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    The Third Circuit Weighs In Again on the Meaning of “Unreasonably Small Capital” in Constructively Fraudulent Transfer Avoidance Litigation
    2016-08-08

    In the November/December 2014 edition of the Business Restructuring Review, we discussed a decision handed down by the U.S. District Court for the District of Delaware addressing the meaning of “unreasonably small capital” in the context of constructively fraudulent transfer avoidance litigation. In Whyte ex rel. SemGroup Litig. Trust v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Bankruptcy, Conflict of laws, Debtor, Unsecured debt, Fraud, Interest, Federal Reporter, Debt, Conveyancing, Cashflow, Title 11 of the US Code, Trustee, Third Circuit, Seventh Circuit, US District Court for District of Delaware
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    From the Top in Brief - July/August 2016
    2016-08-08

    The U.S. Supreme Court has handed down two rulings thus far in 2016 (October 2015 Term) involving issues of bankruptcy law. In the first, Husky Int’l Elecs., Inc. v. Ritz, 194 L. Ed. 2d 655, 2016 BL 154812 (2016), the Court addressed the scope of section 523(a)(2)(A) of the Bankruptcy Code, which bars the discharge of any debt of an individual debtor for money, property, services, or credit to the extent obtained by "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition."

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Bankruptcy, Debtor, Fraud, Federal Reporter, Debt, Debt relief, Constitutionality, Dissenting opinion, Bankruptcy discharge, Title 11 of the US Code, Supreme Court of the United States, Fifth Circuit, Third Circuit, Seventh Circuit, First Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Furnisher Does Not Violate FCRA by Reporting Discharged Debt
    2016-08-09

    A district court in Nevada recently granted a mortgage company’s motion to dismiss FCRA claims where the reported debt had been discharged in bankruptcy.The opinion serves as a reminder of the rules governing the reporting of discharged debt.In Riekki v. Bayview Fin. Loan Servicing, the consumer alleged that the subject debt was discharged pursuant to his Chapter 13 bankruptcy and that the creditor continued to report balances through the pendency of the bankruptcy as well as post-petition.Riekki v. Bayview Financial Loan Servicing, 2:15-cv-2427, 2016 U.S. Dist.

    Filed under:
    USA, Nevada, Insolvency & Restructuring, Litigation, Smith Debnam Narron Drake Saintsing & Myers LLP, Bankruptcy, Debt, Mortgage loan, Involuntary dismissal, Credit score, Bankruptcy discharge
    Authors:
    Caren Enloe
    Location:
    USA
    Firm:
    Smith Debnam Narron Drake Saintsing & Myers LLP
    Can You Be Sued for Filing a Claim in a Bankruptcy Case?
    2016-08-08

    Upon receiving notice of a debtor’s bankruptcy case, the prudent debt collector typically files a proof of claim, in the hope of receiving some distribution from the debtor’s bankruptcy estate. Absent a fraudulent claim by the debt collector, the Bankruptcy Code specifically provides for the filing of claims against the debtor’s estate. So how could a debt collector be sued for doing what the Code allows? It could happen if debts a collector actually holds are barred from enforcement under a state statute of limitations.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Lewis Rice LLC, Bankruptcy, Costs in English law, Debtor, Fraud, Fiduciary, Statute of limitations, Federal Reporter, Debt, Misrepresentation, Collection agency, Default (finance), Fair Debt Collection Practices Act 1977 (USA), Trustee, Eighth Circuit, Eleventh Circuit
    Authors:
    John J. Hall , Larry E. Parres
    Location:
    USA
    Firm:
    Lewis Rice LLC
    District Court Opinion Shows Collateral Impact of Crawford Decision
    2016-08-01

    A recent decision out of the Southern District of Georgia shows the collateral impact of the Crawfordv. LVNV Funding proof of claim decision issued by the Eleventh Circuit.

