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    The Second Circuit confirms that bankruptcy principles trump common law equity
    2009-01-15

    When a creditor seeks equitable relief in a bankruptcy court, must the court always follow common law principles of equity? Not according to several courts, including the Second Circuit. Concluding that the granting of equitable remedies may circumvent the Bankruptcy Code's equitable distribution system, courts have limited the application of equitable remedies in the bankruptcy context.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Surety, Debtor, Fraud, Interest, Division of property, Reinsurance, Unjust enrichment, Common law, Constructive trust, Title 11 of the US Code, Trustee, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Bank insolvency, trusts and depositor protection in the Cayman Islands
    2015-11-20

    The Grand Court of the Cayman Islands has held that depositor protection provisions in Cayman Islands law only apply in respect of depositors with deposits of CI$20,000 (US$24,400) or less.1  Depositors with more than CI$20,000 on deposit do not benefit from such provisions at all, even for their first CI$20,000.  This means that, for persuasive policy reasons, the position in the Cayman Islands differs from the position in the EU under the deposit guarantee scheme.

    Filed under:
    Cayman Islands, Banking, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Maples Group, Constructive trust
    Authors:
    James Eldridge , Nick Herrod
    Location:
    Cayman Islands
    Firm:
    Maples Group
    U.S. Court Not Bound by Korean Law Conferring Exclusive Jurisdiction in Shareholder’s Derivative Actions
    2019-01-03

    Shareholder of a Korean corporation (“Cuzco Korea”), the sole member of a chapter 11 limited liability company debtor (“Cuzco USA” or the “Debtor”), brought an adversary proceeding against the Debtor and others, asserting claims directly, derivatively on behalf of Cuzco Korea and “double derivatively” on behalf of the Debtor. On the defendants’ motion to dismiss, the bankruptcy court for the district of Hawaii was required to consider the impact of Korean law on the derivative claims as well as notions of forum non conveniens.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Dechert LLP, Limited liability company, Unjust enrichment, Constructive trust, United States bankruptcy court
    Location:
    USA
    Firm:
    Dechert LLP
    The Second Circuit confirms that bankruptcy principles trump common law equity
    2009-01-15

    When a creditor seeks equitable relief in a bankruptcy court, must the court always follow common law principles of equity? Not according to several courts, including the Second Circuit. Concluding that the granting of equitable remedies may circumvent the Bankruptcy Code's equitable distribution system, courts have limited the application of equitable remedies in the bankruptcy context.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Surety, Debtor, Fraud, Interest, Division of property, Reinsurance, Unjust enrichment, Common law, Constructive trust, Title 11 of the US Code, SCOTUS, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    White & Case LLP
    Beware of the constructive trust
    2015-03-24

    The existence of trusts that may be connected to a borrower’s assets can be a lending hazard. They do not appear on PPSA search print-outs and, in many cases, they are not shown on a borrower’s financial statements and cannot be searched through traditional due diligence methods.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor, Unjust enrichment, Unsecured creditor, Constructive trust
    Location:
    Canada
    Firm:
    Gowling WLG
    Is it time to stop all this intermingling?
    2009-09-17

    The Alberta Court of Appeal recently ruled on a case1 dealing with the priority of claims to the bank accounts of a petroleum operator which had gone into receivership, where the operatorship was governed by the 1990 CAPL Operating Procedure. The operator had failed to pay to the non-operators revenues of approximately $300,000, having only $58,000 left in the commingled account. The Operating Procedure imposes a trust on the production revenues but also expressly allows intermingling of these funds with the operator's general funds.

    Filed under:
    Canada, Alberta, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Breach of contract, Fiduciary, Legal burden of proof, Dissenting opinion, Secured creditor, Constructive trust, Court of Appeal of England & Wales, Court of Appeal of Alberta
    Location:
    Canada
    Firm:
    Gowling WLG
    Section 1521(a)(7)’s Restrictions Found Inapplicable to State Law Fraudulent Conveyance Actions
    2017-04-06

    On March 23, 2017, the U.S. Bankruptcy Court for the Southern District of Florida (the “Court”) issued an opinion in the chapter 15 case of Banco Cruzeiro do Sul, S.A., a Brazilian bank (“BCSUL” or the “Debtor”), holding, among other things, that section 1521(a)(7) of the Bankruptcy Code does not prevent foreign representatives from commencing state law fraudulent conveyance actions. See Laspro Consultores LTDA v. Alinia Corp. (In re Massa Falida Do Banco Cruzeiro Do Sul S.A.), No. 14-22974-BKC-LMI, Adv. Pro. No. 16-01315-LMI, 2017 WL 1102814 (Bankr. S.D. Fla.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cole Schotz PC, Bankruptcy, Debtor, Liquidation, Constructive trust, US Code, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Jacob S. Frumkin
    Location:
    USA
    Firm:
    Cole Schotz PC
    Sun Indalex Finance, LLC v United Steelworkers: remedial trusts in the commercial context
    2013-02-27

    The Supreme Court of Canada’s decision inSun Indalex Finance, LLC v United Steelworkers, 2013 SCC 6, has a number of implications for employers, pension plan administrators, as well as both secured and unsecured creditors.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, DLA Piper, Beneficiary, Constructive trust, United Steelworkers, Court of Appeal of England & Wales, Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    DLA Piper
    Breach of fiduciary duty by insiders of Chapter 11 debtors
    2008-03-12

    The U.S. Court of Appeals for the Eighth Circuit recently held that insiders who control the operations of a debtor owe a duty, as fiduciaries, to refrain from self-dealing. In re Brook Valley VII, Joint Venture (Lange v. Schropp), 496 F.3d 892 (8th Cir. 2007). The controlling insiders of two Chapter 11 debtors had thus breached their fiduciary duties to the debtors when they caused the debtors to consent to a foreclosure sale of estate properties and then secretly purchased the properties for themselves at the sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Conflict of interest, Bankruptcy, Debtor, Breach of contract, Fiduciary, Foreclosure, Duty of care, Constructive trust, Eighth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Affirmative insurance - Dueling motions to dismiss, denied
    2017-03-30

    In a 33 page decision released March 29, 2017, Judge Sontchi of the Delaware Bankruptcy Court ruled on competing motions to dismiss the remaining claims and counterclaims in an adversary proceeding in the Affirmative Insurance bankruptcy – Adversary Proceeding Case No. 16-50425.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Subject-matter jurisdiction, Liquidator (law), Constructive trust
    Location:
    USA
    Firm:
    Fox Rothschild LLP

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