第１ はじめに
一般に、債務者が「債務の承認」を行った場合には、当該債 務の消滅時効は中断することとなります（民法147条3号1 ）が、 債務者が破産し、破産手続が開始されると、破産財団に属す る財産の管理及び処分をする権利は、破産管財人に帰属す ることになります（破産法78条1項）。
債務者本人ではない破産管財人が債務の承認をした場合 にまで、消滅時効の中断効が生じるかという問題については 従来必ずしも明確になっていませんでしたが、本決定では裁 判所がこの点に関する判断を示しており、また、破産手続のみ ならずその他の倒産手続全般でも問題となり得ることから、以 下、紹介いたします。
第２ 事案の概要
A powerful tool afforded to a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") is the power to recover pre-bankruptcy transfers that are avoidable under federal bankruptcy law (or sometimes state law) because they were either made with the intent to defraud creditors or are constructively fraudulent because the debtor-transferor received less than reasonably equivalent value in exchange and was insolvent at the time, or was rendered insolvent as a consequence of the transfer.
Judge Jacqueline P. Cox recently found that three Illinois attorneys violated their ethical obligations by failing to return their client’s phone calls. She thus ordered the attorneys to return half of their already-court-approved, and paid, flat fee.
In In re: Dennis Molnar, 19-bk-09525, 2024 WL 190919 (Jan. 17, 2024 N.D, Ill.), the debtor filed a petition seeking relief under chapter 13. Originally, three attorneys from the same firm represented the debtor. The attorneys appeared pursuant to a “no look,” flat-fee program for chapter 13 debtors’ attorneys.
Case Trends
The latest quarterly figures from The Insolvency Service for Q4 of 2023, covering the period October to December, show that company insolvency volumes in England and Wales reached a 30-year high. 25,158 registered companies entered some form of insolvency in 2023. The food and drink sector has not been immune to this, and indeed has seen some of the biggest rises in insolvency as many businesses face significant financial challenges.
Multiple headwinds
First, the not-so-great news in figures:
The scope of the Bankruptcy Code's "safe harbor" shielding certain securities, commodity, or forward-contract payments from avoidance as fraudulent transfers has long been a magnet for controversy, particularly after the U.S. Supreme Court suggested (but did not hold) in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.
On 23 January 2024, the Court of Appeal handed down its much anticipated judgment[1] on the appeal of the Adler restructuring plan pursuant to Part 26A of the Companies Act 2006 (“RP”), which was sanctioned by the High Court on 12 April 2023
On 23 January 2024, the Court of Appeal overturned the High Court's sanction of Adler Group's (Adler) restructuring plan (the Plan) (see our alert). This much anticipated judgment provides clarity on the court's discretion to sanction a plan where there are dissenting classes of creditors.
Background
The Plan envisaged:
Why is Subsidiary Legislation 386.24 Companies Act (Suspension of Filing for Dissolution and Winding Up) Regulations (the “Regulations”) still in force?
Almost four years down the line, practitioners cannot help but question exactly why the Regulations are still in force now that most (if not all) pandemic measures have been totally lifted.