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    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
    DIP lender's knowledge of adverse claim to collateral scuttles mootness bar to appeal of financing order based on "good faith"
    2014-12-01

    The Bankruptcy Code provides certain protections to buyers of bankruptcy estate assets and to entities that extend credit or financing to a trustee or chapter 11 debtor-in-possession ("DIP"). However, these safe harbors are available only if a buyer or lender is deemed to have acted in "good faith," a concept that is not defined in the Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Jones Day, Collateral (finance), Good faith, Fifth Circuit
    Authors:
    Thomas A. Howley , Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Seventh Circuit upholds narrow application of equitable subordination doctrine
    2009-01-15

    A recent decision of the Court of Appeals for the Seventh Circuit appears to have further raised the hurdle to equitably subordinate claims. Continuing what appears to be a move toward a narrower interpretation of equitable subordination, the Seventh Circuit held that misconduct alone does not provide sufficient justification to equitably subordinate a claim; injury to the interests of other creditors is required as well.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Punitive damages, Bankruptcy, Shareholder, Debtor, Unsecured debt, Mortgage loan, Foreclosure, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Careless plan drafting causes harm in two recent court cases
    2008-09-03

    Two recent Federal appeals court decisions — one issued by the Fifth, the other by the Second Circuit — illustrate the dangers of careless drafting of bankruptcy and reorganization plans. In the Fifth Circuit decision, a drafting error prevented a company reorganized under Chapter 11 from suing the administrators of its property during its bankruptcy for fraud, breach of fiduciary duty and negligence, thereby potentially depriving its creditors of bankruptcy assets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Breach of contract, Fraud, Class action, Fiduciary, Negligence, Leverage (finance), Securities fraud, Second Circuit, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Drafting error deprives creditors of benefit of bankruptcy estate assets
    2008-09-03

    The Fifth Circuit recently issued an opinion addressing an important issue with respect to the preservation of a debtor's causes of action in a Chapter 11 plan of reorganization. The Fifth Circuit held that a reorganized debtor lacked standing to pursue certain common-law claims that were based on the pre-confirmation management of the bankruptcy estate's assets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Fraud, Fiduciary, Limited liability company, Res judicata and issue estoppel, Standing (law), Negligence, Liquidation, Common law, Collateral estoppel, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Fifth Circuit emphasizes harm to other creditors as requirement for equitable subordination
    2008-07-14

    In a recent case,1 the Fifth Circuit emphasized its rule that a creditor's claim may be equitably subordinated to the claims of other creditors only to the extent necessary to offset the harm that the other creditors have suffered, based on specific findings and conclusions.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Shareholder, Debtor, Unsecured debt, Collateral (finance), Debt, Intangible asset, Default (finance), Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Close Enough: Fifth Circuit Holds That Section 510(B) of the Bankruptcy Code Requires Subordination of Payments That “Look a Lot like” Dividends
    2019-10-10

    In 1930, Clarence Bennett’s wealthy uncle died. He left behind shares in Berry Holding Company ("BHC") that were subdivided into three groups. Bennett was the beneficiary of dividends paid out of one of these groups and, for many years, received his share of dividends from BHC. In 1986, BHC became Berry Petroleum Company ("BPC"), a publicly traded company, and Bennett’s interest changed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP

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