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    The Rule of Explicitness Inside and Outside of Bankruptcy
    2017-02-28

    A recent case in the Southern District of New York, U.S. Bank, NA v. T.D. Bank, NA, applied the so-called Rule of Explicitness to the allocation of recoveries among creditors outside of a bankruptcy proceeding. In the bankruptcy context, this rule requires a clear and unambiguous intention to turn over post-petition interest to senior creditors at the expense of junior creditors. The court in this case found the requisite documentary clarity to pay post-petition interest ahead of the distribution of principal.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Eleventh Circuit, First Circuit
    Authors:
    Abbe L. Dienstag
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Trademarks, Trade Names Not Protected by Bankruptcy Law, but Licensee Rights Prevail
    2017-01-31

    Addressing a circuit split over a trademark licensee’s rights following a debtor/licensor’s bankruptcy, the US Bankruptcy Appellate Panel (BAP) for the First Circuit held that, although trademarks and trade names are not included in bankruptcy law’s definition of “intellectual property,” the licensee’s rights to use the licensor’s trademarks as set forth in the agreement were not terminated by the debtor’s rejection of the agreement. Mission Prod. Holdings, Inc. v. Tempnology LLC, Case No. 15-065 (BAP, 1st Cir., 2016) (Hoffman, J).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, McDermott Will & Emery, United States bankruptcy court, Seventh Circuit, Bankruptcy Appellate Panel, First Circuit
    Authors:
    Eleanor B. Atkins
    Location:
    USA
    Firm:
    McDermott Will & Emery
    First Circuit Bankruptcy Appellate Panel Recognizes Rights of Trademark Licensees in Bankruptcy
    2017-01-23

    The First Circuit Bankruptcy Appellate Panel recently issued a decision recognizing the rights of trademark licensees when the trademark’s owner files for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, BakerHostetler, Bankruptcy Appellate Panel, First Circuit
    Authors:
    Eric R. Goodman
    Location:
    USA
    Firm:
    BakerHostetler
    1st Cir. Holds IRS 1099-A Forms Did Not Violate Discharge Injunction
    2017-01-11

    The U.S. Court of Appeals for the First Circuit recently affirmed a bankruptcy court’s ruling that a mortgagee did not violate the discharge injunction in 11 U.S.C. § 524(a) by sending IRS 1099-A forms to borrowers after their discharge, agreeing that the IRS forms were not objectively coercive attempts to collect a debt.

    A copy of the opinion in Bates v. CitiMortgage, Inc. is available at: Link to Opinion.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy discharge, Internal Revenue Service (USA), First Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Rejecting Trademark Licenses in Bankruptcy: In re Tempnology
    2017-01-10

    The decision provides some additional, though limited protection for licensees of trademarks in bankruptcy proceedings

    Introduction

    In In re Tempnology LLC,1 the Bankruptcy Appellate Panel (the BAP) for the First Circuit provided additional clarity regarding the rights of intellectual property licensees under section 365(n) of the United States Bankruptcy Code,2 particularly with respect to trademark licenses. In Tempnology, the First Circuit BAP concluded that:

    Section 365(n) extends only to licenses of "intellectual property" as defined in the Bankruptcy Code,3

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Latham & Watkins LLP, Bankruptcy Appellate Panel, First Circuit
    Location:
    USA
    Firm:
    Latham & Watkins LLP
    1st Cir. Rejects Bankruptcy Trustee’s Effort to Avoid Mortgage Due to Allegedly Defective Acknowledgment
    2016-12-20

    The U.S. Court of Appeals for the First Circuit recently rejected a bankruptcy trustee’s effort to avoid a mortgage on the basis that the acknowledgment signed by the borrowers’ attorney-in-fact was defective under Massachusetts law, holding that the acknowledgment was not materially defective because as a matter of agency law the attorney-in-fact’s signature was the borrowers’ “free act and deed.”

    Filed under:
    USA, Massachusetts, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    First Circuit Bankruptcy Appellate Panel Latest to Warm Up to Protections for Trademark Licensees in Bankruptcy
    2016-12-12

    In its recent decision in Tempnology LLC, n/k/a Old Cold, LLC v. Mission Product Holdings, Inc. (In re Tempnology LLC), No. 15-065 (B.A.P. 1st Cir. Nov. 18, 2016), the U.S. Bankruptcy Appellate Panel for the First Circuit (“the BAP”) rejected the Fourth Circuit’s holding in Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043 (4th Cir.

    Filed under:
    USA, New Hampshire, Insolvency & Restructuring, Litigation, Trademarks, Duane Morris LLP, Fourth Circuit, First Circuit
    Authors:
    Paul D. Moore , Keri L. Wintle
    Location:
    USA
    Firm:
    Duane Morris LLP
    The Trend Reverses: College Tuition Payments Shielded from Avoidance in Bankruptcy
    2016-08-31

    Bankruptcy Court Rules in Favor of University in Trustee's Suit to Recover Tuition Payments, Then Certifies Trustee's Appeal to First Circuit

    HIGHLIGHTS:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Public, Holland & Knight LLP, Bankruptcy, First Circuit
    Authors:
    Lynne B. Xerras
    Location:
    USA
    Firm:
    Holland & Knight LLP
    Buyer Beware: a Sale “Free and Clear” is not Free and Clear of Claims Whose Holders Were not Provided Notice of the Sale Hearing
    2016-08-16

    The Second Circuit’s recent opinion in The Matter of: Motors Liquidation Company, 2016 WL 3766237 (2nd Cir. 2016) should give pause to all buyers of assets from bankruptcy estates.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Bankruptcy, Debtor, Federal Reporter, Due process, Remand (court procedure), Prejudice, Fifth Amendment, General Motors, Due Process Clause, Eighth Circuit, Second Circuit, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Holland & Hart LLP
    From the Top in Brief - July/August 2016
    2016-08-08

    The U.S. Supreme Court has handed down two rulings thus far in 2016 (October 2015 Term) involving issues of bankruptcy law. In the first, Husky Int’l Elecs., Inc. v. Ritz, 194 L. Ed. 2d 655, 2016 BL 154812 (2016), the Court addressed the scope of section 523(a)(2)(A) of the Bankruptcy Code, which bars the discharge of any debt of an individual debtor for money, property, services, or credit to the extent obtained by "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition."

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Bankruptcy, Debtor, Fraud, Federal Reporter, Debt, Debt relief, Constitutionality, Dissenting opinion, Bankruptcy discharge, Title 11 of the US Code, Supreme Court of the United States, Fifth Circuit, Third Circuit, Seventh Circuit, First Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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