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    Third Circuit holds mortgage escrow cushion subject to bankruptcy
    2010-12-30

    In In re Rodriguez, No. 09-2724 (3rd Cir. Dec 23, 2010), a three-judge panel for the Third Circuit considered whether an automatic stay under the Bankruptcy Code prevented a mortgage servicer from accounting for a pre-petition shortage on a mortgage escrow account in its post-petition calculation of the bankrupt debtors’ future monthly escrow payments. The majority held that the bankruptcy stay did prohibit such conduct by the loan servicer.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Accounting, Debt, Mortgage loan, Default (finance), Real Estate Settlement Procedures Act 1974 (USA), United States bankruptcy court, Fifth Circuit, Third Circuit
    Authors:
    Jennifer M. Keas
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Real estate law: rethinking receiverships
    2010-12-20

    When defaults spiked for loans underwritten by commercial mortgage-backed securities (CMBS), many Texas attorneys sought state court-appointed receivers for commercial real estate assets.

    Placing a struggling property in receivership has long been a remedy available for lenders, but Texas' relatively expedited and inexpensive nonjudicial foreclosure process limited the remedy's practical value for traditional lenders.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Real Estate, Securitization & Structured Finance, Munsch Hardt Kopf & Harr PC, Debtor, Collateral (finance), Commercial property, Debt, Mortgage loan, Foreclosure, Liability (financial accounting), Due diligence, Underwriting, Default (finance), Commercial mortgage-backed security, Mortgage-backed security, Secured loan
    Authors:
    Steven A. Caufield
    Location:
    USA
    Firm:
    Munsch Hardt Kopf & Harr PC
    What is the "primary purpose" of a credit transaction under the Truth In Lending Act? The Third Circuit will look beyond the facade to find out
    2010-12-19

    In St. Hill v. Tribeca Lending Corp., Case No. 09-2214, 2010 WL 2997724 (3rd Cir. Dec. 8, 2010), the Third Circuit showed that, in determining whether the Truth In Lending Act (TILA) applied to a credit transaction, it would look beyond obvious facts to ascertain a transaction's "primary purpose."

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Credit (finance), Collateral (finance), Statute of limitations, Consideration, Testimony, Mortgage loan, Refinancing, Trustee, Third Circuit
    Authors:
    Trent M. Johnson
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Escrow arrearages are pre-bankruptcy petition claims
    2011-01-03

    On December 23rd, the Third Circuit addressed whether the automatic stay provisions of the Bankruptcy Code prevents a home mortgage lender from accounting for the pre-petition escrow shortage in its post-petition calculation of future monthly escrow payments. The Court concluded that when the terms of the loan allow the lender to escrow taxes and insurance payments, the lender has a pre-petition claim. In re Francisco Rodriguez.  

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Accounting, Mortgage loan, Precondition, Third Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Sixth Circuit bankruptcy panel: replacement lien in post-petition rent is not adequate protection if lender already has lien
    2011-01-14

    The Bankruptcy Appellate Panel for the Sixth Circuit (BAP) recently held that a mortgagee that held a collateral assignment of rents on property in which the debtor had no equity was not adequately protected by cash collateral orders entered by the bankruptcy court that granted the lender a "replacement lien" on post-petition rents.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Interest, Mortgage loan, Conveyancing, Default (finance), Secured loan, Bank of America, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Michael H. Reed , Michael J. Custer
    Location:
    USA
    Firm:
    Troutman Pepper
    Pricing risk: Title II of the Dodd-Frank Act - orderly liquidation authority
    2011-01-11

    Title II of the Dodd-Frank Act establishes a receivership process by which the FDIC can engage in an orderly liquidation process to wind down the affairs of and liquidate the assets of certain failing financial companies that pose a significant risk to the financial stability of the United States.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Troutman Pepper, Shareholder, Debtor, Statutory interpretation, Hedge funds, Mortgage loan, Liquidation, Bank regulation, Federal Deposit Insurance Corporation (USA), Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
    Authors:
    Frank A. Mayer, III , Michael J. Callaghan
    Location:
    USA
    Firm:
    Troutman Pepper
    Los Angeles federal court has jurisdiction over RMBS suit
    2011-01-10

    On December 29, 2010, the Honorable Mariana R. Pfaelzer denied a motion by Stichting Pensioenfonds ABP ("Plaintiff") to remand its claims against Countrywide and others to state court. Judge Pfaelzer concluded that the case was sufficiently related to a bankruptcy case to confer federal jurisdiction in light of contractual indemnification obligations of a bankrupt originator, American Home Mortgage Corp., to Countrywide. The Court also concluded that there were no equitable grounds meriting remand.

    Filed under:
    USA, California, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Mortgage loan, Remand (court procedure)
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Up against the ivory tower: 2011 brings fresh IRS guidance on debt restructurings
    2011-01-10

    The current "Great Recession," which began in late 2007 with a maelstrom in the debt capital markets, has necessitated a rethinking of the federal income tax rules governing debt restructurings. The harsh rules2 promulgated by the Internal Revenue Service (IRS) in reaction to the 1991 taxpayer-favorable decision in Cottage Savings v. Commissioner,3 have been inhibiting restructurings. Instead, rules that did not trigger adverse tax results have been needed to induce lenders and borrowers to restructure obligations that can no longer be paid according to their terms.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Tax, Greenberg Traurig LLP, Debtor, Interest, Debt, Mortgage loan, Real estate investment trust, Excise, Default (finance), Internal Revenue Service (USA)
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Single asset real estate debtor cannot provide adequate protection to secured creditor for use of creditor's rents as cash collateral unless equity cushion exists in the property
    2011-01-24

    On December 23, 2010, the Bankruptcy Appellate Panel of the 6th Circuit, upheld the Eastern District of Kentucky’s Bankruptcy Court’s order that post petition rents, revenues or other funds derived from leased real property is property of the estate under 11 U.S.C. §541 and can be used as cash collateral under 11 U.S.C. §363. However, post petition rents can be used as cash collateral only if the debtor can provide adequate protection for the use of those rents through an existing equity cushion in the property.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Frost Brown Todd LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Limited liability company, Debt, Mortgage loan, Default (finance), Secured creditor, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Denise H. McClelland
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    The year in bankruptcy: 2010
    2011-02-01

    What should have been the best economic news of 2010 was largely obscured by the deluge of bad news dominating world headlines. The latter included tidings of chronically high unemployment; a continuing malaise in the U.S. housing market; wars in Iraq and Afghanistan; debt crises precipitating the implementation of austerity measures in Britain, Portugal, Italy, Greece, Spain, and Ireland (to name but a few), as well as countless state and local governments in the U.S.; a sharp escalation of food prices worldwide; a deepening U.S.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Jones Day, Bankruptcy, Mortgage loan
    Location:
    USA
    Firm:
    Jones Day

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