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    Amended bankruptcy rules approved by the U.S. Supreme Court
    2012-06-12

    On April 23, 2012, the U.S. Supreme Court approved amendments to the Federal Rules of Bankruptcy Procedure. The amended rules automatically become effective on December 1, 2012, unless Congress acts before then to reject, modify, or delay the rule changes. Several of the amendments involve technical and conforming changes to eliminate inconsistencies within the existing Bankruptcy Rules, as well as changes designed to make the bankruptcy rules consistent with the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    30-year Treasury bonds not “indubitable equivalent” of electing secured creditor’s mortgage lien
    2012-06-01

    In In re River East Plaza, LLC, 669 F.3d 826 (7th Cir. 2012), the Seventh Circuit Court of Appeals affirmed a bankruptcy court's ruling that a debtor could not "cram down" a chapter 11 plan over the objection of an undersecured creditor which had made a section 1111(b) election by substituting a lien on 30-year U.S. Treasury bonds as the "indubitable equivalent" of the creditor's mortgage lien on the property.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Collateral (finance), Federal Reporter, Title 11 of the US Code, United States bankruptcy court, Seventh Circuit
    Authors:
    Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    TOUSA: Eleventh Circuit upholds fraudulent transfer opinion against lenders
    2012-05-31

    On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued a decision[1]  in the much-watched litigation involving the residential construction company, TOUSA, Inc. ("TOUSA"). The decision reversed the prior decision of the District Court, [2] reinstating the ruling of the Bankruptcy Court.[3]

    Background

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Credit (finance), Unsecured debt, Debt, Subsidiary, Title 11 of the US Code, United States bankruptcy court, Eleventh Circuit
    Authors:
    Robert J. Graves (Bob) , Vanessa G. Spiro , Barry A. Jacobs
    Location:
    USA
    Firm:
    Jones Day
    First impressions: defining the limits of a bankruptcy court’s discretion in Chapter 15
    2012-06-01

    October 17, 2012, will mark the seven-year anniversary of the effective date of chapter 15 of the Bankruptcy Code, which was enacted as part of the comprehensive bankruptcy reforms implemented under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Debtor, Consumer protection, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Pedro A. Jimenez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Effect of acceleration upon a Chapter 11 filing on enforceability of make-whole or prepayment premiums
    2012-05-14

    Indentures often contain make-whole premiums payable upon early redemption of the debt, and term B loan agreements often include "soft call" protection in the form of prepayment premiums during the early life of the loan. If the debt issuer becomes subject to a chapter 11 proceeding after the debt issuance, the question then arises as to how this payment obligation is to be treated: Does the make-whole or prepayment premium constitute unmatured interest due as a result of the debt acceleration, which would be disallowed, or is it liquidated damages?

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Debtor, Interest, Debt, Maturity (finance), Liquidated damages
    Authors:
    Vanessa G. Spiro , Noopur N. Garg
    Location:
    USA
    Firm:
    Jones Day
    In brief: rising to the Stern challenge
    2012-04-13

    Putting it mildly, the U.S. Supreme Court’s ruling last year in Stern v. Marshall, 132 S. Ct. 56 (2011), cast a wrench into the day-to-day operation of U.S. bankruptcy courts scrambling to deal with a deluge of challenges—strategic or otherwise—to the scope of their “core” jurisdiction to issue final orders and judgments on a wide range of disputes. In Stern, the Court ruled that, to the extent that 28 U.S.C.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, US Constitution, Article III US Constitution, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    The rationale against substantive consolidation of nondebtor entities: Florida on the front line
    2012-04-13

    On January 10, 2012, a Florida bankruptcy court ruled in In re Pearlman, 462 B.R. 849 (Bankr. M.D. Fla. 2012), that substantive consolidation is purely a bankruptcy remedy and that it accordingly did not have the power to consolidate the estate of a debtor in bankruptcy with the assets and affairs of a nondebtor. In so ruling, the court staked out a position on a contentious issue that has created a widening rift among bankruptcy and appellate courts regarding the scope of a bankruptcy court’s jurisdiction over nondebtor entities.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, United States bankruptcy court, Eleventh Circuit
    Authors:
    Dara R. Levinson
    Location:
    USA
    Firm:
    Jones Day
    Equitable mootness and arbitration: first impressions in the Ninth Circuit
    2012-04-01

    2012 is shaping up as a year of bankruptcy first impressions for the Ninth Circuit. The court of appeals sailed into uncharted bankruptcy waters twice already this year in the same chapter 11 case. On January 24, the court ruled in In re Thorpe Insulation Co., 2012 WL 178998 (9th Cir. Jan. 24, 2012) ("Thorpe I"), that an appeal by certain nonsettling asbestos insurers of an order confirming a chapter 11 plan was not equitably moot because, among other things, the plan had not been "substantially consummated" under the court's novel construction of that statutory term.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit, Tenth Circuit
    Authors:
    Paul D. Leake , Peter J. Benvenutti , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    No equitable tolling of Section 548 “look-back” period
    2012-04-13

    In Industrial Enterprises of America v. Burtis (In re Pitt Penn Holding Co., Inc.), 2012 WL 204095 (Bankr. D. Del. Jan.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Statute of limitations, Debtor in possession, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Haben Goitom
    Location:
    USA
    Firm:
    Jones Day
    Credit bidding and the Supreme Court: what happens next?
    2012-03-08

    On December 12, 2011, the Supreme Court granted a petition for certiorari in a case raising the question of whether a debtor's chapter 11 plan is confirmable when it proposes an auction sale of a secured creditor's assets free and clear of liens without permitting that creditor to "credit bid" its claims but instead provides the creditor with the "indubitable equivalent" of its secured claim. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, No. 11-166 (cert. granted Dec. 12, 2011).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Credit (finance), Debtor, Secured creditor, Secured loan, Title 11 of the US Code
    Authors:
    Beth Heifetz , Kevyn D. Orr , Dan T. Moss
    Location:
    USA
    Firm:
    Jones Day

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