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    No third-party costs order
    2007-07-18

    The company, through its receivers, brought and prosecuted an unsuccessful claim against the defendants. The claim was financed from funds subject to the receivers’ control but the receivers had no beneficial or personal interest in those funds or the outcome of the proceedings. The first defendant sought to recover his costs of the proceedings from the receivers from funds realised in the course of the receivership on the basis that they were the real claimants, and had conducted the proceedings for the benefit of themselves and the bank that had appointed them.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Costs in English law, Interest, Concession (contract), Default (finance)
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Remotely terminating equipment use as enforcement remedy against default: understanding the legal requirements
    2013-04-15

    In recent years, manufacturers and lessors of heavy industrial equipment have installed sophisticated systems into their units which require a computer code be entered in order for the equipment to operate. This computer code may need to be updated or changed periodically. If the purchaser or lessee is in arrears in making payment to the manufacturer or lessor, the manufacturer or lessor may refuse to supply the debtor with the new access code. In effect, the manufacturer or lessor has the ability to remotely render the equipment unusable.

    Filed under:
    Canada, Insolvency & Restructuring, DLA Piper, Debtor, Accounts receivable, Common law, Default (finance)
    Authors:
    M. Sandra Appel
    Location:
    Canada
    Firm:
    DLA Piper
    Fifth Circuit holds mere acceleration does not trigger prepayment premium
    2014-02-06

    The U.S. Court of Appeals for the Fifth Circuit held on Jan. 27, 2014 that a lender’s acceleration due to a borrower’s payment default did not trigger a prepayment premium. In re Denver Merchandise Mart, Inc., 2014 WL 291920, *1 (5th Cir. Jan. 27, 2014) (“Denver Merchandise”). Affirming the lower courts’ application of state law, the court held that “the plain language of the contract does not require the payment of the Prepayment Consideration in the event of mere acceleration.” Id. at *5.  

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    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Interest, Liquidated damages, Default (finance), Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Seventh Circuit holds real estate debtor cannot cram down undersecured lender with bonds
    2012-01-25

    The U.S. Court of Appeals for the Seventh Circuit affirmed a bankruptcy court’s dismissal of a single asset real estate case on Jan. 19, 2012, reasoning that the debtor’s proposed substitute collateral “was not the indubitable equivalent of the [undersecured lender’s] mortgage.”In re River East Plaza, LLC, 2012 WL 169760, *2 (7th Cir. Jan. 19, 2012) (Posner, J.). In the court’s words, the debtor “wanted [the lender] out of there and decided to seek confirmation of a [reorganization] plan . . .

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Collateral (finance), Default (finance), United States bankruptcy court, Seventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Zais Investment Grade Limited VII — CDO noteholders take advantage of Chapter 11
    2011-10-03

    The U.S. Bankruptcy Court for the District of New Jersey recently held that a Cayman Islands collateralized-debt obligation issuer (“CDO”) could be a debtor under Chapter 11 of the U.S. Bankruptcy Code (the “Bankruptcy Code”) and declined to dismiss an involuntary case commenced against the CDO by certain noteholders on the grounds that the notes held by such noteholders were “non-recourse” notes. Below is a discussion of the court’s decision and its potential implications. The decision is currently being appealed.

    Filed under:
    Cayman Islands, USA, New Jersey, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Collateral (finance), Debt, Asset-backed security, Liquidation, Default (finance), Collateralized debt obligation, Mortgage-backed security, Pro rata, Title 11 of the US Code, United States bankruptcy court, US District Court for District of New Jersey
    Authors:
    Lawrence V. Gelber , Daniel V. Oshinsky , Craig Stein
    Location:
    Cayman Islands, USA
    Firm:
    Schulte Roth & Zabel LLP
    Seventh Circuit denies fees to breaching DIP lender in re Arlington Hospitality, Inc.
    2011-04-13

    The Seventh Circuit affirmed a district court’s ruling that a debtor-in-possession (“DIP”) lender had breached its financing agreement, barring its claim for commitment and funding fees from the DIP. Arlington LF, LLC v. Arlington Hospitality, Inc., No. 09-3560, 2011 WL 727981, *9 (7th Cir. March 3, 2011), aff’g No. 08 C 5098, 2011 WL 3055350 (N.D. Ill. Sept. 18, 2009). Although the DIP itself had also breached the agreement, that breach was not, in the court’s view, effective until after the lender had already “walked away.” Id. at *6.

    Filed under:
    USA, Insolvency & Restructuring, Leisure & Tourism, Litigation, Schulte Roth & Zabel LLP, Condition precedent, Debtor, Interim order, Breach of contract, Interest, Investment banking, Default (finance), Line of credit, Subsidiary, United States bankruptcy court, Seventh Circuit
    Authors:
    Michael L. Cook , Karen S. Park
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy claims trading: Seventh Circuit clarifies that acquired rights may include a “cure” claim but recovery is still not guaranteed
    2011-03-01

    On Feb. 18, 2011, the Seventh Circuit Court of Appeals (the “Circuit Court”) held that (i) an assignment of unsecured contract claims from AT&T to ReGen Capital I, Inc. (“ReGen”) was broad enough to include right to receive “cure” payments in the event the debtor, UAL Corporation (“United”), assumed the underlying executory contracts, but (ii) ReGen could not successfully assert a “cure” claim because United had not assumed the executory contracts, even though United’s confirmed plan of reorganization included them on a list of assumed contracts. ReGen Capital I, Inc. v. UAL Corp.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Federal Reporter, Marketing, Default (finance), United States bankruptcy court, Seventh Circuit, Circuit court
    Authors:
    David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Lehman Brothers bankruptcy court strikes waterfall subordination provisions conditioned on bankruptcy
    2010-01-28

    On Jan. 25, 2010, the U.S. Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) held that a trust deed provision reversing a priority of payment waterfall upon the bankruptcy of a credit support provider under a swap agreement is unenforceable under the U.S. Bankruptcy Code (the “Bankruptcy Code”).

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Bankruptcy, Collateral (finance), Interest, Swap (finance), Public limited company, Default (finance), Collateralized debt obligation, Deed of trust (real estate), Bankruptcy of Lehman Brothers, Title 11 of the US Code, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit allows post-bankruptcy legal fees based on pre-bankruptcy indemnity agreement
    2009-11-13

    The United States Court of Appeals for the Second Circuit held on Nov. 5, 2009, that a creditor was entitled to its post-bankruptcy legal fees incurred on a pre-bankruptcy indemnity agreement. Ogle v. Fid. & Deposit Co. of Md., __F.3d __, No. 09-0691-bk, 2009 U.S. App. LEXIS 24329 (2d Cir. Nov. 5, 2009). Affirming the lower courts, the Second Circuit explained that the Bankruptcy Code (“Code”) “interposes no bar . . . to recovery.” Id. at *8-9 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Federal Reporter, Default (finance), Substantive law, Attorney's fee, Unsecured creditor, Eighth Circuit, Second Circuit, Ninth Circuit
    Authors:
    Michael L. Cook , Lawrence V. Gelber , Adam C. Harris , David M. Hillman , Brian D. Pfeiffer
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Champerty clarified: a victory for activist distressed debt and claims investors
    2009-11-03

    In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Security (finance), Fraud, Accounts receivable, Interest, Mortgage loan, Foreclosure, Default (finance), Distressed securities, Mortgage-backed security, Commercial mortgage, Merrill Lynch, UBS, Second Circuit
    Authors:
    Lawrence V. Gelber , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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