We are seeing more and more challenges by borrowers to swaps. No big surprise since, with falling interest rates over the past few years, the borrowers are on the wrong end of the transactions. Although swaps are considered independent of the loans, they are often secured by the same collateral and are usually crossdefaulted with the loans, so the obligations that arise from early termination (which can be significant) become part of the collection process and are being fought vigorously by borrowers.

In re Leslie Controls, Inc., (Bankr. D. Del., Case No. 10-12199, 2010)

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Sovereign Bank v Hepner (In re Roser), 613 F.3d 1240 (10th Cir. 2010).

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Introduction

Hitchin Post Steak Co v General Electric Capital Corporation (In re HP Distribution, LLP), 436 B.R. 679 (Bankr. D. Kan. 2010)

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The United States Bankruptcy Court for the District of Kansas considered whether commercial vehicle leases that contained Terminal Rental Adjustment Clauses (or TRAC provisions) were true leases under Section 365 of the Bankruptcy Code or, instead, disguised financing transactions. The court held that the TRAC leases were true leases that must be either assumed or assigned pursuant to the terms of Section 365.

Parks v. Dittmar (In re Dittmar), 618 F.3d 1199 (10th Cir. 2010)

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Burtch v. Detroit Forming, Inc. (In re Archway Cookies), 435 B.R. 234 (Bankr. D. Del. 2010)

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Reclamation claimants have long enjoyed special protections under Bankruptcy Code section 546(c), which recognizes that “the rights and powers of a trustee... are subject to the right of a seller of goods,” including reclamation rights under Section 2-702 of the Uniform Commercial Code. At a minimum, Section 2-702 clearly requires that a reclamation claimant must make demand upon its buyer in order to reclaim its goods and protect its rights. However, Paramount Home Entertainment Inc. v. Circuit City Stores, Inc., 2010 WL 3522089 (ED Va., Sept.

In the first part of this article, we considered the effect of section 365(d)(4) and other Bankruptcy Code sections on retailer debtors and their respective landlords, as well as on how retailer debtors can utilize the holiday sales season to implement a successful reorganization.

In re River Road Hotel Partners, LLC, et al., Case No. 09-B-30029 (Bankr. N.D. Ill. 2010)

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