For the first time, individuals filing for bankruptcy protection may soon be able to reduce principal and interest on home mortgage obligations and prevent enforcement of certain mortgages even after entry of a foreclosure judgment.
On February 23, 2009, the Supreme Court of Pennsylvania issued a decision finding that payments made by a failed Pennsylvania insurance company in the ordinary course of business are not recoverable by the statutory liquidator of the insolvent insurer because the payments were not on account of an "antecedent debt" as that term is used in the voidable preference provision of Pennsylvania's Insurance Act.
As a result of the meltdown of the financial markets, lenders are severely constricting new credit facilities and refusing to renew expiring facilities. The Bankruptcy Code's chapter 11 provides a powerful mechanism for an otherwise viable business to restructure and extend its outstanding debt and in many cases, reduce interest rates on loan facilities.
The United States Bankruptcy Court for the Middle District of Pennsylvania recently found that a bankruptcy trustee could not either pierce the corporate veil of a limited liability company to reach the owners of the LLC, nor could the trustee “reverse-pierce” the corporate veil of the owners of the LLC to reach a separate restaurant business that they owned.
One of the key protections afforded to secured creditors under the Bankruptcy Code is the right of a holder of a secured claim to credit bid the allowed amount of its claim as part of a sale process under section 363 of the Bankruptcy Code. Specifically, section 363(k) of the Bankruptcy Code provides that:
Fulfilling the terms of an agreement reached with bondholders in February, Charter Communications submitted a petition for Chapter 11 protection last Friday to the U.S. Bankruptcy Court for the Southern District of New York. The bankruptcy petition would restructure a portion of the debt owed by St. Louis-based Charter, the nation’s fourth largest cable operator with more than 5.5 million subscribers. At the end of last year, Charter listed total debt obligations of $21.7 billion with annual interest costs approaching $2 billion.
When a company files bankruptcy, it is crucial to closely monitor the bankruptcy proceedings from the beginning. After filing its petition, the debtor will likely file numerous “first day motions” intended to stabilize the Debtor’s business and facilitate an efficient case administration. These motions can severely affect the rights of unwary creditors who may find their interests primed by the actions of the debtor in the first few days of the case.
Earlier this year, the United States Bankruptcy Court for the District of Delaware ruled that a nondebtor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, even if the parties had entered into pre-petition contracts that expressly contemplated multiparty setoff.1 In reaching its decision, the Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to “mutual” obligations — i.e., direct obligations between a single obligor and obligee.
As if buying distressed debt is not challenging enough given the underlying business considerations, the possible, and perhaps likely, bankruptcy filing of your soon-to-be borrower presents a maze of issues the note purchaser should consider before acquiring the debt.
1. Know Your Seller