The Delaware bankruptcy court in the KB Toys, Inc. cases recently held that a claims purchaser takes a claim subject to certain disabilities of the claim as held by the seller, regardless of whether the claim transfer is deemed a “sale” or an “assignment.” SeeIn re KB Toys, Inc., Case No. 04-10120 (KJC) (Bankr. Del. May 4, 2012). In so ruling, the Delaware court’s decision is somewhat at odds with the decision issued by the District Court for the Southern District of New York in the Enron bankruptcy cases. See Enron Corp. v.

On May 4, 2012 Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware held that a claim against a debtor’s estate, transferred to a third party, is subject to the same infirmities as in the hands of the original holder of the claim.  In re KB Toys, Inc., — B.R. —-, 2012 WL 1570755, at *11 (Bankr. D. Del. 2012).  Judge Carey’s opinion diverged from, and criticized, the decision of the U.S. District Court for the Southern District of New York in Enron Corp. v. Springfield Assocs., L.L.C., 379 B.R. 425 (S.D.N.Y.

Introduction

On May 4, 2012, the Delaware bankruptcy court inIn re KB Toys, Inc., et al. (KB Toys), handed down a thoughtful decision addressing the issue of whether impairments attach to a claim or remain with its seller. The KB Toys court held that “a claim in the hands of a transferee has the same rights and disabilities as the claim had in the hands of the original claimant. Disabilities attach to and travel with the claim.”

The Delaware Bankruptcy Court has approved procedures for a sale of AFA Investment, Inc. and its affiliates’ assets. As approved, the procedures are largely as reported here on April 20, 2012, with some changes:

• AFA has until June 11, 2012 to identify a stalking horse bidder. If one isn’t identified, AFA must file its own proposed form of asset purchase agreement on that date.
• Qualifying bids are due by June 19, 2012 at 4:00 p.m.
• If an auction is held, it will be on June 21, 2012 at 10:00 a.m.

On May 8, 2012, the U.S. Bankruptcy Court for the District of Delaware (the “Court”) entered its Order (the “Order”) Establishing Procedures to Assert Claims Arising under Section 503(b)(9) of the Bankruptcy Code (“503(b)(9) Claims”) in the chapter 11 cases of AFA Investment, Inc. and its affiliated debtors (collectively, the “Debtors”) (Bankr. D. Del. 12-11127 (MFW)).

According to a recent Delaware bankruptcy court decision, avoidance and disallowance risk travel with a distressed claim. This decision highlights the importance of diligence and the benefits provided by purchasing distressed debt on “distressed” documents.

The debt of a troubled company is trading in the secondary market at a significant discount because the company is highly levered and is at risk of default.

Summary

In the case of Wagamon v. Dolan, C.A. No. 5594-VCG (Del. Ch. Apr. 20, 2012), the Court of Chancery reviewed Defendant William Krieg’s motion for summary judgment pursuant to Court of Chancery Rule 56.  This dispute involves the winding up of a joint venture, Internet Working Technologies, Inc. (“INT”) owned by Allan Wagamon and David B.

Introduction