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Sixth Circuit issues significant bankruptcy decision
2014-01-27

In December, the Sixth Circuit, in Grant, Konvalinka & Harrison, P.C. v. Still (In re McKenzie), 737 F.3d 1034 (6th Cir. 2013), addressed two matters of first impression when it adopted the majority rules that (i) a creditor who seeks relief from the bankruptcy automatic stay has the burden to prove the validity of its perfected security interest in collateral; and (ii) the expiration of the two-year statute of limitations on bankruptcy avoidance actions does not prevent the trustee from asserting them defensively under section 502(d) of the Bankruptcy Code.

Filed under:
USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Statute of limitations, Federal Reporter, United States bankruptcy court, Sixth Circuit
Authors:
Colter Paulson
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
River Road court certifies direct appeal to the Seventh Circuit Court of Appeals on credit bid issue
2011-04-06

On November 4, 2010, the United States Bankruptcy Court for the Northern District of Illinois certified the appeal of debtors River Road Hotel Partners, LLC, et al. of the court’s Order Denying Debtors’ Bid Procedures Motion (the Order) entered October 5, 2010. In its Order, the bankruptcy court expressly denied the debtors’ attempts to prevent their secured creditors from credit bidding in a proposed sale of assets under a chapter 11 plan.

Filed under:
USA, Illinois, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Credit (finance), Debtor, Interest, Federal Reporter, Amicus curiae, Dissenting opinion, Secured creditor, Majority opinion, Secured loan, United States bankruptcy court, Fifth Circuit, Third Circuit, US District Court for Northern District of Illinois
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
A statutory basis for substantive consolidation? In re Cyberco Holdings, Inc., 431 B.R. 404 (Bankr. W.D. Mich. 2010)
2011-04-06

A popular line of thinking among bankruptcy practitioners and commentators holds that substantive consolidation – the combining of assets and liabilities of a debtor and another debtor or non-debtor entity to satisfy creditor claims against both entities ratably from the resulting pool – is an equitable remedy of judicial invention with no specific foundation in the Bankruptcy Code.

Filed under:
USA, Michigan, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Fraud, Federal Reporter, Liability (financial accounting), Title 11 of the US Code, Second Circuit, United States bankruptcy court, Third Circuit
Authors:
Andrew M. Simon
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Second Circuit designation ruling serves wake-up call to strategic bankruptcy investors
2010-12-15

Introduction

Filed under:
USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Interest, Federal Reporter, Debt, Maturity (finance), Good faith, Bad faith, Line of credit, Secured loan, Title 11 of the US Code, Dish Network, Second Circuit, United States bankruptcy court, Third Circuit, US District Court for SDNY
Authors:
Peter A. Zisser , Sandra E. Mayerson
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Knowledge is power -- or at least triggers the ERISA statute of limitations
2010-10-01

The Sixth Circuit continues to liberally define the "actual knowledge" required to trigger the 3-year ERISA statute of limitations and, in doing so, affirmed summary judgment in favor of the defendants in Brown v Owens Corning Investment Review (Case No. 09-3692).

Filed under:
USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Breach of contract, Fiduciary, Statute of limitations, Federal Reporter, Eighth Circuit, Sixth Circuit
Authors:
Emily E. Root
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Third Circuit restricts lenders’ right to credit bid on collateral sold through a plan of reorganization
2010-04-28

The Third Circuit Court of Appeals dealt a blow to secured creditors in its recent decision holding that a debtor may prohibit a lender from credit bidding on its collateral in connection with a sale of assets under a plan of reorganization. In the case of In re Philadelphia Newspapers, LLC, No. 09-4266 (3d Cir. Mar. 22, 2010), the court, in a 2-1 decision, determined that a plan that provides secured lenders with the “indubitable equivalent” of their secured interest in an asset is not required to permit credit bidding when that asset is sold.

Filed under:
USA, Banking, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Credit (finance), Debtor, Collateral (finance), Interest, Federal Reporter, Limited liability company, Debt, Personal property, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Third Circuit, US District Court for Eastern District of Pennsylvania
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Second Circuit joins Ninth in permitting general unsecured creditors to include attorneys’ fees as part of their claim
2010-04-28

In Ogle v. Fidelity & Deposit Co. of Maryland, 586 F.3d 143 (2d Cir. 2009), the Second Circuit has now become the second circuit court of appeals to recently conclude that general unsecured creditors may include postpetition attorneys’ fees as part of their claim when attorneys’ fees are permitted by contract or applicable state law.11

Filed under:
USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bond (finance), Debtor, Unsecured debt, Federal Reporter, Concession (contract), Default (finance), Attorney's fee, Unsecured creditor, Second Circuit, United States bankruptcy court, Trustee
Authors:
Bradley A. Cosman
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Second Circuit joins chorus on inapplicability of Bankruptcy Code Section 502(d) to administrative claims
2009-12-17

The Second Circuit Court of Appeals recently issued its decision on a question of first impression before the court: whether section 502(d) of the Bankruptcy Code applies to administrative claims arising under section 503(b) of the Bankruptcy Code. See, generally, ASM Capital, L.P. v. Ames Dept. Stores, Inc. (In re Ames Dept. Stores, Inc.), 582 F.3d 422 (2d Cir. 2009).

Filed under:
USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Federal Reporter, Default judgment, Liquidation, Conveyancing, Title 11 of the US Code, Second Circuit, Ninth Circuit, United States bankruptcy court, Fifth Circuit, Trustee
Authors:
Nicholas J. Brannick
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Delaware bankruptcy court’s Pillowtex decision favors preference defendant relying on subsequent new value defense
2009-10-20

The October 15, 2009 decision of the US Bankruptcy Court for the District of Delaware in In re Pillowtex opens the door for creditors in the Third Circuit to increase their "new value" preference defense under the "subsequent advance" approach.In re Pillowtex, No. 03-12339 (Bankr. D. Del. filed Oct. 15, 2009).

A trustee’s power to avoid preference payments is circumscribed by the statutory defenses set forth in section 547(c) of the Bankruptcy Code. The "subsequent new value" defense set forth in section 547(c)(4) has three well-established elements:

Filed under:
USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Federal Reporter, Westlaw, Third Circuit, US District Court for District of Delaware
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
The triangular setoff after SemCrude
2009-08-26

An opinion issued earlier this year by the Delaware Bankruptcy Court in In re SemCrude, L.P., et al. (Bankr. Del., No. 08-11525; January 9, 2009) may end much of the practice of so-called “triangular setoffs” by creditors in bankruptcy cases. The Court in SemCrude found that creditors violate section 553 of the Bankruptcy Code by setting off amounts among multiple debtors, even when exercising contractual assignment rights. This ruling is likely to have far-reaching impact given the dearth of case law on this fairly common contractual provision.

Filed under:
USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Unsecured debt, Security (finance), Safe harbor (law), Federal Reporter, Debt, Liability (financial accounting), US Code, Title 11 of the US Code, DuPont, Chevron Corporation, Second Circuit, Delaware Supreme Court, United States bankruptcy court
Authors:
Andrew M. Simon
Location:
USA
Firm:
Squire Patton Boggs
View Original Article

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