalader Wickersham & Taft LLP, Bankruptcy, Conflict of laws, Debtor, Security (finance), Fraud, Statute of limitations, Hedge funds, Good faith, Unsecured creditor, Title 11 of the US Code, Trustee, United States bankruptcy court
    Authors:
    James McDonnell
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    General Growth Properties bankruptcy court defers final ruling on cash collateral, cash management and DIP financing issues
    2009-05-11

    Following several weeks of speculation about how pending cash collateral, cash management, and debtor-in-possession financing motions might affect basic principles of structured finance, the bankruptcy court deferred a final ruling on the motions and extended the interim cash collateral order. In so doing, Judge Allan L. Gropper of the United States Bankruptcy Court for the Southern District of New York suggested that CMBS lenders organize themselves so that common issues can be identified and resolution expedited.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Legal personality, Debtor, Collateral (finance), Fiduciary, Interest, Debt, Limited partnership, Bad faith, Default (finance), Subsidiary, Commercial mortgage-backed security, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    General Growth Properties bankruptcy court enters final order on cash collateral, cash management, and DIP financing issues
    2009-05-18

    Our May 11th memo entitled “General Growth Properties Bankruptcy Court Defers Final Ruling on Cash Collateral, Cash Management and DIP Financing Issues” concluded that the ultimate impact of the bankruptcy filings of General Growth Properties, Inc. and its affiliates would depend in large part on how the cash collateral and DIP Loan issues were resolved. On May 13th, Judge Allan L. Gropper, the U.S. Bankruptcy Judge before whom these bankruptcies are pending, entered final orders on the pending cash collateral, cash management and debtor-in-possession financing motions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Interest, Limited liability company, Debt, Mortgage loan, Limited partnership, Subsidiary, Commercial mortgage-backed security, Secured loan, United States bankruptcy court
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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