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    Pre-disposition notice required to preserve deficiency claim
    2007-11-14

    A decision by the Illinois Court of Appeals reinforces the importance of providing pre-disposition notice to preserve a deficiency claim against an obligor. General Motors Acceptance Corp. v. Stoval, No. 1-06-1858, ____ N.W. 2d ____ (Ill. Ct. App. June 29, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Collateral (finance), Foreclosure, Default (finance), Secured creditor, Uniform Commercial Code (USA), Illinois Appellate Court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Significant changes to Colorado’s foreclosure laws effective January 1, 2008
    2007-12-20

    In 2006, the Colorado Legislature passed HB 06-1387, which produced significant changes to Colorado’s foreclosure laws. Although the majority of the changes were to take effect July 1, 2007, the 2007 Legislature passed HB 07-1157, which made additional changes and pushed back the effective date for many of the 2006 modifications to January 1, 2008. This alert summarizes the most significant changes that will affect both lenders and borrowers and provides a revised timeline for the foreclosure process after January 1, 2008.

    SUMMARY OF CHANGES 

    Filed under:
    USA, Insolvency & Restructuring, Bryan Cave Leighton Paisner (Bryan Cave), Foreclosure, Default (finance)
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Legislative initiatives to stem subprime fallout: proposed amendments to chapter 13 of the Bankruptcy Code
    2008-01-31

    Late last year, government responses to the subprime mortgage crisis proliferated but most attention focused on those measures that could be, and in some cases were, rapidly implemented — measures like the Treasury Department’s urging holders of certain subprime adjustable rate mortgages (ARMs) to freeze interest rates temporarily or the Federal Reserve’s proposed tightening of lending requirements.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Subprime lending, Debt, Mortgage loan, Foreclosure, Maturity (finance), Default (finance), Mortgage-backed security, Annual percentage rate, US Congress, US Department of the Treasury, Federal Reserve (USA), US House Committee on the Judiciary
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Third Circuit settles right to cure split in New Jersey
    2008-01-31

    For more than 10 years, the courts in New Jersey were split as to whether, under the Bankruptcy Code, a chapter 13 debtor’s right to cure a default on a mortgage loan secured by the debtor’s primary residence expired at the foreclosure sale, or at the time the deed to the foreclosed property was delivered to the purchaser. That split now has been resolved by the U.S. Court of Appeals for the Third Circuit in favor of the line of cases cutting off the right to cure at the time of the foreclosure sale. In re Connors, No. 06-3321 (3d Cir., Aug. 3, 2007).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Waiver, Amicus curiae, Mortgage loan, Foreclosure, Deed, Default (finance), Deutsche Bank, US Code, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Reed Smith LLP
    Breach of fiduciary duty by insiders of Chapter 11 debtors
    2008-03-12

    The U.S. Court of Appeals for the Eighth Circuit recently held that insiders who control the operations of a debtor owe a duty, as fiduciaries, to refrain from self-dealing. In re Brook Valley VII, Joint Venture (Lange v. Schropp), 496 F.3d 892 (8th Cir. 2007). The controlling insiders of two Chapter 11 debtors had thus breached their fiduciary duties to the debtors when they caused the debtors to consent to a foreclosure sale of estate properties and then secretly purchased the properties for themselves at the sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Conflict of interest, Bankruptcy, Debtor, Breach of contract, Fiduciary, Foreclosure, Duty of care, Constructive trust, Eighth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit interprets Congressional amendments to the definition of a “SARE” narrowly
    2008-04-25

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Consumer protection, Interest, Limited liability company, Foreclosure, Secured loan, US Congress, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    American Home court expands scope of repo safe harbor
    2008-05-29

    In a May 23, 2008 decision, the United States Bankruptcy Court for the District of Delaware ruled that BBB-rated mortgage-backed notes are eligible for the Bankruptcy Code's repurchase agreement safe harbor as “interests in mortgage loans”. The court also held that a repurchase agreement constituted a sale, as opposed to a financing governed by UCC Article 9 -- the first decision on this topic since the financial contract safe harbors were expanded under the 2005 amendments to the Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Security (finance), Breach of contract, Safe harbor (law), Market liquidity, Margin (finance), Mortgage loan, Foreclosure, Broker-dealer, Mortgage-backed security, Commercial paper, Lehman Brothers, Title 11 of the US Code, Uniform Commercial Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Ohio's Tenth Appellate District addresses priority between mechanics’ liens and mortgages; prejudgment interest on mechanics’ liens
    2008-05-29

    On May 20, 2008 the Tenth Appellate District Court of Appeals issued an opinion in Guernsey Bank v. Milano Sports Enterprises, LLC holding on several issues of priority between mortgages and mechanics’ liens as well as the application of prejudgment interest on mechanics’ liens.

    Filed under:
    USA, Construction, Insolvency & Restructuring, Litigation, Bricker & Eckler LLP, Interest, Limited liability company, Mortgage loan, Foreclosure, Legal burden of proof, Admissible evidence
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    Bankruptcy Court approves pre-petition automatic stay waiver
    2008-05-22

    In re Bryan Road, LLC, 2008 WL 376773 (Bankr. S.D. Fla. 2008), the Bankruptcy Court for the Southern District of Florida concluded on February 12, 2008, that a borrower could and did waive the protections of the Bankruptcy Code’s automatic stay in a pre-bankruptcy workout agreement with its lender and thus lifted the stay to enable the lender to hold a foreclosure sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Debtor, Waiver, Interest, Consideration, Foreclosure, Legal burden of proof, Condominium, Refinancing, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Agreements for future relief from automatic stay—where do things stand?
    2008-06-10

    The question, “Can we get them to agree not to file bankruptcy in the future?” must be near the top of the list of questions clients most commonly ask their transactions and workout lawyers.

    Most lawyers fielding this question are likely to explain that such an agreement is not enforceable under bankruptcy law. Good lawyers then suggest that in certain situations, an agreement for the entry of an order lifting the automatic bankruptcy stay, or an agreement not to oppose a lift-stay motion if the other side files a bankruptcy petition, may be enforceable.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Unsecured debt, Consideration, Foreclosure, Refinancing, Precondition, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP

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