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    Delaware Bankruptcy Court decision in SemCrude poses setback to triangular set-off
    2009-01-16

    The United States Bankruptcy Court for the District of Delaware has ruled that a creditor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, despite pre-petition contracts that expressly contemplated multiparty setoff. In re SemCrude, L.P., Case No. 08-11525 (BLS), 2009 WL 68873 (Bankr. D. Del. Jan. 9, 2009). The Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to mutual obligations between a debtor and a single nondebtor.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Federal Reporter, Swap (finance), Debt, Limited partnership, Subsidiary, Chevron Corporation, Title 11 of the US Code, Second Circuit, Delaware Supreme Court, United States bankruptcy court, Seventh Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Uncertainty following Ninth Circuit decision may chill asset sales
    2009-01-19

    Last year, the Ninth Circuit BAP determined that the Bankruptcy Code does not permit a secured creditor to credit bid its debt, and purchase estate property free and clear of non-consenting junior liens, outside a plan of reorganization. Uncertainty resulting from the decision in Clear Channel Outdoor, Inc. v. Nancy Knupfer (In re PW, LLC), 391 B.R. 25 (9th Cir. B.A.P. 2008) may chill bidding and asset sales in the Ninth Circuit.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Credit (finance), Debtor, Statutory interpretation, Interest, Debt, Foreclosure, Secured creditor, Title 11 of the US Code, Trustee, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Tax authorities face high hurdles to shield payments from preference actions
    2009-01-19

    In a case that has broad implications for trustees and taxing authorities embroiled in preference avoidance actions, the Bankruptcy Court for the Western District of Missouri weighed in on the parameters of a trustee’s ability to avoid preferential sales and use tax payments under section 547 of the Bankruptcy Code.  

    Overdue Tax Payments

    Filed under:
    USA, Missouri, Insolvency & Restructuring, Litigation, Tax, Reed Smith LLP, Bankruptcy, Credit (finance), Debtor, Debt, Personal property, Constructive trust, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Nondischargeable debt — Lockerby v. Sierra
    2009-01-19

    The U.S. Court of Appeals for the Ninth Circuit has held that a nondischargeable debt for malicious and willful injury must include proof of tortious conduct. An intentional breach of contract does not suffice.  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Breach of contract, Debt, Legal burden of proof, Bankruptcy discharge, US Code, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Continued viability of “earmarking doctrine” defense to preference actions affirmed by Fifth Circuit
    2009-01-30

    In In re Entringer Bakeries, Inc.,1 the United States Court of Appeals for the Fifth Circuit affirmed the viability of the “earmarking doctrine” as a judicially-created defense to a preference action under section 547(b) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Collateral (finance), Leasehold estate, Interest, Debt, Maturity (finance), Liquidation, Secured loan, Small Business Administration (USA), Title 11 of the US Code, Trustee, Supreme Court of the United States, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Is triangular set-off enforceable under US laws?
    2009-01-29

    Introduction:  

    Filed under:
    USA, Delaware, Derivatives, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Reed Smith LLP, Contractual term, Bankruptcy, Debtor, Swap (finance), Debt, Default (finance), Chevron Corporation, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Reed Smith LLP
    Tax planning in a foreclosure
    2009-01-27

    With the country officially in a recession and the lack of available refinancing options continuing, more and more businesses are faced with the realities of foreclosure. While foreclosure often allows a business to wipe the debt slate clean with respect to the foreclosed property, it can also create unintended tax consequences as well as tax planning opportunities.  

    Recourse v. Non-Recourse Debt  

    Filed under:
    USA, Insolvency & Restructuring, Tax, Dykema Gossett PLLC, Debtor, Interest, Limited liability company, Debt, Foreclosure, Deed, Limited partnership, Tax deduction, Fair market value, Refinancing, Conveyancing, Accrued interest, Bankruptcy discharge
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    The Chevron opinion: the end of triangular setoff as we know it?
    2009-02-04

    Setoff is a doctrine based as much on practical considerations as on equitable ones.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Safe harbor (law), Debt, Chevron Corporation, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    White & Case
    Tax complications of bankruptcies in difficult economic times
    2009-02-03

    Given the current state of the economy, it should come as no surprise that business related bankruptcy filings increased 41.6 percent and non-business bankruptcies increased 28.4 percent between June 30, 2007, and June 30, 2008, with more than one million Americans filing for bankruptcy during calendar year 2007, according to the Administrative Office of the U.S. Courts.

    Filed under:
    USA, Insolvency & Restructuring, Tax, Duane Morris LLP, Tax exemption, Credit card, Bankruptcy, Debtor, Tax credit, Taxable income, Debt, Debt relief, Internal Revenue Service (USA), Title 11 of the US Code, Internal Revenue Code (USA)
    Location:
    USA
    Firm:
    Duane Morris LLP
    What the cram-down legislation means to mortgage lenders, servicers and investors
    2009-02-02

    There is a sense of inevitability that Congress will pass legislation allowing a Chapter 13 bankruptcy plan (also referred to as a wage-earner’s plan) to "cram-down" the value of a mortgage on a consumer's principal residence to its market value and/or reset debtor interest rate and monthly payments to an amount that permits them to remain in their homes. This alert summarizes the latest version of H.R.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Venable LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Statutory interpretation, Debt, Mortgage loan, Foreclosure, Secured creditor, Market value, Secured loan, US Senate, US House Committee on the Judiciary, United States bankruptcy court
    Location:
    USA
    Firm:
    Venable LLP

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