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    General Growth bankruptcy judge rejects bid by creditors to dismiss Chapter 11 filings of special purpose entities
    2009-08-28

    On August 11, 2009, in a closely monitored dispute in the bankruptcy proceeding of General Growth Properties, Inc. (“GGP”), the Bankruptcy Court for the Southern District of New York rejected motions filed by several mortgage lenders to dismiss the bankruptcy filings of certain special purpose entity subsidiaries (SPEs) of GGP. In re General Growth Properties, Inc., et al., No. 09-11977, slip op. (Bankr. S.D.N.Y. Aug. 11, 2009).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Sidley Austin LLP, Bankruptcy, Mortgage loan, Involuntary dismissal, Subsidiary, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Sidley Austin LLP
    GGP opinion leaves unanswered questions
    2009-08-28

    On August 11, the Honorable Allan L. Gropper issued an opinion of the U.S. Bankruptcy Court for the Southern District of New York denying five motions to dismiss certain Chapter 11 bankruptcy cases of several property-specific special purpose subsidiaries (SPE Debtors), including a number of issuers of commercial mortgage-backed securities (CMBS), that are owned by mall operator General Growth Properties, Inc.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Katten Muchin Rosenman LLP, Public company, Bankruptcy, Debtor, Mortgage loan, Real estate investment trust, Maturity (finance), Bad faith, Cashflow, Default (finance), Subsidiary, Commercial mortgage-backed security, Mortgage-backed security, Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Federal district court affirms bankruptcy court holding that inadequate consideration exclusion bars coverage
    2009-08-25

    A federal district court in Delaware, applying New York law, has affirmed a bankruptcy court's dismissal of an adversary proceeding brought by a bankrupt home mortgage company against its directors and officers liability insurers, holding that coverage for a pre-petition lawsuit against the mortgage company was barred by application of an “inadequate consideration” exclusion.Delta Fin. Corp. v. Westchester Surplus Lines Ins. Co., 2009 WL 2392882 (D. Del. Aug. 4, 2009).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Costs in English law, Unsecured debt, Consideration, Mortgage loan, Fair market value, Holding company, Cashflow, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Bankruptcy remote SPE structures have weaknesses
    2009-09-17

    The U.S. Bankruptcy Court for the Southern District of New York recently declined to dismiss the Chapter 11 petitions of several subsidiaries of General Growth Properties, Inc. (GGP) demonstrating that special purpose entities (SPEs), designed to avoid bankruptcy, can be subject to bankruptcy proceedings despite having strong cash flows, no debt defaults and "bankruptcy remote" structures.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Shareholder, Debtor, Security (finance), Debt, Mortgage loan, Bad faith, Cashflow, Default (finance), Commercial mortgage-backed security, Secured loan, United States bankruptcy court
    Authors:
    Deirdre B. Ruckman
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    GAO issues report on restructuring of Fannie Mae and Freddie Mac
    2009-09-14

    Today, the Government Accountability Office (GAO) released a report entitled, “Fannie Mae and Freddie Mac: Analysis of Options for Revising the Housing Enterprises’ Long-term Structures.” Last September, the Federal Housing Finance Agency placed the GSEs into conservatorship fearing that their deterioration would harm U.S. financial stability.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Alston & Bird LLP, Mortgage loan, Portfolio (finance), Sponsor (commercial), Mortgage-backed security, Business ethics, US Federal Government, Government Accountability Office, Federal Housing Finance Agency
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Bankruptcy court allows General Growth's "bankruptcy-remote" SPEs to remain in Chapter 11 despite creditors' objections
    2009-09-10

    In a decision made on August 11, 2009, the U.S. Bankruptcy Court for the Southern District of New York allowed solvent, special purpose entity subsidiaries of a bankrupt parent company, General Growth Properties, Inc., to maintain their Chapter 11 bankruptcy cases, raising several important issues related to the use of special purpose entities structured to be "bankruptcy-remote."

    GGP Business Model and 2009 Bankruptcy Filings

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Debtor, Security (finance), Market liquidity, Debt, Mortgage loan, Joint venture, Maturity (finance), Refinancing, Cashflow, Default (finance), Subsidiary, Commercial mortgage-backed security, Parent company, Secured loan, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Residential Credit Solutions wins bid in Legacy Loans Program pilot sale
    2009-09-18

    The Federal Deposit Insurance Corporation (FDIC) announced that Residential Credit Solutions was the winning bidder in a pilot sale of receivership assets conducted to test the funding mechanism for the Legacy Loans Program. The FDIC, as a receiver of Franklin Bank, SSB, owns a portfolio of residential mortgage loans with an unpaid principal balance of approximately $1.3 billion, which the FDIC will convey to a limited liability company. Residential Credit Solutions will pay $64,215,000 in cash for a 50% stake in the limited liability company using 6-to-1 leverage.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Katten Muchin Rosenman LLP, Limited liability company, Mortgage loan, Balance sheet, Conveyancing, Leverage (finance), Federal Deposit Insurance Corporation (USA), Federal Reserve (USA), US Secretary of the Treasury
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    American Home court denies bank’s deficiency claim by accepting discounted cash flow valuation of mortgage loan portfolio subject to repurchase agreement
    2009-09-17

    A Delaware bankruptcy court recently delivered the first decision applying section 562 of the Bankruptcy Code to a claim based on the termination of a repurchase agreement. In re American Home Mortgage Corp., Bankr. Case no. 07-1104, Dkt. no. 8021 (Bankr. D. Del. Sept. 8, 2009). The court’s ruling creates additional uncertainty in the calculation of bankruptcy claims, not only with respect to repurchase agreements but also with respect to other safe harbored financial contracts.

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Mortgage loan, Debtor in possession, Market value, Valuation (finance), Discounted cash flow, United States bankruptcy court
    Authors:
    Mark C. Ellenberg , Peter M. Dodson
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Receiver's sales of real estate free and clear post-Eastlake
    2009-09-29

    Receiverships have gained in popularity in foreclosure cases and in other types of litigation in recent years. Orders appointing receivers and setting forth the receiver’s duties frequently include a provision allowing the receiver to market and sell real estate. However, the question of whether a receiver legally has the ability to convey title to real estate, free and clear of liens and encumbrances, appears to have been answered in the negative, at least by one appellate district in Ohio.

    Filed under:
    USA, Ohio, Insolvency & Restructuring, Litigation, Real Estate, Porter Wright Morris & Arthur LLP, Commercial property, Marketing, Mortgage loan, Foreclosure, Due process, Conveyancing, Mortgage-backed security, Motion to vacate
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur LLP
    Capmark Financial Group
    2009-10-29

    On October 25, commercial real estate financing company Capmark Financial Group Inc., together with over 40 of its affiliates, filed a voluntary petition for chapter 11 bankruptcy protection in the U.S. Bankruptcy Court for the District of Delaware. The debtors cite among the reasons for their filing the declined values of their loan portfolio, tightening of credit markets and a heavy debt burden. Capmark, formerly a part of GMAC's residential mortgage business until 2006, listed $20.1 billion in assets and $21 billion in liabilities on its petition.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Bond market, Bankruptcy, Debtor, Commercial property, Debt, Mortgage loan, Liability (financial accounting), Joint venture, Legal burden of proof, State-owned enterprise, Ally Financial, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Fred W. Baggett
    Location:
    USA
    Firm:
    Greenberg Traurig LLP

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