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    Practice pointer follow up
    2012-09-25

    First and foremost here at the Drug and Device Law Blog, we like good, strong defense decisions.  If those decisions contain lessons (or reminders) for our everyday practice – so much the better.  That’s why we’ve blogged about cases that let us remind you to check publicly available information about plaintiffs, make sure the plaintiff was alive when she filed suit, and search bankruptcy filings to see if plaintiff disclosed her lawsuit.  We

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Dechert LLP, Estoppel, Tyson Foods, Fifth Circuit, Third Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    Third Circuit overrules Frenville accrual test to hold that asbestos-related claims arise when the claimant is exposed
    2010-06-16

    The United States Court of Appeals for the Third Circuit on June 2, 2010, sitting en banc, overruled its own precedential holding in Avellino & Beines v. M. Frenville Co. (Frenville), 744 F.2d 332 (3d Cir. 1984), to hold that in the context of asbestos-related tort claims, a “claim” under the Bankruptcy Code arises when an individual is exposed pre-petition to a product giving rise to an injury rather than when the injury manifests itself. JED-WEN, Inc. v. Van Brunt (In re Grossman’s), No. 1563, slip op. at 18 (3d Cir. June 2, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Product Regulation & Liability, Dechert LLP, Bankruptcy, Conflict of laws, Retail, Debtor, Federal Reporter, US Code, Title 11 of the US Code, MFG.com, United States bankruptcy court, Fifth Circuit, Third Circuit, Fourth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    Fifth Circuit holds foreign representatives may bring foreign law avoidance actions under Chapter 15 of Bankruptcy Code
    2010-04-05

    The United States Court of Appeals for the Fifth Circuit on March 17, 2010 held that foreign representatives appointed in a foreign insolvency proceed-ing have the authority to bring a foreign law based avoidance action in an ancillary bankruptcy proceeding commenced under Chapter 15 of the Bankruptcy Code, reversing the lower court opinions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, Liquidation, Subject-matter jurisdiction, US Code, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, US District Court for SDNY
    Location:
    USA
    Firm:
    Dechert LLP
    5th Cir. Holds Tax Buyers Not Subject to TILA
    2016-06-02

    The U.S. Court of Appeals for the Fifth Circuit recently held that a transfer of a tax lien to a tax buyer under Texas law does not constitute an extension of credit that is subject to the federal Truth in Lending Act (TILA).

    A copy of the opinion is available at:  Link to Opinion.

    Filed under:
    USA, Texas, Banking, Insolvency & Restructuring, Litigation, Real Estate, Tax, Maurice Wutscher LLP, Property tax, Debt, Tax lien, Truth in Lending Act 1968 (USA), Consumer Financial Protection Bureau (USA), Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Rejects Debtor’s Chapter 11 BK Plan as Not Proposed in Good Faith
    2016-02-11

    The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy court clearly erred in its finding that a debtor proposed a Chapter 11 plan in good faith, when the secured mortgagee would be paid only in part and very slowly after 10 years with no obligation by the debtor to maintain the building and obtain insurance, while a second class would be paid in full in two payments of $1,200 each over 60 days.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, United States bankruptcy court, Fifth Circuit, Sixth Circuit
    Authors:
    Thomas R. Dominczyk
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    FYI: 5th Cir Allows Bankruptcy Trustee to Recover Expenses from Secured Creditor
    2016-01-18

    The U.S. Court of Appeals for the Fifth Circuit recently held that section 506(c) of the Bankruptcy Code, 11 U.S.C. § 506(c), permits a trustee to recover from a secured creditor the expenses the trustee incurred while maintaining a property during bankruptcy.

    A copy of the opinion is available at:  Link to Opinion

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Secured creditor, US Code, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fifth Circuit FDCPA and Consumer Bankruptcy Rulings for 2021
    2021-12-30

    In its top consumer credit law decisions of 2021, the U.S. Court of Appeals for the Fifth Circuit determined that settlement of an FDCPA claim does not trigger an attorney fee award, examined third-party contact as a “communication” under the FDCPA, and ruled there was no “partial surrender” of collateral in a Chapter 13 plan.

    Tejero v. Portfolio Recovery Assocs., LLC, 993 F.3d 393 (5th Cir. 2021)

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Fair Debt Collection Practices Act 1977 (USA), Fifth Circuit, U.S. Court of Appeals
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Rejects Borrower’s Bankruptcy Claim Objection as Barred by Res Judicata
    2021-11-29

    The U.S. Court of Appeals for the Fifth Circuit recently rejected a borrower’s objections to a bankruptcy court’s jurisdiction and held that the doctrine of res judicata barred the borrower’s claim objection as it was ultimately based on the alleged impropriety of the creditor’s claim from a prior bankruptcy.

    A copy of the opinion in BVS Construction v. Prosperity Bank is available at: Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, United States bankruptcy court, Fifth Circuit
    Authors:
    Jenna Tersteegen
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Reverses Denial of Motion to Compel Arbitration in TILA Case
    2020-01-16

    The U.S. Court of Appeals for the Fifth Circuit recently reversed the denial of a lender’s motion to compel arbitration in an adversary bankruptcy proceeding for allegedly violating the federal Truth in Lending Act (TILA), holding that — despite conflicting clauses in two different relevant agreements — the parties had entered into a valid arbitration agreement that delegated the threshold issue of arbitrability to the arbitrator.

    Filed under:
    USA, Mississippi, Arbitration & ADR, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Truth in Lending Act 1968 (USA), Fifth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Automatic Stay Violation Claim Against Mortgagee Barred by Judicial Estoppel
    2018-08-06

    The U.S. Court of Appeals for the Fifth Circuit recently held that a mortgagee’s foreclosure action did not violate an automatic stay imposed during one of the plaintiff’s chapter 13 bankruptcy schedules, where the debtor failed to amend his bankruptcy schedules to disclose his recent acquisition of the subject property from his son.

    In so ruling, the Fifth Circuit affirmed the trial court’s judgment in favor of the mortgagee because father and son plaintiffs were judicially estopped from claiming a stay violation.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Mortgage loan, Foreclosure, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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