The failure of debtors to accurately list and value assets in their bankruptcy schedules is certainly not a new phenomenon. Recently, however, we are witnessing an increase in bankruptcy cases where debtors are using clever and deliberate means to omit assets or disguise the true value of their assets in an attempt to thwart recovery by creditors. While the U.S. trustee's or a creditor's remedy for such bad acts is to seek a denial of the debtor's discharge under 11 U.S.C.

The "American rule" is a well-defined legal principle applied by courts throughout the United States that holds each party to a dispute responsible for paying its own attorney fees. This principle is, however, subject to a number of exceptions that effectively allow a prevailing party to recover its own attorney fees from a losing party. For example, federal and state statutes increasingly authorize a prevailing party to recover costs from its adversary in certain types of actions.

The United States Bankruptcy Appellate Panel of the 6^th Circuit affirmed the Bankruptcy Court dismissal of five single – asset real estate Debtors’ Jointly Administered Chapter 11 cases under the “For Cause” dismissal provisions of the United States Bankruptcy Code, 11 U.S.C.A. § 1112 (b). see In re Creekside Senior Apartments, LP, et al., 2013 WL 1188061 (6^th Cir. BAP Ky.)

With a growing number of projects facing financial difficulty, the importance of maintaining leverage for securing payment is greater than ever. The project itself remains a prime security target for any contractor, subcontractor or supplier for assuring appropriate attention is given to their claims and that payment will be forthcoming in a timely and unencumbered manner. Some very recent developments in the lien realm emphasize the ongoing attention that is being given to lien statutes and the opportunity they provide for maximizing those considerations of security and leverage.

The Bankruptcy Protector

This term, Supreme Court Justice Elena Kagan has authored a pair of opinions related to arbitration. The first of these decisions, Badgerow v. Walters, 20-1143, 142 S. Ct. 1310 (2022) came down on March 31, 2022, where Justice Kagan, writing for the 8/1 majority, held that a court must have an independent basis of federal jurisdiction to undertake a petition to confirm or vacate an arbitration award.

The filing of a bankruptcy petition under any chapter of the Bankruptcy Code creates the ‘automatic stay,’ which prevents creditors from taking any further action against either the debtor or the debtor’s assets during the bankruptcy. Seasoned bankruptcy attorneys know that a violation of the automatic stay is a serious matter and, because of this, appropriately advise their clients on complying with, or enforcing, the stay. However, stay violations can inadvertently occur even when all reasonable and necessary precautions are taken.

The Bankruptcy Protector

In the ever-churning waters of the Countryman test for determining whether a contract is executory, the United States District Court for the Middle District of Louisiana recently dipped its toe. The question before the court was whether surety bonds issued to an oil and gas company were executory. The district court, upholding the bankruptcy court below, held that they were not. An analysis of this opinion sheds light on why the surety bonds are not executory and provides lessons for both creditors and debtors, alike.

The United States Court of Appeals for the Fifth Circuit has dealt a blow to debtors seeking Paycheck Protection Program (“PPP”) loans under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). In a decision entered on Monday, June 22, Judge Jerry Smith issued a short, three-page opinion in the case Hidalgo County Emergency Service Foundation v. Jovita Carranza (In re Hidalgo County Emergency Service Foundation) that could have long-lasting ramifications for many debtors, both in and outside of the Fifth Circuit.

There is currently a split in authority on the issue of whether a trustee may recover from an immediate or mediate transferee if the recipient received proceeds from a fraudulent transfer but not the fraudulently transferred property itself.

For a vast number of professionals, email has become the preferred method for communicating and conducting business. However, many of those people who would choose to fire off a quick email over picking up a phone may not be aware that a casual email can transform into a binding, enforceable contract. Such was the case for the parties in Shinhan Bank v. Lehman Brothers Holdings Inc. (In re Lehman Brothers Holdings Inc.), Case No. 17-2700, 2018 WL 3469004 (2d Cir.