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    Partial “dirt-for-debt” plans in Chapter 11: the “indubitable equivalence” debate
    2011-08-08

    One consequence of the depressed real estate market has been numerous Chapter 11 bankruptcy cases wherein the debtor seeks confirmation of a “dirt-for-debt” plan. In such a plan, instead of paying the secured creditor the value of the real property securing the debt through restructured loan terms, the debtor proposes to convey part or all of the real property securing the debt to the creditor in full satisfaction of its secured claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Poyner Spruill LLP, Bankruptcy, Debtor, Collateral (finance), Debt, Legal burden of proof, Condominium, Conveyancing, Secured creditor, Deed of trust (real estate), Valuation (finance), Ninth Circuit
    Authors:
    Christopher R. Boothe , Lisa P. Sumner
    Location:
    USA
    Firm:
    Poyner Spruill LLP
    Between a rock and a hard place: the future of joint and several liability
    2012-12-03

    Who should bear the risk and ultimately the financial burden of insolvent wrongdoers when determining the liability of defendants to a plaintiff?  The defendants, or the plaintiff?

    The Law Commission revisits this question in an Issues Paper, published last week, after recommending in 1998 to retain the traditional position.1 

    Filed under:
    Australia, New Zealand, Insolvency & Restructuring, Insurance, Litigation, Chapman Tripp, Legal burden of proof, Joint and several liability
    Location:
    Australia, New Zealand
    Firm:
    Chapman Tripp
    Variations to charges: High Court dismisses the appeal in Octaviar
    2011-02-02

    Key Points: The High Court held there was no variation in the terms of the Charge and therefore no registration was required.

    On 1 September 2010 the High Court handed down its much anticipated decision in the appeal from the Queensland Court of Appeal in Re Octaviar Ltd (No 7) [2009] QCA 282, unanimously dismissing the appeal in Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2010] HCA 29.

    The fixed and floating charge

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Credit (finance), Surety, Debt, Deed, Liability (financial accounting), Legal burden of proof, Capital punishment, Subsidiary, Corporations Act 2001 (Australia), Queensland Supreme Court, High Court of Australia
    Authors:
    John Loxton
    Location:
    Australia
    Firm:
    Clayton Utz
    Finding the centre: COMI in a multi-jurisdictional world
    2009-09-30

    The facts behind Mr. Justice Lewison’s recent judgment in Stanford (STANFORD INTERNATIONAL BANK LIMITED [2009] EWHC 1441 (Ch)) have no direct connection with either the British Virgin or Cayman Islands but lawyers there do have particular reason to note the more general principles around the seemingly vexed but important issue of COMI in the context of multi-jurisdictional insolvency.

    Filed under:
    British Virgin Islands, Cayman Islands, United Kingdom, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Harneys, Debtor, Interest, Legal burden of proof, Uniform Act, High Court of Justice (England & Wales)
    Authors:
    Peter Tarn
    Location:
    British Virgin Islands, Cayman Islands, United Kingdom
    Firm:
    Harneys
    Courts give the green light for fraud-based class actions in Canadian insolvency proceedings
    2016-10-20

    Both of Canada’s primary insolvency statutes, the Bankruptcy and Insolvency Act (“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”) provide for an automatic stay of all legal proceedings when an insolvent debtor files for or seeks insolvency protection. The purpose of the stay is to provide breathing space to a debtor attempting to restructure its business so as to avoid “death by a thousand cuts” and also to ensure similarly situated creditors are treated equally.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Baker McKenzie, Bankruptcy, Shareholder, Debtor, Fraud, Class action, Legal burden of proof, Prejudice, Prima facie, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Michael Nowina
    Location:
    Canada
    Firm:
    Baker McKenzie
    What to Include in a Successful Application for Remuneration Approval
    2017-06-15

    Update on Liquidator remuneration post-Sakr1

    Key points summary

    Following the recent high-profile appeal decision2, the Supreme Court of New South Wales has now finalised the saga that was the review and approval of the remuneration of the Liquidator of Sakr Nominees.

    From that decision emerge several key points for insolvency professionals when considering their remuneration:

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Baker McKenzie, Costs in English law, Dividends, Deed, Legal burden of proof, Liquidation, Remand (court procedure), Liquidator (law), Proportionality (law), Corporations Act 2001 (Australia), Court of Appeal of Singapore
    Authors:
    Heather Collins
    Location:
    Australia
    Firm:
    Baker McKenzie
    Supreme Court of Victoria dismissed application to set aside statutory demand on basis of spurious and hypothetical dispute
    2016-07-22

    This week’s TGIF considers the case of Brandon Industries (Vic) Pty Ltd v Locker Pty Ltd [2016] VSC 373 where the Court dismissed an application to set aside a statutory demand due to the applicant’s failure to establish a genuine dispute or offsetting claim pursuant to section 459H of the Corporations Act 2001 (Cth).

    BACKGROUND

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Debtor, Debt, Legal burden of proof, Good faith, Corporations Act 2001 (Australia), Victoria Supreme Court
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Unreasonable director-related transactions - liquidators bear the onus of proof
    2016-04-01

    This week’s TGIF considers the decision of Crowe-Maxwell v Frost [2016] NSWCA 46 in which the Court held that a liquidator did not discharge his onus of proving relevant transactions were unreasonable director-related transactions.

    BACKGROUND

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Legal burden of proof, Liquidator (law)
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Liquidators not required to prove debts prior to commencing compensation proceedings for insolvent trading
    2014-09-05

    In the matter ofMustang Marine Australia Services Pty Ltd [2014] NSWSC 1074, Brereton J of the New South Wales Supreme Court held that there is no principle that before instituting proceedings a liquidator must be satisfied of the material facts that constitute its cause of action, and that absent such satisfaction the proceedings are an abuse of process. As long as proceedings are instituted for bona fide relief claimed and are not doomed then there is no abuse of process.

    FACTS

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Abuse of process, Debt, Legal burden of proof
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Your debtor has assets in France? - You can secure the payment of your claim and facilitate the enforcement of a court decision
    2010-08-26

    When it comes to securing enforcement, it is worth thinking outside the box, and looking at what can be done overseas: the French procedure code offers to litigants the ability to obtain the Court's authorization to perform conservatory measures which freeze your debtor's assets, by way of security, for the ultimate enforcement and performance of judgments made in substantive proceedings.

    Filed under:
    France, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Accounts receivable, Ex parte, Legal burden of proof, Intangible asset
    Authors:
    Clara S. Zerbib , Daniel Kadar
    Location:
    France
    Firm:
    Reed Smith LLP

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