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    Real estate law: rethinking receiverships
    2010-12-20

    When defaults spiked for loans underwritten by commercial mortgage-backed securities (CMBS), many Texas attorneys sought state court-appointed receivers for commercial real estate assets.

    Placing a struggling property in receivership has long been a remedy available for lenders, but Texas' relatively expedited and inexpensive nonjudicial foreclosure process limited the remedy's practical value for traditional lenders.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Real Estate, Securitization & Structured Finance, Munsch Hardt Kopf & Harr PC, Debtor, Collateral (finance), Commercial property, Debt, Mortgage loan, Foreclosure, Liability (financial accounting), Due diligence, Underwriting, Default (finance), Commercial mortgage-backed security, Mortgage-backed security, Secured loan
    Authors:
    Steven A. Caufield
    Location:
    USA
    Firm:
    Munsch Hardt Kopf & Harr PC
    Bankruptcy professionals take notice, Part II: another court sinks another set of professionals
    2010-12-20

    On November 10 we posted to Basis Points a blog concerning a Delaware Bankruptcy Court decision (In re Universal Building Products) that fired a warning shot across the bows of professionals who solicit Creditors’ Committee proxies from non-clients of their firms (here is the blog).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bracewell LLP, Conflict of interest, Bankruptcy, Debtor, Waiver, Interest, Accounting, Debt, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Bracewell LLP
    Bankruptcy Code does not provide cause of action against private employer for failure to hire based on prior bankruptcy filing
    2010-12-31

    Earlier this month, in Rea v. Federated Investors, 2010 U.S. App. LEXIS 25501 (Dec. 15, 2010), the United States Court of Appeals for the Third Circuit held that while federal law prohibits a private employer from firing or discriminating against an employee who files or has filed for bankruptcy, it does not prohibit a private employer from denying employment to someone simply because he had filed for bankruptcy in the past. Thus, 11 U.S.C. § 525(b) does not create a cause of action against private employers who engage in discriminatory hiring.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Porzio Bromberg & Newman PC, Bankruptcy, Discrimination, Debt, Employment discrimination, US Congress, US Code, Third Circuit
    Authors:
    Michael J. Naporano
    Location:
    USA
    Firm:
    Porzio Bromberg & Newman PC
    Fairpoint wins approval of Vermont regulators for amended reorganization plan
    2011-01-07

    Regional landline network operator Fairpoint Communications is finally poised to emerge from Chapter 11 bankruptcy as a result of the decision of the Vermont Public Safety Board (VPSB) to approve the company’s amended reorganization plan. Vermont had been the lone holdout among Maine, New Hampshire and 15 other states that had previously endorsed the plan. The reorganization was precipitated largely by the financial burden of FairPoint’s $2.3 billion purchase of New England landlines from Verizon Communications in 2008.

    Filed under:
    USA, Vermont, Insolvency & Restructuring, Telecoms, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Board of directors, Broadband, Debt, Verizon Communications, United States bankruptcy court
    Authors:
    Patrick S. Campbell
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    ION Media: developments in intercreditor disputes
    2011-01-05

    With the flood of debt-heavy capital structures created over the past decade, bankruptcy courts have been left to clean up the remnants of many failed transactions. Given the volume of debt provided, courts are likely to continue to be called upon to determine the relative rights of creditors that result from multi-tiered debt structures.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Collateral (finance), Debt, Foreclosure, Refinancing, Subordinated debt, Federal Communications Commission (USA), United States bankruptcy court
    Authors:
    Dick M. Okada , Bryan V. Swatt
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Set-off and 'special accounts'
    2011-01-19

    Published in The Deal, January 5, 2011

    The recent decision in Bank of America, NA v. Lehman Brothers Holdings, Inc. (In re Lehman Brothers Holdings Inc., et. al.), No. 08-13555, Adv. Pro. No. 08-01753, 2010 Bankr. LEXIS 3867 (Bankr. S.D.N.Y. Nov. 16, 2010) has shone a 10,000-watt spotlight onto the scope of common law set-off in New York.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Proskauer Rose LLP, Debtor, Collateral (finance), Waiver, Beneficiary, Debt, Common law, Bank of America, Lehman Brothers
    Authors:
    Joshua W. Thompson , Steven O. Weise
    Location:
    USA
    Firm:
    Proskauer Rose LLP
    U.S. Supreme Court clarifies that Chapter 13 debtors may not deduct car ownership expenses when they make no loan or lease payments
    2011-01-18

    In Ransom v. FIA Card Servs., N.A., --- S.Ct. ----, 2011 WL 66438 (U.S. 2011), the United States Supreme Court took up the question of whether a Chapter 13 debtor who owns his or her vehicle outright (“free and clear”) may claim an allowance for car ownership costs and thereby reduce the amount that he or she will repay creditors. In her first opinion, Justice Kagan answered simply—no. The Ransom opinion has been seen as a victory for not only credit card companies like the one involved but other creditors, as well.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Frost Brown Todd LLP, Bankruptcy, Costs in English law, Debtor, Unsecured debt, Debt, Tax deduction, Internal Revenue Service (USA), Supreme Court of the United States, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    Kyle Melloan
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    FDIC board approves interim final rule on new orderly liquidation authority
    2011-01-18

    The Board of Directors of the Federal Deposit Insurance Corporation, or FDIC, approved an interim final rule clarifying how the agency will treat certain creditor claims under the new orderly liquidation authority established under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Stinson LLP, Shareholder, Consumer protection, Collateral (finance), Board of directors, Market liquidity, Debt, Liquidation, Subordinated debt, Pro rata, Federal Deposit Insurance Corporation (USA), US Congress, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Title 11 of the US Code, Federal Deposit Insurance Act 1950 (USA)
    Authors:
    Stephen M. Quinlivan
    Location:
    USA
    Firm:
    Stinson LLP
    Up against the ivory tower: 2011 brings fresh IRS guidance on debt restructurings
    2011-01-10

    The current "Great Recession," which began in late 2007 with a maelstrom in the debt capital markets, has necessitated a rethinking of the federal income tax rules governing debt restructurings. The harsh rules2 promulgated by the Internal Revenue Service (IRS) in reaction to the 1991 taxpayer-favorable decision in Cottage Savings v. Commissioner,3 have been inhibiting restructurings. Instead, rules that did not trigger adverse tax results have been needed to induce lenders and borrowers to restructure obligations that can no longer be paid according to their terms.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Tax, Greenberg Traurig LLP, Debtor, Interest, Debt, Mortgage loan, Real estate investment trust, Excise, Default (finance), Internal Revenue Service (USA)
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Environmental issues in bankruptcy
    2011-01-31
    1. Introduction

    Congress enacted the current Bankruptcy Code, Sections 101 through 1502 of Title Eleven of the United States Code (as amended, the “Bankruptcy Code”), in 1978, and it took effect late in 1979. Many important federal environmental statutes were enacted around the same time, e.g., Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. Thus, Congress did not fully consider environmental liability schemes when it created the bankruptcy code.

    Filed under:
    USA, Environment & Climate Change, Insolvency & Restructuring, Munsch Hardt Kopf & Harr PC, Environmental remediation, Bankruptcy, Debtor, Consent decree, Injunction, Debt, Liability (financial accounting), Joint and several liability, Bankruptcy discharge, US Congress, US Code, Title 11 of the US Code
    Authors:
    Mary W. Koks , Timothy (Tim) A. Million
    Location:
    USA
    Firm:
    Munsch Hardt Kopf & Harr PC

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