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    Lehman bankruptcy court rules safe harbors do not override setoff mutuality requirement
    2010-05-06

    On May 5, 2009, Judge James Peck, the Bankruptcy Judge in the Lehman Brothers bankruptcy cases, held that the safe harbor provisions of the Bankruptcy Code do not override the mutuality requirements for setoff under section 553(a) of the Bankruptcy Code. As a consequence, the Bankruptcy Court prohibited Swedbank, a non-debtor counter party to a swap agreement, from setting off pre-petition claims against Lehman against funds collected for Lehman’s account postpetition. See In re Lehman Bros. Holdings Inc., Bankr. Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Waiver, Safe harbor (law), Swap (finance), Debt, Concession (contract), Title 11 of the US Code, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court, US District Court for SDNY
    Authors:
    Mark C. Ellenberg , Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    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, Title 11 of the US Code, Chevron Corporation, 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
    2012 year in review – part 1
    2012-12-21

    March 9, 2012: Publication of Dynegy Examiner’s Report

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Fiduciary, Debt, United States bankruptcy court, Eleventh Circuit, US District Court for SDNY
    Authors:
    Peter M. Friedman , Joseph Zujkowski
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    ION Media: second-lien lenders beware
    2010-04-15

    Despite the prevalence of first-lien/secondlien structures in the loan market over the course of the recently-ended leveraged transaction cycle, fully-litigated cases interpreting the provisions of first-lien/second-lien intercreditor agreements remain something of a rarity. As a result, cases providing guidance on the extent to which customary waivers included in such intercreditor agreements would be enforced are always welcomed by finance practitioners. It comes as no surprise then, that the decision of Judge Peck of the U.S.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Waiver, Debt, Personal property, Standing (law), Leverage (finance), Secured loan, Federal Communications Commission (USA), United States bankruptcy court
    Authors:
    Ingrid Bagby , Michele C. Maman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Ninth Circuit Bankruptcy Appellate Panel’s decision limits ability to purchase assets in a section 363 sale free and clear of junior liens
    2008-10-31

    In Clear Channel Outdoor, Inc. v.Knupfer (In re PW, LLC),1 the United States Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) addressed the issue of whether a secured creditor had purchased estate property free and clear of liens, claims and encumbrances outside of a plan of reorganization.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Interest, Debt, Good faith, Secured creditor, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    IRS issues new regulations defining “publicly traded property” for purposes of determining the issue price of debt instruments that are significantly modified in a restructuring or issued for property
    2012-09-26

    I. Summary

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Tax, Cadwalader Wickersham & Taft LLP, Public company, Debt, Securities Exchange Act 1934 (USA)
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    The rise of reinstatement: lessons learned from Spectrum and Charter
    2010-04-15

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Conflict of laws, Credit (finance), Debtor, Interest, Debt, Maturity (finance), Default (finance), Title 11 of the US Code
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Factoring transaction subject to avoidance as unauthorized post-petition transfer
    2008-10-31

    In Aalfs v. Wirum (In re Straightline Investments, Inc.),1 the United States Court of Appeals for the Ninth Circuit considered whether a post-petition factoring of accounts receivable by the debtor was an avoidable transfer under section 549 of the Bankruptcy Code. The Court of Appeals affirmed the Bankruptcy Court, finding that the post-petition transfer had been properly avoided and that the lower court was justified in allowing the trustee both to recover the accounts receivable and their proceeds and to retain the consideration paid by the transferee.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Commercial property, Accounts receivable, Consideration, Debt, Precondition, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Frenville – gone but not forgotten: Third Circuit prohibits retroactive application of Grossman’s
    2012-06-01

    The ability to discharge debts (i.e., liability on a claim) is essential to the fundamental goal of chapter 11 of the Bankruptcy Code – providing debtors with a fresh start by resolving all claims that arose before confirmation of the debtor’s plan of reorganization.  In determining the universe of debts eligible for discharge, Third Circuit courts labored for many years underAvellino v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Ex post facto law, Debt, Title 11 of the US Code, Third Circuit
    Authors:
    Audrey Aden Doline
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    SDNY Bankruptcy Court thwarts takeover by claims purchaser
    2010-04-15

    A creditor’s ability to vote on a plan of reorganization is one of its most fundamental rights in a chapter 11 bankruptcy. For strategic investors in distressed debt, the power to vote—and potentially control a voting class (or obtain a blocking position in that class)— can be a critical tool in maximizing value and return on investment. Investors should be aware, however, that a recent decision by Judge Robert E.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Discovery, Hedge funds, Debt, Distressed securities, Secured loan, Title 11 of the US Code, Dish Network, United States bankruptcy court, US District Court for SDNY
    Authors:
    Peter M. Friedman , Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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