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    When one solution is better than two
    2014-05-14

    Over the years, clients have sought my advice after they have obtained a judgment against a limited liability company or a corporation, and after they have tried, without success, to collect on that judgment.  All of the typical judgment enforcement methods have already failed.  Because judgment debtors generally do not volunteer payment and sometimes will take steps to make it much more difficult for a creditor to collect, this scenario is somewhat common.  In response, clients will ask what they can do.  There are a number of options.  These include putting the ju

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, White Collar Crime, Greenberg Glusker Fields Claman & Machtinger LLP, Bankruptcy, Debtor
    Authors:
    Jeffrey A. Krieger
    Location:
    USA
    Firm:
    Greenberg Glusker Fields Claman & Machtinger LLP
    Virginia bankruptcy court applies Fisker to limit lender’s credit bid
    2014-05-16

    Three months ago, the U.S. District Court in Delaware upheld the bankruptcy court’s decision in In re Fisker Auto. Holdings, Inc., which limited, for “cause,” the amount that the purchaser of a secured lender’s claim could credit bid in connection with an asset sale under section 363 of the Bankruptcy Code.

    Filed under:
    USA, Delaware, Virginia, Insolvency & Restructuring, Litigation, Cooley LLP, Bankruptcy, Debtor, United States bankruptcy court
    Location:
    USA
    Firm:
    Cooley LLP
    New York district court denies proof of claim based on equity interests in non-debtor entities
    2014-05-16

    Finds Bankruptcy Court to be Proper Forum for Claim Objection Despite Forum Selection Clauses in Investor Agreements

    The Southern District of New York recently reiterated the critical difference between creditor claims and equity interests in the bankruptcy context.  In a recent opinion arising out of the Arcapita Bank bankruptcy case, the Court was faced with an objection to a proof of claim filed by an investor, Captain Hani Alsohaibi, who characterized his right to recovery against the debtors as being based on a “corporate investment.”

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Debtor, United States bankruptcy court
    Authors:
    Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Debtor's estate set to expand or contract based on Supreme Court ruling in Clark v. Rameker
    2014-05-20

    Before the Supreme Court this term is the question of whether a beneficiary individual retirement account (an “Inherited IRA”) is exempt from a debtor’s bankruptcy estate under 11 U.S.C. § 522(b)(3)(C) and (d)(12)2 of the Bankruptcy Code. The issue turns on 1) whether the funds in an Inherited IRA are “retirement funds,” and 2) whether an Inherited IRA is considered tax exempt under the Internal Revenue Code (the “Tax Code”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Bankruptcy, Debtor, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Marc P. Solomon , Hanna Lahr
    Location:
    USA
    Firm:
    Burr & Forman LLP
    Energy Future Holding Corp. files a chapter 11 case to restructure roughly $50b of debt
    2014-05-06

    On April 29, 2014, power giant Energy Future Holding Corp. (“Energy Future”), along with 70 subsidiaries, filed for chapter 11 protection in the District of Delaware as part of a deal it has reached through lengthy negotiations with some of its largest senior creditors to restructure roughly $50 billion in debt.

    Filed under:
    USA, Delaware, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Debtor, Debt, Leveraged buyout
    Authors:
    Michael K. Riordan
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Fisker quickly rears its ugly head: the end of credit bidding in a loan to own investment?
    2014-05-08

    It has not taken long for another bankruptcy court to question the propriety of allowing secured creditors to credit bid their loans. You may recall that in the case of Fisker Automotive Holdings, Inc., et al. a Delaware bankruptcy court limited a creditor’s ability to credit bid based on self-serving testimony from a competing bidder that it would not participate in an auction absent the court capping the secured creditor’s credit bid.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Richards Kibbe & Orbe LLP, Credit (finance), Debtor, Secured creditor, Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Richards Kibbe & Orbe LLP
    Limitations on secured creditors’ rights to credit bid
    2014-05-08

    Earlier this year, we reported on a decision limiting a secured creditor's right to credit bid purchased debt (capping the credit bid at the discounted price paid for the debt) to facilitate an auction in Fisker Automotive Holdings' chapter 11 case.1 In the weeks that followed, the debtor held a competitive (nineteen-round) auction and ultimately selected Wanxiang America Corporation, rather than the secured creditor, as the w

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Debtor, Secured creditor, Secured loan, United States bankruptcy court
    Authors:
    Kelley A. Cornish , Douglas R. Davis , Alice Belisle Eaton , Brian S. Hermann , Alan W Kornberg , Elizabeth R. McColm
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Bay Club Partners-472, LLC
    2014-05-09

    A recent decision from an Oregon bankruptcy court provides a cautionary tale for lenders attempting to “bankruptcy proof” their borrowers. 

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Dykema Gossett PLLC, Bankruptcy, Debtor, Limited liability company, United States bankruptcy court
    Authors:
    Richard M. Bendix, Jr.
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    Oregon bankruptcy court throws out pre-bankruptcy waiver
    2014-05-12

    The inclusion of pre-bankruptcy waivers in “standard issue” credit documents has generated a host of litigation in bankruptcy cases about the enforceability of such provisions.

    Filed under:
    USA, Oregon, Insolvency & Restructuring, Litigation, Bracewell LLP, Bankruptcy, Debtor, Waiver, Covenant (law), United States bankruptcy court
    Location:
    USA
    Firm:
    Bracewell LLP
    Supreme Court denies certiorari to hear Bank of America’s challenge to Eleventh Circuit’s rule regarding lien stripping in chapter 7 bankruptcy cases
    2014-05-12

    The United States Supreme Court recently denied certiorari to an Eleventh Circuit appeal which would have addressed the issue of whether section 506(d) of the Bankruptcy Code permits a chapter 7 debt to “strip off”1 a wholly unsecured junior lien in Bank of America, N.A. v. Sinkfield.2 As a result, wholly unsecured junior creditors will continue to suffer the harsh consequence of having its junior lien completely “stripped off” in Eleventh Circuit bankruptcy cases, despite other Circuits around the country holding to the contrary.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Debtor, Small Business Administration (USA), Supreme Court of the United States, Eleventh Circuit
    Location:
    USA
    Firm:
    Burr & Forman LLP

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