Below are summaries of the noteworthy decisions, laws and requirements impacting the commercial lending industry which occurred or took effect in 2018. Please feel free to contact us for additional information or details on any of the items listed below and/or to discuss whether updates to your loan documents may be needed to address the same.

1. New, Improved Rules for High Volatility Real Estate Loans

Reprinted with permission from the September 14, 2017 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

In recent years, constructively fraudulent transfer claims asserted in bankruptcy cases, especially those arising from LBOs and similar shareholder transactions, have hit a major road block.

The U.S. Bankruptcy Court for the District of Delaware recently issued an opinion that addresses, among other issues, the question of whether section 546(e) of the Bankruptcy Code preempts certain fraudulent transfer avoidance actions brought under state law. In re Physiotherapy Holdings Inc., No. 15-51238 (Bankr. D. Del. June 20, 2016).

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim.

Note: Pepper Hamilton LLP serves as co-counsel to the Official Committee of Unsecured Creditors (the Committee) in the ADI case. The views expressed herein are solely those of the authors and not of the Committee.

In re Joan Fabrics Corp., 508 B.R. 881 (Bankr. D. Del. 2014) –

The buyer of assets in a bankruptcy sale sought to enforce its asset purchase agreement against a county that was seeking to collect personal property taxes arising prior to the sale by exercising a statutory lien on the property acquired by the buyer.

Creditors of insolvent Delaware corporations have recourse against corporate directors and officers whose disloyal or self-dealing conduct reduces the corporation’s assets available for distribution. Delaware courts have held that directors and officers of insolvent corporations owe fiduciary duties to creditors as the principal stakeholders in the remaining corporate assets. Where those duties are breached, creditors have standing to bring actions derivatively on behalf of the corporation for damages to the corporation. However, in a recent decision by Vice Chancellor J.

Starion Energy, Inc., along with two subsidiaries and affiliates, has filed a petition for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12608). Starion, headquartered in Middlebury, Connecticut, is a competitive retailer of electricity operating in eleven states.

Peekay Acquisition, LLC, along with sixteen (16) of its affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-11722). Headquartered in Auburn, Washington, Peekay is a leading specialty retailer of a broad selection of lingerie, sexual health and wellness products and accessories.

In a recent opinion dated March 29, 2016, the Delaware Bankruptcy Court on remand from, and following the direction of, the Delaware District Court, ruled that only prepetition unpaid invoices may be counted for purposes of the new value defense under 11 U.S.C. § 547(c)(4). The Bankruptcy Court also ruled that the plaintiff Chapter 7 trustee was entitled to prejudgment interest from the date of the filing of the preference avoidance complaint. Further, the District Court, in affirming the Bankruptcy Court on this point, addressed the ordinary course defense under 11 U.S.C.

Lamington Road Designated Activity Company LLC (Case No. 18-12615) and its subsidiary, White Eagle General Partner, LLC (Case No.