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    District court overturns TOUSA fraudulent transfer decision as to joint venture lenders
    2011-02-16

    On February 11, 2011, the United States District Court for the Southern District of Florida reversed the controversial decision of the Bankruptcy Court in In re TOUSA that required a group of lenders to disgorge nearly a half billion dollars in repayment of indebtedness which the Bankruptcy Court found constituted a fraudulent transfer under Sections 548 and 550 of the Bankruptcy Code.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Sullivan & Worcester LLP, Bankruptcy, Debtor, Debt, Joint venture, Legal burden of proof, Refinancing, Subsidiary, Parent company, Citigroup, United States bankruptcy court, US District Court for Southern District of Florida
    Authors:
    Amy A. Zuccarello
    Location:
    USA
    Firm:
    Sullivan & Worcester LLP
    Good news for mortgage lenders in consumer bankruptcy class actions
    2011-02-16

    While there has not been much good news for the mortgage banking industry coming out of bankruptcy courts in years, a recent opinion issued by the United States Court of Appeals for the Fifth Circuit provides not just good news, but very good news for mortgage lenders. The Fifth Circuit's opinion in Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 609 F.3d 748 (5th Cir.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Baker Donelson Bearman Caldwell & Berkowitz PC, Bankruptcy, Costs in English law, Debtor, Class action, Federal Reporter, Mortgage loan, Wells Fargo, United States bankruptcy court, Fifth Circuit, US District Court for Southern District of Texas
    Authors:
    James H. White
    Location:
    USA
    Firm:
    Baker Donelson Bearman Caldwell & Berkowitz PC
    Important warnings against “gifting plans” and hostile takeover attempts in Chapter 11
    2011-02-17

    The Second Circuit Court of Appeals' February 7, 2011 decision, which reversed the confirmation of a plan of reorganization for DBSD North America, Inc. ("DBSD")1 is likely to have an impact nationwide.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Debt, Good faith, Bright-line rule, Bad faith, Unsecured creditor, Sprint Corporation, Dish Network, Second Circuit, United States bankruptcy court
    Authors:
    Stephen Selbst , Paul Rubin
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    TOUSA fraudulent transfer decision reversed by district court
    2011-02-22

    Reversing a controversial decision and judgment of the bankruptcy court, the United States District Court for the Southern District of Florida has held that a group of lenders who received payment in settlement of their defaulted debt from the proceeds of new loans secured by the assets of certain subsidiaries of TOUSA, Inc. which were not themselves liable on that debt, did not receive fraudulent transfers.

    Filed under:
    USA, Florida, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, Katten Muchin Rosenman LLP, Debtor, Interest, Debt, Foreclosure, Good faith, Default (finance), Subsidiary, Title 11 of the US Code, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Measuring damages in a commercially reasonable way under the Bankruptcy Code
    2011-02-21

    On February 16th, the Third Circuit addressed an issue of first impression and held that the discounted cash flow method was the proper measure of damages under Bankruptcy Code Section 562 when a market price cannot be determined. The parties had entered into a $1.2 billion repurchase agreement for a portfolio of home mortgages. On the day the debtor defaulted, the distressed state of the credit markets made it commercially unreasonable for the purchaser to sell the portfolio and the market price would not reflect the asset's worth.

    Filed under:
    USA, Insolvency & Restructuring, Winston & Strawn LLP, Bond market, Debtor, Mortgage loan, Default (finance), Discounted cash flow, Third Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    District court reverses TOUSA decision
    2011-02-18

    A recent decision from the United States District Court for the Southern District of Florida (the "Court") [1] reversed a controversial 2009 decision from the Bankruptcy Court in the litigation styled Official Committee of Unsecured Creditors of TOUSA, Inc. v. Citicorp North America, Inc.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, LeClairRyan, Bond (finance), Bankruptcy, Debtor, Interest, Debt, Legal burden of proof, Due diligence, Bad faith, Default (finance), Subsidiary, Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    LeClairRyan
    Third Circuit affirms discounted cash flow as commercially reasonable measure of repurchase agreement damages claim
    2011-02-18

    The United States Third Circuit Court of Appeals (the "Third Circuit") issued an opinion on February 16, 2011 in the American Home Mortgage chapter 11 proceeding that upheld a determination by the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") on the valuation of a creditor’s claim that in connection with the termination and acceleration of a mortgage loan repurchase agreement.1 The decision is significant because the Third Circuit affirmed the Bankruptcy Court’s decision that the post-acceleration market value of the mortgage loans was not a relevant m

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dentons, Debtor, Statutory interpretation, Mortgage loan, Default (finance), Market value, Valuation (finance), Discounted cash flow, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Aimee M. Cummo , Hugh M. McDonald , E. Lee Smith
    Location:
    USA
    Firm:
    Dentons
    Bankruptcy reorganization
    2011-02-28

    The taxpayer was able to convince the court that the creditors who got the stock in the reorganization were not the prior owners. Because the events occurred in 1992, under a prior version of the continuity of proprietary interest rules, continuity of ownership was broken and a section 338(h)(10) election could be made and the basis in the assets inside the corporation stepped up to fair market value, with no tax liability because the seller was in bankruptcy with large net operating losses (NOLs).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Alston & Bird LLP, Tax exemption, Bankruptcy, Shareholder, Debtor, Interest, Federal Reporter, Debt, Liquidation, Fair market value, Subsidiary, McDonald's, Seventh Circuit
    Authors:
    Jasper L. (Jack) Cummings , Jr.
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Recent decision limits utilization of non-consenting secured creditor's cash collateral
    2011-02-28

    The ability of a single asset real estate debtor in a bankruptcy case to utilize a non-consenting secured creditor's cash collateral has been limited by a recent decision from the Bankruptcy Appellate Panel of the Sixth Circuit in In re Buttermilk Towne Center, LLC, 2010 FED App. 0010P (B.A.P. 6th Cir. 2010).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Porter Wright Morris & Arthur LLP, Bankruptcy, Costs in English law, Debtor, Collateral (finance), Federal Reporter, Limited liability company, Secured creditor, Attorney's fee, Bank of America, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Tami Hart Kirby
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur LLP
    Recent significant commercial bankruptcy filings
    2011-02-28

    The following is a list of some recent larger U.S. bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.  

    DINING  

    Giordano’s Enterprises Inc. filed for Chapter 11 bankruptcy along with 32 of its affiliates.  

    Garden Operations Realty LP, the parent of New York bagel manufacturer H&H Bagels, has filed for Chapter 11 protection.  

    Filed under:
    USA, Insolvency & Restructuring, Masuda Funai Eifert & Mitchell Ltd, Bankruptcy, Debtor, Fraud, Option (finance), Investment company, Subsidiary, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Reinhold F. Krammer
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd

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