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    United States v. Sperry: a revived threat to owners, directors, managers and directors of distressed organizations
    2014-01-30

    Not-for-profit entities are not immune from the business cycles, risk of lawsuits and other threats to solvency. Managing the collapse of an organization has always required diligence, but recent IRS enforcement initiatives and a recent District Court decision have made these situations even more troublesome. During the wind-down of a failed organization, there has generally been no personal liability for managers who have chosen to pay some vendors over others (except for certain limited statutory exceptions such as trust fund taxes).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Non-profit Organizations, Benesch Friedlander Coplan & Aronoff LLP, Debt, Liquidation
    Authors:
    Caroline E. Richardson
    Location:
    USA
    Firm:
    Benesch Friedlander Coplan & Aronoff LLP
    Seventh Circuit holds that Illinois mortgages need only substantially comply with mortgage form in statute
    2014-01-13

    Recently, the United States Court of Appeals for the Seventh Circuit held that Illinois mortgages entered prior to the amendment of 765 ILCS 5/11 need not strictly conform to the form presented in the statute. In re Crane, --- F.3d ---, 2013 WL 6731850 (7th Cir. Dec. 23, 2013). However, the court’s decision in Crane, considered as a whole, serves as a reminder to secured lenders to closely examine the contents of their mortgages and the requirements of applicable state law.

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Barnes & Thornburg LLP, Debt, Mortgage loan, Constructive notice, United States bankruptcy court, Seventh Circuit
    Authors:
    John T. Gregg , Patrick E. Mears
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP
    Court rules that indirect benefits from subchapter S election can be reasonably equivalent value in fraudulent transfer case
    2014-01-09

    Section 548 of the Bankruptcy Code provides that a transfer made within two years of a bankruptcy filing is fraudulent if the debtor received less than “reasonably equivalent value” in exchange for the transfer and (i) the transfer rendered the debtor insolvent or was made at a time that the debtor was already insolvent or; (ii) the debtor had an unreasonably small amount of capital; or (iii) the debtor intended to incur, or believed that it would incur, debts that it would be unable to pay as they matured.  The fraudulent transfer laws of most states, made applicable in bankruptcy pro

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Shareholder, Debtor, Dividends, Debt, S corporation
    Location:
    USA
    Firm:
    Cooley LLP
    Ninth Circuit overturns longstanding precedent in ruling that bankruptcy courts have power to recharacterize debt claims to equity
    2014-01-10

    In a recent decision, the Court of Appeals for the Ninth Circuit shocked observers by holding that bankruptcy courts have the power to recharacterize claims on account of unpaid debts as equity infusions that cannot be repaid until all creditor claims have been satisfied.  In In re Fitness Holdings Int’l, Inc., 714 F.3d 1141 (9th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Debtor, Debt, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cooley LLP
    Prepayment premiums and make-whole payments
    2013-12-23

    Many loan agreements include clauses that permit borrowers to repay debt prior to the maturity date only if they make additional payments that are typically referred to as “prepayment premiums” or “make-whole payments.” The purpose of such prepayment premiums is to compensate lenders for what would otherwise be the loss of their bargained-for yields for the scheduled lives of their loans.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Cahill Gordon & Reindel LLP, Bankruptcy, Debtor, Debt, Maturity (finance)
    Authors:
    Joel H. Levitin
    Location:
    USA
    Firm:
    Cahill Gordon & Reindel LLP
    Creditor didn't look before it leaped: loses right to stop 363 sale and credit bid
    2013-12-31

    A June 2013 decision from the United States Bankruptcy Court for the Eastern District of North Carolina Greenville Division, In re L.L. Murphrey Company, 2013 WL 2451368 (Bankr. E.D.N.C. June 6, 2013), highlights the importance of due diligence in connection with assignments of security interests.

    Filed under:
    USA, North Carolina, Insolvency & Restructuring, Litigation, Blank Rome LLP, Debtor, Debt, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Linor Shohet
    Location:
    USA
    Firm:
    Blank Rome LLP
    Recharacterization: the debate
    2014-01-02

    In recent years, bankruptcy courts have come closer to reaching a consensus regarding their ability to recharacterize debt into equity. Yet, beneath this consensus lies a deepening divide that lenders should be aware of. Recharacterization challenges “the assertion of a debt against the bankruptcy estate on the ground that the ‘loaned’ capital was actually an equity investment.” In re Insilco Techs., Inc., 480 F.3d 212, 217 (3d Cir. 2007) (internal citations omitted).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Federal Reporter, Debt, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel, Tenth Circuit
    Authors:
    James B. Sowka
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Third Circuit says technical procedural slip-up in bankruptcy proceeding is grounds for FDCPA claim
    2013-12-09

    A recent Third Circuit reversal paves the way for Fair Debt Collection Practices Act (FDCPA) lawsuits based on minor procedural mishaps in bankruptcy court. This contradicts the law in the Second and Ninth Circuits and in many district and bankruptcy courts that previously have found that participation in bankruptcy proceedings is not an attempt to collect a debt and thus not grounds for an FDCPA claim.   

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dykema Gossett PLLC, Bankruptcy, Debtor, Debt, Subpoena, Fair Debt Collection Practices Act 1977 (USA), United States bankruptcy court, Third Circuit
    Authors:
    Amy R. Jonker
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    Recent ResCap decision holds that fair market value note exchange does not create original issue discount for bankruptcy claims purposes
    2013-12-03

    On November 15, 2013, the United States Bankruptcy Court for the Southern District of New York (Glenn, J.) issued a lengthy decision1 in the Chapter 11 case of Residential Capital, LLC (“ResCap”). An important holding contained in this decision is that the bankruptcy claims of holders of notes issued with original issue discount (or OID) for tax and accounting purposes in a “fair value” exchange (an exchange for notes with a lower face amount) need not be reduced by any unaccreted OID.2  

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cahill Gordon & Reindel LLP, Bankruptcy, Debt, Mortgage loan, Fair market value, United States bankruptcy court
    Authors:
    Joel H. Levitin , Richard A. Stieglitz Jr.
    Location:
    USA
    Firm:
    Cahill Gordon & Reindel LLP
    Interesting ResCap factOID – court rejects effort to disallow portion of bond claims based on “original issue discount”
    2013-12-03

    In an opinion that will have a significant impact on the viability of debt for debt exchanges and out of court restructurings, Judge Martin Glenn of the U.S.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Collateral (finance), Debt, Maturity (finance), Fair market value
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP

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