The U.S. Court of Appeals for the Seventh Circuit held on Aug. 26, 2013 that an investment manager’s “failure to keep client funds properly segregated” and subsequent pledge of those funds “to secure an overnight loan” to stay in business may have constituted: (a) a fraudulent transfer to the lender; and (b) grounds for equitably subordinating the lender’s $312 million secured claim. In re Sentinel Management Group, Inc., 2013 WL 4505152, *1 (7th Cir. Aug. 26, 2013) (“Sentinel II”).

Commercial Finance

Secured creditors need to be aware of recent bankruptcy rulings that affect their rights and interests. These rulings have tested the boundaries of key concepts affecting the ability to "cramdown" and involuntarily restructure a secured creditor’s rights and the valuation of collateral. Secured creditors must therefore be mindful of these developments and risks in guiding their negotiating and litigation strategy against a cramdown threat.

In re ESA Environmental Specialists, Inc., 2013 WL 765705 (4th Cir., Mar. 1, 2013)

CASE SNAPSHOT

Prudential Insurance Company of America v. WestLB AG, 961 N.Y.S. 2d 360 (2012)

CASE SNAPSHOT

In re WEB2B Payment Solutions, Inc., 2013 WL 1188041 (8th Cir. BAP, Mar. 26, 2013)

CASE SNAPSHOT

The bank, which held a possessory lien in the deposit account of the debtor, lost its lien when it turned over the funds in the account to the trustee upon his turnover demand, because the bank failed to seek adequate protection prior to turning over the funds.

FACTUAL BACKGROUND

On a matter of first impression, the Fourth Circuit issued an opinion in the Derivium Capital, LLC bankruptcy case on May 24, 2013,1 affirming the District Court’s ruling that Grayson Consulting Inc. ("Grayson"), the chapter 7 Trustee’s assignee, could not avoid as fraudulent conveyances Wachovia’s2 commissions, fees, and margin interest payments because those payments were protected from recovery by the safe harbor of United States Bankruptcy Code (the "Bankruptcy Code") section 546(e).

The legalization under state law of the marijuana business in Colorado through Amendment 20 (medical marijuana) and Amendment 64 (recreational marijuana) (Amendment 20 and Amendment 64 shall be referred to collectively as the "Colorado Amendments") raises serious issues for banks whose customers or borrowers are involved in the marijuana business in Colorado. The Colorado Amendments do not affect federal law that defines marijuana as a Class 1 controlled substance.

Appellate panel affirms that creditor’s failure to seek adequate protection before turning collateral over to trustee terminates possessory lien.

On March 25, 2013, the Eighth Circuit Bankruptcy Appellate Panel affirmed the bankruptcy court’s order in In re WEB2B Payment Solutions, Inc., holding that a creditor loses its possessory lien when it turns collateral over to the bankruptcy trustee without first seeking adequate protection from the bankruptcy court.

FACTS