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    In the matter of Antonio Barboza, et al. v. New Form, Inc
    2008-10-01

    USCA Ninth Circuit, September 23, 2008

    Click here for a copy of the full decision.

    Filed under:
    USA, Insolvency & Restructuring, Intellectual Property, Litigation, Media & Entertainment, Loeb & Loeb LLP, Bankruptcy, Debtor, Patent infringement, Copyright infringement, Debt, Cease and desist, Statutory damages, US Code, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Loeb & Loeb LLP
    Court enforces pre-petition waiver of automatic stay
    2008-09-30

    In In re Bryan Road LLC,1 the United States Bankruptcy Court for the Southern District of Florida considered whether a waiver of the automatic stay provision included in a prepetition workout agreement is enforceable in the debtor’s subsequent bankruptcy. The Bankruptcy Court enforced the waiver and held the creditor was not bound by the automatic stay after engaging in a four-factor analysis of the agreement and the circumstances surrounding its execution. The Bankruptcy Court cautioned, however, that relief from stay provisions are neither per se enforceable nor self-executing.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Waiver, Interest, Consideration, Mortgage loan, Foreclosure, Bad faith, Refinancing, Default (finance), Capital punishment, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Preferential transfer claims are not subject to pre-petition arbitration agreements
    2008-09-30

    In Bethlehem Steel Corp. v. Moran Towing Corp. (In re Bethlehem Steel Corp.),1 the United States Bankruptcy Court for the Southern District of New York held that preferential transfer claims were not arbitrable. The Court reasoned that because the avoidance powers did not belong to the debtor, but rather were creditor claims that could only be brought by a trustee or debtor-in-possession, they were not subject to the arbitration clauses in contracts to which the creditors were not parties.

    The Dispute and the Arbitration Clauses

    Filed under:
    USA, New York, Arbitration & ADR, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Security (finance), Arbitration clause, Liquidation, Debtor in possession, US Congress, Title 11 of the US Code, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Financial impact of CRE loan workouts and restructurings
    2008-09-25

    At the end of the day, what really drives lender decisions with regard to addressing problem loan modifications, workouts, and restructuring issues revolves around the impact of those decisions on the financial statements condition of the institution.

    Likewise, the regulatory and accounting treatment behind those decisions tends to dictate policy and procedure for the CRE lending and workout areas of the bank.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Bricker & Eckler LLP, Contractual term, Debtor, Collateral (finance), Debt, Portfolio (finance), Cashflow, Debt restructuring
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    Lehman Brothers holdings' bankruptcy has international ramifications
    2008-09-25

    As you are undoubtedly aware, the September 15 Chapter 11 bankruptcy filing in New York by Lehman Brothers Holdings, Inc. (LBHI) represents the single largest insolvency proceeding in US history. With assets and liabilities of more than US$639 billion, the LBHI filing dwarfs the previously largest US bankruptcies. The filing comes at a time of significant destabilization in US capital markets and has global ramifications. In an effort to keep our clients abreast of the LBHI situation, we are providing the following general update of significant events in the proceedings:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Squire Patton Boggs, Bankruptcy, Debtor, Security (finance), Investment banking, Liability (financial accounting), Liquidation, Broker-dealer, Brokerage firm, Electronic trading platform, Barclays, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Additional Lehman affiliate entities file for bankruptcy
    2008-10-11

    Over the past several weeks, several additional Lehman Brothers affiliate entities filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York. For procedural purposes, these bankruptcy petitions will be jointly administered along with the petition filed by Lehman Brothers Holdings, Inc., the lead debtor. These entities include:

    Filed under:
    USA, New York, Insolvency & Restructuring, Alston & Bird LLP, Bankruptcy, Debtor, Commodity, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Counterparty rights in the Lehman Brothers bankruptcy
    2008-10-10

    On September 15, 2008, Lehman Brothers Holdings Inc. filed a voluntary petition for bankruptcy protection, commencing the largest bankruptcy case in U.S. history. Initially, it appeared that many of the operating subsidiaries would remain outside of bankruptcy, but during the past several days, many of them have filed bankruptcy petitions as well. As of this writing, a complete list of the bankrupt Lehman entities (collectively, “Lehman”) is as follows:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Eversheds Sutherland (US) LLP, Bankruptcy, Surety, Debtor, Collateral (finance), Lehman Brothers cases, International Swaps and Derivatives Association, Lehman Brothers, Securities Investor Protection Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    How to cut risk of dealing with a defaulting lender
    2008-10-08

    In the wake of recent bankruptcy filings by several prominent financial institutions, there’s a growing interest in changing standard credit documentation to address the risks of defaulting lenders and nonperforming administrative agents. Here are credit agreement provisions that financial institutions, acting as swingline lenders and letter of credit issuers, can require to protect themselves against the risk of a defaulting lender.

    Filed under:
    USA, Banking, Insolvency & Restructuring, White & Case, Share (finance), Bankruptcy, Letter of credit, Credit (finance), Debtor, Collateral (finance), Interest, Margin (finance), Good faith, Refinancing, Default (finance), Line of credit, Pro rata
    Location:
    USA
    Firm:
    White & Case
    Massachusetts Bankruptcy Court: purchaser of mortgage lacks standing to seek relief from bankruptcy stay to foreclose where it lacks evidence of transfers of mortgage
    2008-10-22

    The United States Bankruptcy Court for the District of Massachusetts recently denied a mortgage purchaser’s Motion for Relief from Automatic Stay of Chapter 13 proceedings on the ground that the purchaser lacked standing where it could not provide documentary evidence showing each transfer of the mortgage. In re Robin Hayes, Case No. 07-13967-JNF (August 19, 2008).

    In November 2004, the Debtor, Robin Hayes, obtained a $324,000 mortgage from Argent Mortgage Company LLC (“Argent Mortgage”). The mortgage subsequently was sold and ultimately ended up with Deutsche Bank.

    Filed under:
    USA, Massachusetts, Banking, Insolvency & Restructuring, Litigation, Locke Lord LLP, Bankruptcy, Debtor, Security (finance), Interest, Subprime lending, Mortgage loan, Foreclosure, Standing (law), Deutsche Bank, Citigroup, United States bankruptcy court, US District Court for District of Massachusetts
    Location:
    USA
    Firm:
    Locke Lord LLP
    Contract rejection claims eligible for setoff under Section 553: rejecting the Delta approach
    2008-10-22

    A creditor’s ability in a bankruptcy case to exercise rights that it has under applicable law to set off an obligation it owes to the debtor against amounts owed by the debtor to it, thereby converting its unsecured claim to a secured claim to the extent of the setoff, is an important entitlement.

     

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Unsecured debt
    Location:
    USA
    Firm:
    Jones Day

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