Farmers attempting to reorganize under Chapter 12 of the Bankruptcy Code may propose selling land as a means of generating cash to pay creditors. This sale creates a large capital gains tax, as the cost basis for the land is likely low. That capital gains tax has priority over general unsecured creditors, and the farmer needs to pay that capital gains tax in full to get a Chapter 12 plan confirmed.
Last April, we updated you that the Supreme Court had granted review of In re The Village at Lakeridge, LLC, 814 F.3d 993 (9th Cir. 2016). Our most recent post is here.
Our February 22 post reported that the Franchise Services of North America, Inc. decision of Bankruptcy Judge Edward Ellington of the Southern District of Mississippi dismissing a Chapter 11 petition because a holder of “golden share” stock had not approved the petition as required by the debtor’s charter was going directly to the U.S. Court of Appeals for the Fifth Circuit on an expedited basis. It is the first case concerning the merits of contractual or structural bankruptcy-remoteness in my memory to reach a Court of Appeals since the adoption of the Bankruptcy Code in 1978.
Fraudulent conveyance litigation arising from failed leveraged buyout transactions is frequently pursued in bankruptcy proceedings as the sole source of recovery for creditors. Targets of these actions typically include those parties who received the proceeds generated by the LBO, including the debtor’s former shareholders.
Safe Harbor Protection Generally
In general, a trustee or debtor-in-possession in a bankruptcy has the power to avoid certain prepetition transfers made by a Debtor. The most common of these are fraudulent transfers and preference payments. But this avoiding power is not unlimited. It is subject to a number of codified exceptions and defenses. And one such exception that has been used to shield an increasing number of transactions is the securities “safe harbor” provision found in section 546(e) of the Bankruptcy Code.
Zohar III, Corp., along with five of its subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10512).
On March 7, the U.S. Court of Appeals for the 2nd Circuit denied a bank’s motion to compel arbitration, holding that arbitration of the debtor’s claims would present an inherent conflict with the intent of the Bankruptcy Code because the dispute concerns a core bankruptcy proceeding.
The Court of Appeals for the Ninth Circuit revived a chapter 13 debtor’s bankruptcy case holding that the bankruptcy court below made no specific finding that the debtor violated the Controlled Substance Act (“CSA”) to support dismissal of the case.
Law360
Even if you haven’t purchased any bitcoin, you have likely heard about the cryptocurrency that was approaching $20,000 per coin late last year. The record high was quickly followed by a dramatic fall in value over 16 days in early 2018 — crashing to below $7,000. Since that time, bitcoin has been staging its recovery, and as of this writing, sits at slightly over $9,000 per coin. Not a bad place to be, considering bitcoin’s humble valuation of $.08 per coin back in 2010. It seems that despite its roller coaster persona, bitcoin is here to stay.
Commercial landlords in New York often find that their efforts to evict defaulted tenants are frustrated when, after serving the defaulting tenant a notice to cure, the tenant obtains a “Yellowstone” temporary restraining order (TRO) pursuant to First National Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630 (1968). As discussed below, a recent New York decision may allow a landlord to avoid a Yellowstone injunction by including lease language waiving the tenant’s rights to declaratory and injunctive relief.