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    Single asset real estate debtor cannot provide adequate protection to secured creditor for use of creditor's rents as cash collateral unless equity cushion exists in the property
    2011-01-24

    On December 23, 2010, the Bankruptcy Appellate Panel of the 6th Circuit, upheld the Eastern District of Kentucky’s Bankruptcy Court’s order that post petition rents, revenues or other funds derived from leased real property is property of the estate under 11 U.S.C. §541 and can be used as cash collateral under 11 U.S.C. §363. However, post petition rents can be used as cash collateral only if the debtor can provide adequate protection for the use of those rents through an existing equity cushion in the property.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Frost Brown Todd LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Limited liability company, Debt, Mortgage loan, Default (finance), Secured creditor, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Denise H. McClelland
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Creative use of receiverships to solve environmental, construction and other problems in distressed projects
    2011-01-21

    Appointment of a receiver is a flexible remedy for solving serious business problems in distressed projects while reducing delay and risk. A receivership can provide (in addition to reliable management of a property approaching foreclosure) court supervision and certainty without the delay and expense of bankruptcy.

    Filed under:
    USA, California, Insolvency & Restructuring, Farella Braun + Martel LLP, Contamination, Conflict of laws, Debt, Foreclosure, Liability (financial accounting)
    Authors:
    Dean M. Gloster , Gary Kaplan , Matthew J. Lewis
    Location:
    USA
    Firm:
    Farella Braun + Martel LLP
    FDIC board approves interim final rule on new liquidation authority and clarifies treatment of creditor claims
    2011-01-21

    The Board of Directors of the Federal Deposit Insurance Corporation (FDIC) voted on December 18 to approve 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, Katten Muchin Rosenman LLP, Shareholder, Consumer protection, Unsecured debt, Collateral (finance), Board of directors, Debt, Liquidation, Subsidiary, Pro rata, Federal Deposit Insurance Corporation (USA), Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Title 11 of the US Code
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    The Colonial BancGroup, Inc.: FDIC denied right to setoff against demand deposit accounts
    2011-02-03

    On January 24, 2011, the Honorable Dwight H. Williams, Jr. of the U.S. Bankruptcy Court for the Middle District of Alabama denied the Federal Deposit Insurance Corporation’s (“FDIC”) request for relief from the automatic stay in the Colonial BancGroup, Inc.

    Filed under:
    USA, Alabama, Banking, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Bankruptcy, Debtor, Unsecured debt, Debt, Liability (financial accounting), Depository institution, Deposit insurance, US Securities and Exchange Commission, Federal Deposit Insurance Corporation (USA), US Code, United States bankruptcy court
    Authors:
    Barbara R. Mendelson , Alexandra Steinberg Barrage , Jeremy Mandell , Larren M. Nashelsky
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Americanwest Bancorporation: how a Section 363 sale in bankruptcy provides a viable recapitalization option for troubled banks
    2011-02-01

    In the current economic environment, many banks have lost significant capital and are under immense pressure, regulatory and otherwise, to recapitalize. Failure to recapitalize within time frames set by bank regulators can result in a bank’s seizure by its chartering authority and an FDIC receivership.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, Morrison & Foerster LLP, Bankruptcy, Shareholder, Collateral (finance), Security (finance), Fiduciary, Debt, Investment banking, Holding company, Bank holding company, Collateralized debt obligation, Preferred stock, Leverage (finance), Federal Deposit Insurance Corporation (USA), Trustee
    Authors:
    Henry M. Fields , Kenneth E. Kohler , Barbara R. Mendelson , Alexandra Steinberg Barrage
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Second Circuit disapproves "gifting" plan and designates strategic investor’s vote as lacking good faith
    2011-02-10

    On February 7, 2011, the Court of Appeals for the Second Circuit issued a highly significant opinion in two consolidated appeals from the order of the United States District Court for the Southern District of New York affirming the bankruptcy court’s confirmation of a chapter 11 plan of reorganization for DBSD North America and its subsidiaries (DBSD).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Shareholder, Debtor, Unsecured debt, Debt, Good faith, Dissenting opinion, Balance sheet, Unsecured creditor, Leverage (finance), Warrant (finance), Sprint Corporation, Dish Network, Second Circuit, United States bankruptcy court
    Authors:
    Jeffrey A. Marks , Sandra E. Mayerson , Peter A. Zisser
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Bankruptcy court enforces requirement that allonge be affixed to note
    2011-02-07

    In an apparent case of first impression in Massachusetts, the US Bankruptcy Court for the District of Massachusetts recently held that an allonge must be physically affixed to the original promissory note to be effective.

    Filed under:
    USA, Massachusetts, Insolvency & Restructuring, Litigation, Nutter McClennen & Fish LLP, Bankruptcy, Debtor, Debt, Mortgage loan, Standing (law), Capital punishment, Wells Fargo, US Code, Uniform Commercial Code (USA), United States bankruptcy court, US District Court for District of Massachusetts, Massachusetts General Court
    Authors:
    Beth H. Mitchell , Richard S. Rosenstein , Karen Z. Bell
    Location:
    USA
    Firm:
    Nutter McClennen & Fish LLP
    Bad news for debtors in single asset real estate Chapter 11 cases: the Buttermilk Towne Center decision prohibiting use of postpetition rents
    2011-02-07

    The Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals1 recently issued an opinion of importance in bankruptcy cases involving commercial real estate as the debtor’s only asset, such as a shopping center or office building.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Barnes & Thornburg LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Leasehold estate, Interest, Debt, Mortgage loan, Foreclosure, Default (finance), Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Patrick E. Mears , John T. Gregg
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP
    Second Circuit holds that senior creditors’ “gifting” of value to existing shareholder under reorganization plan violates absolute priority rule
    2011-02-10

    The U.S. Court of Appeals for the Second Circuit, on Feb. 7, 2011, held that senior creditors could not “gift” part of their reorganization plan recovery to existing shareholders of the debtor.In re DBSD N. Am., Inc., __ F.3d __, 2011 WL 350480 (2d Cir. Feb. 7, 2011) (2-1) (Lynch, J.) (explainingIn re DBSD N. Am., Inc., 627 F.3d 496 (2d Cir. 2010) (summary opinion)). Its extensive 62-page opinion explained the court’s previous two-page summary ruling of Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Share (finance), Bankruptcy, Shareholder, Debtor, Unsecured debt, Interest, Debt, Standing (law), Unsecured creditor, Sprint Corporation, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Michael L. Cook , Joseph E. Bain
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Looking a gift horse in the mouth: Second Circuit finds class-skipping gift violates absolute priority rule
    2011-02-14

    The Bankruptcy Code sets forth the relative priority of claims against a debtor and the waterfall in which such claims are typically paid. In order for a court to confirm a plan over a dissenting class of creditors – what is commonly called a “cram-down” – the Bankruptcy Code demands thateither (i) the dissenting class receives the full value of its claim, or (ii) no classes junior to that class receive any property under the plan on account of their junior claims or interests. This is known as the “absolute priority rule.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Share (finance), Shareholder, Debtor, Unsecured debt, Interest, Debt, Consent, Secured creditor, Unsecured creditor, Warrant (finance), Secured loan, Second Circuit, United States bankruptcy court, Third Circuit
    Authors:
    Henry J. Jaffe , Deborah Kovsky-Apap
    Location:
    USA
    Firm:
    Troutman Pepper

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