HERE LIONS ROAM: CISG AS THE MEASURE OF A CLAIM'S

VALUE AND VALIDITY AND A DEBTOR'S

DISCHARGEABILITY

Amir Shachmurove*

INTRODUCTION ............................................ ..... 463

I. A COMEDY OF ERRORS .............. 468

II. RELEVANT BANKRUPTCY LAW: THE CODE AND THE RULES ............ 470

A. Code and Rules .......................... ......... 470

B. Determination of a Claim 's Validity and Value .............. 471

C. Temporary Valuation Pursuant to Rule 3018(a) .... ........ 475

In Kaye v. Blue Bell Creameries (In re BFW Liquidation), 899 F.3d 1178 (11th Cir. 2018), the U.S. Court of Appeals for the Eleventh Circuit found that a liability for an allegedly preferential transfer may be reduced by the amount of new value given, regardless of whether that new value has already been repaid by the debtor before its bankruptcy filing.

ATD Corporation, along with nine affiliates and subsidiaries, has filed a petition for relief under chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12221).

In a recent decision, Heritage Home Group LLC, et al., Case No. 18-11736-KG, 2018 WL 4684802 (Bankr. D. Del. Sept. 27, 2018), Judge Kevin Gross, U.S. Bankruptcy Judge for the District of Delaware, held that a consultant tasked with liquidating the debtors’ assets under a store closing and asset disposition agreement (“Disposition Agreement”) is not a professional, and consequently, not required to be retained under Section 327(a) of the Bankruptcy Code.

In hindsight, it seems inevitable that constitutional and other jurisdictional problems would arise when Congress, in enacting the Bankruptcy Reform Act of 1978, created impressive new powers and responsibilities for the bankruptcy courts (along with a considerable degree of independence) but denied them the status of Article III courts under the Constitution (by denying its judges lifetime tenure, as Article III requires). And it didn’t take long for the problems to arise.

The Bottom Line

Mattress Firm, Inc., along with forty (40) affiliates and subsidiaries, has filed a petition for relief under chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12241). Mattress Firm’s petition estimates its assets and liabilities to both be between $1–$10 billion.

Although the Federal Priority Act[1] has been deemed to be “almost as old as the Constitution”

In In re Houston Regional Sports Network, L.P., 886 F.3d 523 (5th Cir. 2018), the U.S. Court of Appeals for the Fifth Circuit held that bankruptcy courts have flexibility in selecting the date on which to value collateral, "so long as the bankruptcy court takes into account the purpose of the valuation and the proposed use or disposition of the collateral at issue." In so holding, the Fifth Circuit rejected the proposition that a bankruptcy court must value collateral as of either the bankruptcy petition date or the effective date of a cramdown chapter 11 plan.

ONE Aviation Corporation, along with eleven subsidiaries and affiliates, has filed a petition for relief under chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12309).