The current "Great Recession," which began in late 2007 with a maelstrom in the debt capital markets, has necessitated a rethinking of the federal income tax rules governing debt restructurings. The harsh rules2 promulgated by the Internal Revenue Service (IRS) in reaction to the 1991 taxpayer-favorable decision in Cottage Savings v. Commissioner,3 have been inhibiting restructurings. Instead, rules that did not trigger adverse tax results have been needed to induce lenders and borrowers to restructure obligations that can no longer be paid according to their terms.

On December 23, 2010, the Bankruptcy Appellate Panel of the 6th Circuit, upheld the Eastern District of Kentucky’s Bankruptcy Court’s order that post petition rents, revenues or other funds derived from leased real property is property of the estate under 11 U.S.C. §541 and can be used as cash collateral under 11 U.S.C. §363. However, post petition rents can be used as cash collateral only if the debtor can provide adequate protection for the use of those rents through an existing equity cushion in the property.

In a recent decision, CML V, LLC v. Bax, et al., C.A. No 5373-VCL (Del. Ch. Nov. 3, 2010), the Delaware Court of Chancery held that, unlike Delaware corporations, creditors of an insolvent Delaware limited liability company cannot bring derivative actions against the members or managers of the company unless they specifically contract for such rights.

The Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals1 recently issued an opinion of importance in bankruptcy cases involving commercial real estate as the debtor’s only asset, such as a shopping center or office building.

On January 25, 2011, Lehman Brothers filed an amended version of its plan of liquidation (the Plan). Contrasted against its predecessor version, the Plan creates some winners and some losers in terms of the percentage of projected payouts to creditors of various Lehman entities. More important than the percentage distribution, however, may be the means by which the debtors seek to fix a creditor’s claim amount. With regard to claims based on derivatives contracts, Lehman proposes to take a novel – and for holders of those claims, potentially alarming – approach.

The United States Bankruptcy Court for the District of Delaware recently dismissed equitable subordination and fraudulent transfer claims filed by the Official Committee of Unsecured Creditors of Champion Enterprises, Inc. ("Champion") against more than 100 prepetition lenders to Champion (collectively, the "Defendants")1.

On February 11, 2011, in a decision that represents a significant victory for institutional lenders and other proponents of capital market financing, Judge Alan S. Gold of the United States District Court for the Southern District of Florida (the District Court) issued a 113 page opinion overturning a $480 million fraudulent transfer judgment entered by the United States Bankruptcy Court for the Southern District of Florida (the Bankruptcy Court) against the so-called “Transeastern Lenders” in the TOUSA, Inc. (TOUSA) chapter 11 bankruptcy cases.i

The United States District Court for the Southern District of Florida has reversed a bankruptcy court order that had required a group of lenders (“Transeastern Lenders”) to disgorge, as a fraudulent transfer, approximately $421 million paid to them by a joint venture partner (“TOUSA”) in satisfaction of their legitimate, uncontested loans to the joint venture that TOUSA had guaranteed. Together with pre-judgment interest, the total amount to be paid by the Transeastern Lenders was in excess of $480 million.

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.

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.