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    Recognizing bankruptcy fraud and using experts to deal with it
    2012-08-16

    In a perfect world, a debtor's bankruptcy would involve timely reporting, good faith filings, and full disclosures.  Unfortunately, some debtors either enter the process under a cloud of suspicion or make decisions during the process that suggest the estate has been compromised by fraudulent activity.  Whether the alleged fraud is a complex bust-out scheme or a simple unreported asset transfer, the debtor may face a serious investigation.  Depending on the extent of the allegations, the investigation could be referred as a criminal matter to federal prosecutors.  As the

    Filed under:
    USA, Insolvency & Restructuring, White Collar Crime, Frost Brown Todd LLP, Bankruptcy, Debtor, Fraud
    Authors:
    Griffin S. Dunham
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Claims for restitutionary relief held uninsurable
    2012-07-30

    The United States District Court for the Central District of California has held that, under California law, claims for restitutionary relief are uninsurable as a matter of law. Dobson v. Twin City Fire Ins. Co., et al., 2012 WL 2708392 (C.D. Cal. July 5, 2012). Additionally, the court held that individual insureds breached a policy’s no-voluntary payment provision by settling an underlying claim without insurer consent and that the insureds’ breach was not excused by the carrier’s failure to advance defense costs.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Breach of contract, Fraud, Fiduciary, US District Court for Central District of California
    Location:
    USA
    Firm:
    Wiley Rein LLP
    In re TOUSA, Inc.—Eleventh Circuit reinstates widely criticized fraudulent transfer decision
    2012-05-18

    On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued an opinion in the TOUSA, Inc.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, King & Spalding LLP, Fraud, Debt, Refinancing, United States bankruptcy court, Eleventh Circuit
    Authors:
    Sarah Borders , W Austin Jowers , Mark Maloney , Michael Rupe , Jeffrey Dutson
    Location:
    USA
    Firm:
    King & Spalding LLP
    Commercial financial services brief: subsidiary liens securing debt of corporate parent avoided as fraudulent transfers
    2012-05-21

    On May 15, 2012, the Court of Appeals for the Eleventh Circuit affirmed two key rulings made by a Florida Bankruptcy Court in the long-running bankruptcy case of TOUSA, Inc., once one of the largest homebuilders in the country. The Bankruptcy Court had avoided—as fraudulent transfers—the liens granted by TOUSA’s subsidiaries (the Subsidiaries) to new lenders (the New Lenders) that provided $500 million in financing for TOUSA to payoff debt that was owed by TOUSA, but not the Subsidiaries, to then existing lenders (the Old Lenders).

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Lathrop GPM, Fraud, Debt, Subsidiary, United States bankruptcy court, Eleventh Circuit
    Authors:
    Phillip W. Bohl , Adam M. Nathe
    Location:
    USA
    Firm:
    Lathrop GPM
    Acquiring distressed natural gas assets outside of bankruptcy: good deals today may be fraudulent transfers tomorrow
    2012-05-16

    Technological innovation has changed the landscape of domestic natural gas production from shortage to surplus. The result: a glut of natural gas and historically low prices. While many producers have successfully hedged against this risk to date, as older hedges roll off, many companies are unable to obtain replacement hedges at attractive prices. Some have even resorted to monetizing their in-the-money hedges to raise capital today (and borrowing against the future).

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Haynes and Boone LLP, Bankruptcy, Fraud, Natural gas
    Authors:
    Bernard F. Clark, Jr. , Stephen Pezanosky , Karl D. Burrer , Kenric Kattner , Charles A. Beckham, Jr.
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    TOUSA III: lenders beware? Eleventh Circuit upholds bankruptcy court's original fraudulent transfer decision
    2012-05-17

    On May 15, 2012, the Eleventh Circuit Court of Appeals (the “Circuit Court”) issued an opinion in In re TOUSA, Inc.,1 in which it affirmed the original decision of the bankruptcy court and reversed the appellate decision of the district court. After a 13-day trial, the bankruptcy court had found that liens granted by certain TOUSA subsidiaries (the “Conveying Subsidiaries”) to secure new loans (the “New Term Loans”) incurred to pay off preexisting indebtedness to certain lenders (the “Transeastern Lenders”) were avoidable fraudulent transfers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Fraud, United States bankruptcy court, Eleventh Circuit
    Authors:
    Brian Trust , Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    Eleventh Circuit issues new TOUSA decision, upholds finding that upstream guarantees were fraudulent transfers
    2012-05-16

    In a decision with significant implications for borrowers and lenders, on May 15, 2012, the Eleventh Circuit Court of Appeals affirmed a bankruptcy court's findings that upstream guarantees and associated liens delivered by a bankrupt debtor's subsidiaries were avoidable as fraudulent transfers.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Davis Wright Tremaine LLP, Bankruptcy, Surety, Fraud, Debt, Subsidiary, United States bankruptcy court, Eleventh Circuit
    Authors:
    Hugh McCullough , Bradley R. Duncan
    Location:
    USA
    Firm:
    Davis Wright Tremaine LLP
    SDNY Bankruptcy Court interprets section 546(e)’s safe harbors in Lehman-JPMorgan dispute
    2012-05-03

    On April 19, 2012, the U.S. Bankruptcy Court for the Southern District of New York granted in part and denied in part JPMorgan Chase, N.A.’s motion to dismiss an adversary complaint filed by Lehman Brothers Holdings Inc. (“LBHI”) and its Official Committee of Unsecured Creditors. The Complaint seeks to recover approximately $8.6 billion in prepetition transfers made by LBHI to JPMorgan in the days leading up to LBHI’s bankruptcy.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Collateral (finance), Fraud, JPMorgan Chase, Lehman Brothers, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Mark C. Ellenberg , Kathryn M. Borgeson
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Preventing a windfall: getting a dismissal when plaintiff fails to disclose the claims in bankruptcy
    2012-04-06

    The bankruptcy code provides protection and relief to individuals facing insurmountable debt, but it carries certain obligations and limitations, notably requiring them to list all of their assets, including any claims or potential claims on the schedule of personal assets.   As bankruptcy courts and creditors rely on the debtor's sworn representations to order a discharge of debt, a plaintiff who failed to disclose those claims in a prior or pending bankruptcy action has no standing to later pursue the non-disclosed claims and receive a windfall recovery free and clear of obligat

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sedgwick LLP, Bankruptcy, Debtor, Fraud, Federal Reporter, Estoppel, United States bankruptcy court, Fifth Circuit
    Authors:
    Karen K. Maston , Stephanie L. Perkins
    Location:
    USA
    Firm:
    Sedgwick LLP
    Dynegy examiner's report identifies potential fraudulent transfer and prompts request for Chapter 11 trustee
    2012-03-30

    On March 9, 2012, Susheel Kirpalani, the court-appointed examiner for Dynegy Holdings, LLC (Dynegy), concluded that the debtor's transfer of certain assets to its parent company, Dynegy, Inc., prior to its bankruptcy filing may be recoverable as a fraudulent transfer. Kirpalani further determined that Dynegy's board of directors breached its fiduciary duty in approving the asset transfer. Dynegy, Inc. vigorously disputes the examiner's findings.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Debtor, Fraud, Fiduciary, Trustee
    Authors:
    Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP

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