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    First impressions: commercial leases may be assumed within 210-day deadline and assigned later
    2013-11-21

    Commercial landlords hailed as a significant victory the enactment in 2005 of a 210-day “drop dead” period after which a lease of nonresidential real property with respect to which the debtor is the lessee is deemed rejected unless, prior to the expiration of the period, a chapter 11 debtor in possession (“DIP”) or bankruptcy trustee assumes or rejects the lease.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Debtor, Landlord
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Stockbroker defense shields Ponzi-scheme broker fees and commissions from avoidance
    2013-11-21

    InGrayson Consulting, Inc. v. Wachovia Securities, LLC (In re Derivium Capital LLC), 716 F.3d 355 (4th Cir. 2013), the U.S. Court of Appeals for the Fourth Circuit examined whether certain securities transferred and payments made during the course of a Ponzi scheme could be avoided as fraudulent transfers under sections 544 and 548 of the Bankruptcy Code. The court upheld a judgment denying avoidance of pre-bankruptcy transfers of securities because the debtor did not have an “interest” in the securities at the time of the transfers.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Conflict of laws, Debtor, Security (finance), Title 11 of the US Code, Fourth Circuit
    Authors:
    Dara R. Levinson , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    In re Putnal: adequately protecting postpetition rents
    2013-09-30

    Section 552(b)(2) of the Bankruptcy Code provides that if a creditor prior to bankruptcy obtained a security interest in rents paid to the debtor, that security interest extends to postpetition rents to the extent provided in the security agreement. Courts have disagreed, however, on the question of whether the debtor must provide adequate protection with respect to such postpetition rents. The resolution of this issue typically determines whether the debtor may use a portion of the postpetition rents that it receives to fund the administrative costs of its bankruptcy.

    Filed under:
    USA, Georgia, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor
    Authors:
    Oliver S. Zeltner
    Location:
    USA
    Firm:
    Jones Day
    Ninth Circuit splits from Fourth Circuit on involuntary bankruptcy standard: In re Marciano
    2013-09-30

    A judgment creditor who is considering filing an involuntary bankruptcy petition against a debtor should consult venue-specific controlling law if the debtor has appealed the judgment. Depending on the jurisdiction, the debtor’s appeal may or may not be a factor for the bankruptcy court to consider in determining whether the creditor’s claim meets the involuntary petition requirements of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Ninth Circuit, United States bankruptcy court, California Supreme Court, Fourth Circuit
    Authors:
    Brett J. Berlin
    Location:
    USA
    Firm:
    Jones Day
    Chapter 15 gap period relief subject to preliminary injunction standard
    2013-09-30

    Unlike in cases filed under other chapters of the Bankruptcy Code, the filing of a petition for recognition of a foreign bankruptcy or insolvency case under chapter 15 does not automatically trigger a stay of actions against a debtor or its U.S. assets. Instead, the automatic stay generally applies only at such time that the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Veerle Roovers , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Secured creditor may choose to take no action during Chapter 11 case without hazarding lien stripping
    2013-09-30

    A long-standing legal principle is that liens pass through bankruptcy unaffected. Like every general rule, however, this tenet has exceptions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Interest, Foreclosure, Secured creditor, Fifth Circuit
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    The U.S. trustee's new chapter 11 fee guidelines
    2013-08-13

    Following the culmination of two public comment periods spanning more than a year, the Office of the United States Trustee, a unit of the U.S. Department of Justice (the “DOJ”) assigned to oversee bankruptcy cases, issued new final guidelines on June 11 governing the payment of attorneys’ fees and expenses in large chapter 11 cases—cases with $50 million or more in assets and $50 million or more in liabilities.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US Department of Justice, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    A cautionary tale for insider lenders: Ninth Circuit endorses recharacterization remedy in bankruptcy
    2013-07-31

    The ability of a bankruptcy court to reorder the priority of claims or interests by means of equitable subordination or recharacterization of debt as equity is generally recognized. Even so, the Bankruptcy Code itself expressly authorizes only the former of these two remedies. Although common law uniformly acknowledges the power of a court to recast a claim asserted by a creditor as an equity interest in an appropriate case, the Bankruptcy Code is silent upon the availability of the remedy in a bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court
    Authors:
    Lisa G. Laukitis , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit: fraudulently transferred assets not estate property until recovered
    2013-07-31

    The U.S. Court of Appeals for the Tenth Circuit―in Rajala v. Gardner, 709 F.3d 1031 (10th Cir. 2013)―has joined the Second Circuit and departed from the Fifth Circuit by holding that an allegedly fraudulently transferred asset is not property of the estate until recovered pursuant to section 550 of the Bankruptcy Code and therefore is not covered by the automatic stay. According to the court, its decision “gives Congress’s chosen language its ordinary meaning, and abides by a rule against surplusage.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Second Circuit, Fifth Circuit, Tenth Circuit
    Authors:
    Jennifer L. Seidman
    Location:
    USA
    Firm:
    Jones Day
    Safe harbor redux: the Second Circuit revisits the Bankruptcy Code’s protection against avoidance of securities contract payments
    2013-07-31

    “Safe harbors” in the Bankruptcy Code designed to minimize “systemic risk”—disruption in the securities and commodities markets that could otherwise be caused by a counterparty’s bankruptcy filing—have been the focus of a considerable amount of judicial scrutiny in recent years. The latest contribution to this growing body of sometimes controversial jurisprudence was recently handed down by the U.S. Court of Appeals for the Second Circuit.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Security (finance), Safe harbor (law), Debtor in possession, Title 11 of the US Code, Second Circuit
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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