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    Allocation of nondebtor’s payment to interest before principal violated bar on collection of post-petition interest
    2007-11-14

    The U.S. Court of Appeals for the Fourth Circuit has held that a creditor may not allocate payment by a nondebtor to interest first, before applying the balance to principal—and then seek to collect the remainder of the principal from a jointly liable debtor.

    That strategy violated the Bankruptcy Code’s prohibition against collecting post-petition interest, the court reasoned in National Energy & Gas Transmission, Inc. v. Liberty Electric Power, LLC, No. 06-1459 (4th Cir. July 10, 2007). The majority’s rationale drew a pointed dissent.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Surety, Debtor, Natural gas, Interest, Limited liability company, Debt, Electricity, Joint and several liability, TransCanada Corporation, United States bankruptcy court, Fourth Circuit
    Location:
    USA
    Firm:
    Reed Smith LLP
    US bankruptcy court denies recognition of Cayman insolvency proceedings concerning Bear Stearns funds
    2007-11-14

    Can a United States bankruptcy court deny recognition of a foreign insolvency proceeding even if no one opposes such recognition? In a recent decision, Judge Burton Lifland, a highly respected bankruptcy judge and one of the authors of Chapter 15 of the Bankruptcy Code, says yes.

    Liquidators of Bear Stearns Funds Seek Relief under Chapter 15

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, White & Case, Bankruptcy, Debtor, Injunction, Class action, Limited liability company, Liability (financial accounting), Liquidation, Investment funds, Liquidator (law), UNCITRAL, US Congress, Bear Stearns, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Administrative priority granted to secured claim
    2008-01-31

    In an issue the court notes is one of first impression, a Bankruptcy Appellate Panel for the U.S. Court of Appeals for the Ninth Circuit has held that a bankruptcy court could grant an administrative priority to a claim which also may be secured. Brown & Cole Stores, LLC v. Associated Grocers, Inc., 375 B.R. 873 (9th Cir. BAP, Aug. 17, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Shareholder, Debtor, Limited liability company, Debt, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Bankruptcy Appellate Panel says Section 510(b) may effectively extinguish fraud, breach of contract claims arising from purchase of LLC interests
    2008-03-06

    Sometimes the interpretation of the Bankruptcy Code leads to unexpected results. In a recent case, the US Bankruptcy Appellate Panel of the Ninth Circuit (BAP) has ruled that section 510(b) of the Bankruptcy Code requires the subordination of certain claims against a debtor to all equity interests in the debtor, even though such subordination may mean that the holders of the claims will receive nothing on the claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Breach of contract, Fraud, Interest, Limited liability company, Mortgage loan, Deed, Pro rata, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case
    Seventh Circuit limits duties of fairness opinion provider to scope of engagement letter
    2008-02-29

    The Ruling

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Professional Negligence, Squire Patton Boggs, Bankruptcy, Credit (finance), Security (finance), Marketing, Limited liability company, Investment banking, Gross negligence, Credit Suisse, Seventh Circuit
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Debtor should consider whether creditor has set-off rights before rejecting executory contracts
    2008-04-25

    In CDI Trust v. U.S. Electronics, Inc. (In re Communications Dynamics, Inc.),1 the United States Bankruptcy Court for the District of Delaware addressed the issue of whether a rejection damages claim is subject to setoff against a pre-petition debt owed by the creditor to the debtor. The Court found that a rejection damages claim should be treated as if it arose pre-petition, and that the provisions of section 553 permitted, rather than prevented, the setoff of the rejection damages claim against the pre-petition debt.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Breach of contract, Limited liability company, Debt, Subsidiary, Exclusive right, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Fifth Circuit interprets Congressional amendments to the definition of a “SARE” narrowly
    2008-04-25

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Consumer protection, Interest, Limited liability company, Foreclosure, Secured loan, US Congress, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Ohio's Tenth Appellate District addresses priority between mechanics’ liens and mortgages; prejudgment interest on mechanics’ liens
    2008-05-29

    On May 20, 2008 the Tenth Appellate District Court of Appeals issued an opinion in Guernsey Bank v. Milano Sports Enterprises, LLC holding on several issues of priority between mortgages and mechanics’ liens as well as the application of prejudgment interest on mechanics’ liens.

    Filed under:
    USA, Construction, Insolvency & Restructuring, Litigation, Bricker & Eckler LLP, Interest, Limited liability company, Mortgage loan, Foreclosure, Legal burden of proof, Admissible evidence
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    Contract party’s full performance does not prevent rejection of contract
    2008-07-31

    In COR Route 5 Co. v. Penn Traffic Co.1 (In re Penn Traffic Co), the United States Court of Appeals for the Second Circuit held that a non-debtor party to an executory contract may not, by fulfilling its contractual obligations post-petition, deprive the debtor of its ability to reject an executory contract.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Retail, Debtor, Breach of contract, Limited liability company, Remand (court procedure), Affirmative action, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Is getting US recognition of an off-shore fund insolvency proceeding now almost impossible?
    2008-07-14

    The November/December 2007 issue of Insolvency Notes featured an article highlighting a Manhattan-based federal bankruptcy court's refusal to officially recognize proceedings commenced in the Cayman Islands to liquidate two Bear Stearns-managed hedge funds that collapsed in June of that year.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, White & Case, Bankruptcy, Debtor, Consumer protection, Limited liability company, Hedge funds, Liquidation, Comity, Liquidator (law), Facebook, Bear Stearns, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case

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