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    Litigation challenges counterparty right to withhold payments under Section 2(a)(iii) of ISDA Master Agreement as violation of automatic stay provisions of US Bankruptcy Code
    2009-08-11

    In a recently filed motion in the United States Bankruptcy Court Southern District of New York (the “Motion”), Lehman Brothers Holdings Inc. (“LBHI”) is seeking to compel Metavante Corporation (“Metavante”) to perform its obligations under a swap agreement between Metavante and Lehman Brothers Special Financing Inc.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Condition precedent, Libor, Debtor, Safe harbor (law), Interest, Swap (finance), Liquidation, Default (finance), Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    The Banking Act 2009: counterparty rights and insolvent banks
    2009-03-10

    Historically, the United Kingdom has not had a specialised bankruptcy regime for dealing with the failures of financial institutions. Rather, these were handled under the same rules that applied to ordinary corporations.

    Filed under:
    United Kingdom, USA, Banking, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Share (finance), Security (finance), Liability (financial accounting), Liquidation, Broker-dealer, Subsidiary, Commodity Exchange Act 1936 (USA), Banking Act 2009 (UK), Federal Deposit Insurance Act 1950 (USA), HM Treasury (UK), Lehman Brothers, FSA, Bank of England
    Location:
    United Kingdom, USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Continued viability of “earmarking doctrine” defense to preference actions affirmed by Fifth Circuit
    2009-01-30

    In In re Entringer Bakeries, Inc.,1 the United States Court of Appeals for the Fifth Circuit affirmed the viability of the “earmarking doctrine” as a judicially-created defense to a preference action under section 547(b) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Collateral (finance), Leasehold estate, Interest, Debt, Maturity (finance), Liquidation, Secured loan, Title 11 of the US Code, Small Business Administration (USA), SCOTUS, United States bankruptcy court, Fifth Circuit, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Dismissal of Involuntary Bankruptcy Petition Against Taberna CDO is Win for Securitization Industry
    2018-11-20

    On November 8, 2018, Judge Vyskocil of the U.S. Bankruptcy Court for the Southern District of New York issued a decision dismissing the involuntary petition that had been filed against Taberna Preferred Funding IV, Ltd. (“Taberna”), a non-recourse CDO, thus ending a nearly seventeen-month-long saga that was followed closely by bankruptcy practitioners and securitization professionals alike. SeeTaberna Preferred Funding IV, Ltd. v. Opportunities II Ltd., et. al., (In re Taberna Preferred Funding IV, Ltd.), No. 17-11628 (MKV), 2018 WL 5880918, at *24 (Bankr.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Amicus curiae, Consent, Liquidation, Solicitation, Tender offer
    Authors:
    Michele C. Maman , Howard R. Hawkins Jr. , Andrew M. Greenberg , Richard Solow
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Preferential transfer claims are not subject to pre-petition arbitration agreements
    2008-09-30

    In Bethlehem Steel Corp. v. Moran Towing Corp. (In re Bethlehem Steel Corp.),1 the United States Bankruptcy Court for the Southern District of New York held that preferential transfer claims were not arbitrable. The Court reasoned that because the avoidance powers did not belong to the debtor, but rather were creditor claims that could only be brought by a trustee or debtor-in-possession, they were not subject to the arbitration clauses in contracts to which the creditors were not parties.

    The Dispute and the Arbitration Clauses

    Filed under:
    USA, New York, Arbitration & ADR, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Security (finance), Arbitration clause, Liquidation, Debtor in possession, Title 11 of the US Code, US Congress, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman Bankruptcy Court issues safe harbor decision
    2014-01-06

     

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Amicus curiae, Liquidation, Bankruptcy of Lehman Brothers, Title 11 of the US Code, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court
    Authors:
    Kathryn M. Borgeson , Mark C. Ellenberg , Lary Stromfeld
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman court orders outline rights of counterparties to safe harbored financial contracts
    2008-09-21

    September 21, 2008 Following a week of unprecedented market upheaval, players in financial contracts got some reassurance from the bankruptcy judge presiding over the liquidation of broker/dealer Lehman Brothers Inc. (“LBI”) and the sale of a portion of its assets to Barclays Capital Inc. (“BCI”).

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Collateral (finance), Security (finance), Swap (finance), Commodity, Foreclosure, Liquidation, Broker-dealer, Lehman Brothers, Securities Investor Protection Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Chapter 11 plan ruled unconfirmable without a confirmation hearing
    2012-08-02

    In In reAm. Capital Equip., LLC1 the Third Circuit addressed the issue of whether a bankruptcy court has the authority to determine at the disclosure statement stage that a Chapter 11 plan is unconfirmable without holding a confirmation hearing. The court held that when a plan is patently unconfirmable, so that no dispute of material fact remains and defects cannot be cured by creditor voting, a bankruptcy court is authorized to convert the case to Chapter 7 without holding a confirmation hearing. Am.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, Liquidation, United States bankruptcy court, Third Circuit
    Authors:
    Michael H. Reed , Lesley S. Welwarth
    Location:
    USA
    Firm:
    Troutman Pepper
    Third Circuit issues important ruling on collateral valuation and lien-stripping in Chapter 11 cases
    2012-05-29

    The United States Court of Appeals for the Third Circuit recently issued an important decision on the valuation of collateral of secured creditors and “lien-stripping” in Chapter 11 cases. In In re Heritage Highgate, Inc.,1 the court held that in a Chapter 11 case, the value of a secured creditor’s collateral under §506(a) of the Bankruptcy Code2 was the fair market value of the property as established by expert testimony and it was permissible to “strip the lien” of the creditor where it was unsupported by collateral value.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, Collateral (finance), Liquidation, Third Circuit
    Authors:
    Michael H. Reed
    Location:
    USA
    Firm:
    Troutman Pepper
    Supreme Court unanimously upholds right of secured creditor to credit bid in sale under Chapter 11 plan
    2012-05-29

    In a unanimous decision, the U.S. Supreme Court held that debtors may not obtain confirmation of a Chapter 11 cramdown plan that provides for the sale of collateral free and clear of a creditor’s lien but does not permit the creditor to credit-bid at the sale. InRadlax Gateway Hotel, LLC et al. v.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, Interest, Liquidation, Secured creditor, United States bankruptcy court
    Authors:
    Michael H. Reed
    Location:
    USA
    Firm:
    Troutman Pepper

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