An unexpected controversy has arisen recently in the high-yield bond market, one involving limiting the available remedies following default in the wake of last year’s decision by the Southern District of New York in Wilmington Savings Fund Society, FSB v.

By now, both indenture trustees and offices of the U.S. Trustee around the country are undoubtedly familiar with the Southern District of New York’s 2014 opinion in the case of In re Lehman Brothers Holdings, Inc., 508 B.R. 283 (S.D.N.Y. 2014) (Lehman II), finding that individual committee members must establish a “substantial contribution” to the case under Section 503 of the Bankruptcy Code before the payment of their fees will be approved as part of a Chapter 11 plan. In the years since the Lehman II decision, however, U.S.

The United States District Court for the Western District of New York recently granted defendant’s motion to dismiss plaintiff’s first cause of action alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (“FDCPA”), on the ground that plaintiff failed to sufficiently plead that the communications from defendant were sent in an attempt to collect a debt. SeeBurns v. Seterus, Inc., 2017 WL 104735 (W.D.N.Y. Jan. 11, 2017). In 2005, plaintiff signed a note and mortgage secured by her residence.

The United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) recently ordered the appointment of a Chapter 11 Trustee to manage the business affairs of sixteen entities in the China Fishery Group (the “CFG Debtors”) in In re China Fishery Group Limited (Cayman).

The Ninth Circuit Court of Appeals recently provided landlords dealing with a rejected lease with further guidance on the size and basis of their claims against a tenant’s bankruptcy estate. Kupfer v. Salma (In re Kupfer), No. 14-16697 (9th Cir. Dec. 29, 2016). The Ninth Circuit held that the statutory cap – 11 U.S.C.

In Metropolitan Government of Nashville & Davidson County v. Hildebrand, the Sixth Circuit explains how to read the phrase “applicable nonbankruptcy law” as used in the Bankruptcy Code. The chapter 13 individual bankruptcy case discussed the phrase in the context of 11 U.S.C. § 511(a), which provides that the appropriate interest rate for tax claims is whatever “applicable nonbankruptcy law” provides.

The decision

In Metropolitan Government of Nashville & Davidson County v. Hildebrand, the Sixth Circuit Court of Appeals explains how to read the phrase “applicable nonbankruptcy law” as it is used in the United States Bankruptcy Code. The case – a chapter 13 individual bankruptcy case – discussed the phrase in the context of section 511(a) of the Bankruptcy Code, which deals with the appropriate rate of interest applicable to tax claims.

There is an inherent tension between the goals of bankruptcy law and the state law doctrine of constructive trust. A central tenet of bankruptcy policy is that similarly situated creditors should be treated equally: because an insolvent business or individual will not be able to pay all creditors in full, a proper bankruptcy system must provide as equitable a distribution to each of them as possible. Constructive trust law, on the other hand, works to the advantage of a single creditor – which always means the detriment of the others when everyone is competing for limited funds.

(6th Cir. Feb. 23, 2017)

The Sixth Circuit affirms the bankruptcy court’s decision to confirm the debtor’s Chapter 13 plan, which included payment of overdue property taxes under Tennessee law with an interest rate of 12%. The state argued that the interest rate should be 18% due to the additional 6% interest permitted under the applicable state statute for a default penalty. The court holds that the 12% provided in the “nonbankruptcy law” is applicable, while the 6% penalty is not applicable. Opinion below.

Judge: Stranch

In January 2017, a divided panel of the United States Court of Appeals for the Second Circuit issued its widely reported opinion in Marblegate Asset Management, LLC vs. Education Management Corp., in which the majority held that the “right ... to receive payment” set forth in Section 316(b) of the Trust Indenture Act of 1939 (TIA) prohibits only nonconsensual amendments to an indenture’s core payment terms and does not protect the practical ability of bondholders to recover payment.

Background