This week’s TGIF considers the decision in Re BBY Limited (Receivers and Managers Appointed) (in liq) [2022] NSWSC 29, where the Court discussed the necessary elements of a Quistclose trust in the context of alleged unfair preferences.
Key Takeaways
The Ninth Circuit Bankruptcy Appellate Panel (BAP) recently held that merely freezing a debtor’s bank account holding funds that had been garnished by a judgment creditor did not violate the automatic stay. This decision was based on the United States Supreme Court’s ruling last year in City of Chicago v. Fulton, holding that retention of repossessed vehicles that were possessed before a bankruptcy was filed did not violate the automatic stay.
“[E]nsnared between his involvement in a business that is legal under the laws of Arizona but illegal under federal law,” one debtor’s chapter 13 petition was recently dismissed due to his undisputed violations of the Controlled Substances Act.
After a lawsuit filed by liquidators of a company that collapsed against the company’s former officers, directors, and independent auditors was dismissed in limine, a new Israeli Supreme Court ruling overturned that decision and allowed the liquidators to move forward with the lawsuit, alleging that lack of oversight was what led to the company’s collapse.
１．はじめに
2021年12月15日、インドネシアの憲法裁判所は、破産および債務の支払義務の停止に関する2004年法律第37号（「倒産法」）235条1項及び293条1項において定められた、支払停止手続に対する法的救済がないことについての司法審査に関する決定（No. 23/PUU-XIX/2021（「本件決定」）を致しました。本ニュースレターでは本件決定の内容についてご説明致します。
２．背景
インドネシアでは、破産手続とは別に、日本でいう民事再生手続に相当する支払停止手続（Penundaan Kewajiban Pembayaran Utang）（「PKPU」）が規定されております。PKPUにおいては、債務者が、返済額の減額や返済スケジュールなどを盛り込んだ再生計画を提出し、裁判所が各債権者の同意を得て再生計画の認可・不認可を決定するとされております。同決定は全債権者を拘束するところ、下記のように、倒産法235条1項及び293条は、当該決定については法的救済が無い旨を規定しております。
Insight
Consider a lender that extends a term loan in the amount of $1 million to an entity debtor. The loan is guaranteed by the debtor’s owner. If both the debtor and the guarantor become subject to bankruptcy cases, it is settled that the lender has a claim of $1 million (ignoring interest and expenses) in each bankruptcy case. However, the lender cannot recover more than $1 million in total in the two cases combined. (Ivanhoe Building & Loan Ass'n of Newark, NJ v. Orr, 295 U.S. 243 (1935).)
The U.S. Supreme Court, in its Fulton v. City of Chicagoopinion, let Chicago off the automatic stay hook for holding onto impounded vehicles owned by Chapter 13 debtors.
But Fulton is not the last word on that subject.
The new opinion is Cordova, et al. v. City of Chicago, Case No. 19-0684 in the Northern Illinois Bankruptcy Court (issued December 6, 2021, Doc. 154).
Background
A Turkish court might declare concordat when a debtor, who has, or is threatened to be defaulted on his debts, agrees with its creditors on the restructuring of most of his debts.1 The concordat project governs how, when and to which extent the debt will be repaid. Upon its declaration, the concordat binds all creditors, even the ones that did not consent to it.
When the court accepts to review the concordat application, the court also provides three-months of provisional stay (geçici mühlet) during which it must take all precautions to protect the debtor’s assets.
The Supreme Court of India has rejected the contention which sought to narrowly define operational debt and operational creditors under the Insolvency and Bankruptcy Code, 2016 to only include those who supply goods or services to a corporate debtor and exclude those who receive goods or services from the corporate debtor.
The Court noted that a demand notice for an operational debt by an operational creditor does not necessarily need to be accompanied by an invoice, but it may be sent where such debt arises under a ‘provision of law, contract or other document’.