The West Virginia Consumer Credit and Protection Act (“WVCCPA”) is a remedial statute designed to protect West Virginia consumers from improper debt collection. Only “consumers” have standing to file a lawsuit under the WVCCPA. The term “consumer” is defined as a natural person that owes a debt or allegedly owes a debt. But does a person still owe debt if that debt was discharged by a bankruptcy court? Although there is some conflicting case law in West Virginia, an answer is forming.
In recent years, constructively fraudulent transfer claims asserted in bankruptcy cases, especially those arising from LBOs and similar shareholder transactions, have hit a major road block.
The U.S. Bankruptcy Court for the District of Delaware recently issued an opinion that addresses, among other issues, the question of whether section 546(e) of the Bankruptcy Code preempts certain fraudulent transfer avoidance actions brought under state law. In re Physiotherapy Holdings Inc., No. 15-51238 (Bankr. D. Del. June 20, 2016).
Southside, LLC v SunTrust Bank (In re Southside, LLC), 520 B.R. 914 (Bankr. N.D. Ga. 2014) –
A debtor objected to attorney fees included in the proof of claim filed by a mortgagee, and the mortgagee moved for relief from the automatic stay to exercise its rights under a security deed securing the debtor’s guaranty based in part on the debtor’s lack of equity in the property.
In re Stacy’s, Inc., 508 B.R. 370 (Bankr. D. S.C. 2014) –
A debtor sold substantially all of its assets after negotiating with its primary secured creditor for carve-outs from the sale proceeds for administrative priority and general unsecured claims. When the administrative claims turned out to be greater than anticipated, the debtor sought court approval to use additional proceeds to pay income tax and other claims.
Chapter 15 of the Bankruptcy Code provides mechanisms for dealing with cases of cross-border insolvency. On Oct. 6, 2014, the U.S. Supreme Court, in Jaffé v. Samsung Electronics Co., Ltd., denied review of a decision of the U.S. Court of Appeals for the Fourth Circuit, upholding a bankruptcy court’s determination that a foreign debtor in a Chapter 15 case could not terminate its intellectual property licenses under German law, where such action would deprive the licensees of the debtor’s U.S.
The bankruptcy trustee of a property management company sought to recover money paid to a power company prior to bankruptcy as an avoidable preference. The Fifth Circuit agreed with both the bankruptcy court and the district court that the payments were settlement payments under a forward contract exempt from avoidance.