    Filed under:
    USA, Georgia, Company & Commercial, Insolvency & Restructuring, Litigation, Smith Debnam Narron Drake Saintsing & Myers LLP, Bankruptcy, Debtor, Collateral (finance), Federal Reporter, Debt, Good faith, Fair Debt Collection Practices Act 1977 (USA), Trustee, Eleventh Circuit
    Authors:
    Caren Enloe
    Location:
    USA
    Firm:
    Smith Debnam Narron Drake Saintsing & Myers LLP
    Split Fifth Circuit Affirms Success Fee for Financial Advisers
    2016-08-02

    A Chapter 11 debtor’s financial advisers were entitled to a “Success Fee” based on a percentage of a $50-million “debt-to-equity conversion,” held a split U.S. Court of Appeals for the Fifth Circuit on May 4, 2016. In re Valence Technology, Inc., 2016 WL 2587109, *1 (5th Cir. May 4, 2016) (2-1). Key to the opinion was the parties’ concession that the “debt-to-equity conversion qualified as a Private Placement under [their] engagement agreements.” Id., at n.1.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Federal Reporter, Consideration, Debt, Debt relief, Fair market value, Secured creditor, Secured loan, United States bankruptcy court, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Eleventh Circuit Reaffirms its Prior Ruling that Debt Collectors who File Time-Barred Proofs of Claim are Subject to Liability Under the Fair Debt Collections Practices Act, and Further Concludes its Holding does not Place the FDCPA in Conflict with the B
    2016-08-02

    In 2014 the Eleventh Circuit held that a debt collector violates the Fair Debt Collections Practices Act when it filed a proof of claim in a chapter 13 case on a debt that it knows to be time-barred. Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Circ. 2014).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Federal preemption, Bankruptcy, Debtor, Statute of limitations, Federal Reporter, Debt, Collection agency, Unconscionability, Fair Debt Collection Practices Act 1977 (USA), Eleventh Circuit
    Location:
    USA
    Firm:
    Holland & Hart LLP
    Missouri Commercial Receivership Act Creates a New Statutory Scheme Which Presents a More Robust Remedy
    2016-08-03

    The Missouri Commercial Receivership Act (MCRA), passed by the Missouri legislature and just signed into law by Governor Nixon, becomes effective Aug. 28, 2016. It expands, clarifies and fleshes out the existing minimal receivership statute. The MCRA (Sections 515.500 through 515.665 of MO Senate Bill No. 578) outlines a new standardized system for receivership administration under the auspices of the Missouri courts.

    Filed under:
    USA, Missouri, Insolvency & Restructuring, Litigation, Real Estate, Stinson LLP, Bankruptcy, Debtor, Interest, Debt, Personal property, Pro rata
    Authors:
    John G. Young, Jr.
    Location:
    USA
    Firm:
    Stinson LLP
    Employee Pay and the Bankruptcy Stay - Potential Pitfalls Part 2: Garnishment Issues
    2016-08-01

    In a prior post, we set forth the potential liability of employers for collection of debts owed by employees in violation of the bankruptcy stay. To protect themselves from such liability, employers that accrue claims against their employees in the ordinary course of business should implement written protocols designed in consultation with bankruptcy counsel.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Hunton Andrews Kurth LLP, Wage, Bankruptcy, Debtor, Debt, Withholding tax, Tax deduction, California Franchise Tax Board, Ninth Circuit
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Supreme Court to Resolve Circuit Split Over Structured Dismissals
    2016-07-26

    The Supreme Court again will be addressing the powers of bankruptcy courts. At the end of the term, the Court granted certiorari in Czyzewski v. Jevic Holding Corp. to decide whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that violates the statutory priority scheme in the Bankruptcy Code. No. 15-649, 2016 WL 3496769 (S. Ct. June 28, 2016). The Supreme Court is expected to address this fundamental bankruptcy issue sometime early next year.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Debtor, Unsecured debt, Debt, Refinancing, Leveraged buyout, Default (finance), Sun Capital Partners, Supreme Court of the United States, Second Circuit, United States bankruptcy court, Fifth Circuit
    Authors:
    Douglas S. Mintz , Robert Loeb , Monica Perrigino
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP

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