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    Tenth Circuit Quashes Fraudulent Transfer Suit Against Asset Buyer
    2016-12-19

    An undersecured mortgagee’s “release of [its entire underlying claim] was value obtained ‘in exchange for’ the [pre-bankruptcy] sale of the [debtor’s] property,” held the U.S. Court of Appeals for the Tenth Circuit on Dec. 6, 2016. In re Expert South Tulsa LLC, 2016 U.S. App. LEXIS 21704, at *11 (10th Cir. Dec. 6, 2016). The Tenth Circuit flatly rejected the debtor’s attempt “to set aside as a fraudulent transfer its own sale of real estate that was encumbered by a mortgage far exceeding the sale price.” Id. at *1.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Schulte Roth & Zabel LLP, Tenth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Texas Supreme Court Resolves Fraudulent Transfer Value Defense for Fifth Circuit
    2016-04-06

    “Reasonably equivalent value” as a defense to a fraudulent transfer suit “can be satisfied with evidence that the transferee (1) fully performed under a lawful, arm’s-length contract for fair market value, (2) provided consideration that had objective value at the time of the transaction, and (3) made the exchange in the ordinary course of the transferee’s business,” held the Supreme Court of Texas on April 1, 2016, in response to a certified question from the U.S. Court of Appeals for the Fifth Circuit. Janvey v. Golf Channel, ___ S.W.3d ___, 2016 WL 1268188, at *2 (Tex.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, White Collar Crime, Schulte Roth & Zabel LLP, Fair market value, Fifth Circuit, Texas Supreme Court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Seventh Circuit holds transferee liable for decline in value of fraudulently transferred stock
    2015-11-05

    A “bankruptcy court has discretion to award the [bankruptcy] trustee the actual [fraudulently transferred] property or its pre-transfer value,” held the U.S. Court of Appeals for the Seventh Circuit on Oct. 23, 2015. Hebenstreit v. Kaur, 2015 WL 6445461, at *2 (7th Cir. Oct. 23, 2015).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, United States bankruptcy court, Seventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Divided Third Circuit approves structured dismissal that provides class-skipping distribution
    2015-06-22

    A settlement providing for dismissal of a Chapter 11 case and distribution of estate property “that deviates from the Bankruptcy Code’s priority” scheme is permissible, held a divided panel of the U.S. Court of Appeals for the Third Circuit on May 21, 2015. Official Committee of Unsecured Creditors v. CIT Group/Business Credit Inc. (In re Jevic Holding Corp.), 2015 WL 2403443, at *1 (3d Cir. May 21, 2015) (2- 1) (“Jevic”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Delaware court enforces subordination agreements despite senior indenture trustee’s late filing of senior claims
    2014-07-29

    The United States District Court for the District of Delaware, on July 21, 2014, held that an indenture trustee’s late filing of senior claims did not waive the lenders’ contractual subordination rights, reversing the bankruptcy court. In re Franklin Bank Corporation, 2014 U.S. Dist. LEXIS 98327 (D. Del. July 21, 2014). Nor did the senior trustee’s late filing show inequitable conduct warranting equitable subordination of the tardily filed senior claims to timely filed junior claims.

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Waiver, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit examines make-whole premium: plain language controls
    2013-09-20

    On Sept. 12, 2013, the United States Court of Appeals for the Second Circuit affirmed the bankruptcy court’s decision to deny payment of a make-whole premium (the “Make-Whole Amount”) to bondholders under three separate indentures (the “Indentures”) based on the plain language of those agreements. U.S. Bank Trust Nat’l Ass’n v. AMR Corp. et al. (In re AMR Corp.), __ F.3d __, 2013 WL 4840474 (2d Cir. Sept. 12, 2013) (“In re AMR Corp. II”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Second Circuit, United States bankruptcy court
    Authors:
    David M. Hillman , Karen S. Park
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Secured lender’s full credit bid barred later recovery from guarantors
    2013-03-06

    The U.S. Court of Appeals for the Fifth Circuit held on Feb. 28, 2013, that a secured lender’s full credit bid for a Chapter 11 debtor’s assets at a bankruptcy court sale barred any later recovery from the debtor’s guarantors. In re Spillman Development Group, Ltd., ___ F.3d ___, 2013WL 757648 (5th Cir. 2/28/13). A “credit bid” allows a creditor to “offset its [undisputed] claim against the purchase price,” a right explicitly granted by Bankruptcy Code (“Code”) § 363(k). 3 Collier, Bankruptcy, ¶ 363.06[10], at 363-59 (16th rev. ed. 2010).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Surety, Debtor, Tortious interference, Secured loan, United States bankruptcy court, Fifth Circuit
    Authors:
    Adam C. Harris , Lawrence V. Gelber , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy court approves plan to liquidate CDO
    2012-01-19

    On Dec. 21, 2011, the U.S. Bankruptcy Court for the District of New Jersey approved a liquidation plan for collateralized-debt obligation issuer (“CDO”) Zais Investment Grade Limited VII (“ZING VII”). The plan incorporates a settlement between senior noteholders who had initiated the bankruptcy case by filing an involuntary petition against the CDO, and junior noteholders who were appealing the Bankruptcy Court’s April 26, 2011 order granting the involuntary petition.

    Filed under:
    USA, New Jersey, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Bankruptcy, Collateral (finance), Liquidation, Collateralized debt obligation, Mortgage-backed security, United States bankruptcy court
    Authors:
    Lawrence V. Gelber , David J. Karp , Craig Stein
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit affirms designation of secured lender’s vote and effective cram down of its claim
    2010-12-17

    The U.S. Court of Appeals for the Second Circuit, on Dec. 6, 2010, summarily affirmed a bankruptcy court’s designation of a secured lender’s vote on a reorganization plan in a two-page order, effectively enabling the debtor to cram down the lender’s claim. In re DBSD North America, Inc., __ F.3d__, 2010 WL 4925878 (2d Cir. Dec. 6, 2010).1 As a result, the lender who bought all of the debtor’s senior first-lien secured debt at par will be paid only interest over a period of four years before its loan matures. SeeIn re DBSD North America, Inc., 419 B.R. 179, 207-08 (Bankr.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Debt, Good faith, Voting, Bad faith, Convertible bond, Secured loan, Second Circuit, United States bankruptcy court, Third Circuit, US District Court for SDNY
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Champerty clarified: a victory for activist distressed debt and claims investors
    2009-11-03

    In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Security (finance), Fraud, Accounts receivable, Interest, Mortgage loan, Foreclosure, Default (finance), Distressed securities, Mortgage-backed security, Commercial mortgage, Merrill Lynch, UBS, Second Circuit
    Authors:
    Lawrence V. Gelber , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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