The recent steady drumbeat of Chapter 11 bankruptcy filings is producing an equally persistent corollary: creditors receiving new securities issued by the reorganizing debtor or a related party in full or partial satisfaction of the creditors’ claims. Some of these creditors-cum-investors never planned to receive securities. The paradigmatic example is a creditor that enters into a normal business transaction resulting in an obligation that the debtor company hasn’t yet satisfied when it files for reorganization.

Today, Guaranty Bank, headquartered in Austin, Texas, was closed by theOTS and the FDIC was named as receiver.

The Alabama State Banking Department closed CapitalSouth Bank, headquartered in Birmingham, Alabama, and the FDIC was named as receiver. As receiver, the FDIC entered into a purchase and assumption agreement with IBERIABANK, headquartered in Lafayette, Louisiana, to assume all the deposits of CapitalSouth Bank, except brokered deposits.

The Illinois Department of Financial and Professional Regulation, Division of Banking, closed InBank, headquartered in Oak Forest, Illinois, and the FDIC was named as receiver. The FDIC entered into a purchase and assumption agreement with MB Financial Bank, N.A., headquartered in Chicago, Illinois, to assume all the deposits of InBank except certain brokered deposits.

Today, the FDIC announced that Colony Capital Acquisitions, LLC paid a total of approximately $90.5 million (net of working capital) in cash for a 40% equity stake in a limited liability company (LLC) created by the FDIC to hold a portfolio of approximately 1,200 distressed commercial real estate loans with an aggregate unpaid principal balance of $1.02 billion arising out of 22 failed bank receiverships.

Voluntary liquidations generally

Voluntary liquidations generally

As the conclusion of 2019 approaches, clients should give some thought to whether or not they have Cayman entities which they are no longer using and wish to liquidate prior to the end of 2019 in order to, among other things, avoid annual government registration fees due in January 2020. A voluntary liquidator of a Cayman company or exempted limited partnership (ELP) is required to hold the final general meeting for that company or file the final dissolution notice for that ELP on or before 31 January 2020.

The Privy Council's recent judgment in Weavering^[1]upheld the decisions of the Cayman Islands Grand Court and Court of Appeal that payments made to redeemed investors immediately prior to the fund's liquidation were preference payments under section 145(1) of the Companies Law (2018 Revision) (Law), and must be repaid.

When a fund fails, the disappointed investors’ sole hope of recompense often rests on the fund’s liquidators gathering in and distributing pari passu as many of the fund’s assets as possible. On the other hand, those investors who successfully redeemed shortly before the fund’s collapse might regard the liquidators’ efforts with a degree of concern. 

Where an investor in a fund incorporated in the Cayman Islands gave notice of redemption to the fund, held that it became a prospective creditor as soon as the notice was given and a creditor upon expiry of the redemption notice period notwithstanding that the fund had subsequently resolved to suspend redemptions.: -- Culross Global SPC Ltd v Strategic Turnaround Master Partnership Ltd [2010] UKPC 33 (United Kingsom, Privy Council on appeal from the Cayman Islands, 13 December 2010)