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    Lehman court limits ISDA Master Agreement set-off rights
    2010-05-12

    On May 5th, the United States Bankruptcy Court for the Southern District of New York issued a decision declaring that a party's right to setoff in an International Swaps and Derivatives Association, Inc. ("ISDA") Master Agreement is unenforceable in bankruptcy unless "strict mutuality" exists.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Surety, Safe harbor (law), Debt, Default (finance), International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    New decision distinguishing excusable neglect in filing proofs of claim after the bar date; denying leave to file late claims
    2010-05-21

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York distinguished excusable neglect in filing a claim before the expiration of a clear bar date. In a written opinion issued on May 20, 2010 in the case of In re Lehman Brothers Holdings, Inc., et. al, Case No. 08-13555 (JMP), Judge Peck denied seven motions for leave to file late claims finding none satisfied the Second Circuit’s strict standard to find excusable neglect.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Bankruptcy, Debtor, Federal Reporter, Prejudice, US Department of the Treasury, Lehman Brothers, Enron, Second Circuit, United States bankruptcy court
    Authors:
    Sharon L. Levine , S. Jason Teele
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    Lehman Brothers Holdings Inc. files complaint against JPMorgan Chase Bank, N.A.
    2010-05-27

    Yesterday, Lehman Brothers Holdings Inc. (LBHI) and the Official Committee of Unsecured Creditors of LBHI (the Committee) filed a complaint against JPMorgan Chase Bank, N.A. (JPMorgan) in the U.S. Bankruptcy Court for the Southern District of New York.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Bankruptcy, Clearing (finance), Collateral (finance), Threatened species, Leverage (finance), Brokerage firm, JPMorgan Chase, Lehman Brothers, United States bankruptcy court
    Authors:
    Matthew C. Sippel
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Foreclosure on UCC collateral speeds lender’s takeover of troubled real estate
    2010-05-26

    A recent bankruptcy New York court decision1 highlights a less commonly used option for lenders to take control of troubled real estate projects. The lender obtained relief from the automatic stay to foreclose on membership interests pledged to secure its mezzanine loan instead of foreclosing on its mortgage against the underlying real property.  

    Here is the case, and what lenders can learn from it.  

    The Case

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Real Estate, Herrick Feinstein LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Injunction, Hedge funds, Mortgage loan, Foreclosure, Condominium, Default (finance), Secured loan, Uniform Commercial Code (USA), United States bankruptcy court
    Authors:
    Stephen Selbst , Paul Rubin
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Inadequate consideration exclusion applies to claim for debt restructuring transaction
    2010-06-07

    The United States Court of Appeals for the Third Circuit, applying New York law, has held that an inadequate consideration exclusion unambiguously bars coverage for a lawsuit arising out of a debt restructuring transaction. Delta Financial Corp. v. Westchester Surplus Ins. Co. (In re Delta Financial Corp.), 2010 WL 1784054 (3d Cir. May 5, 2010).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Unsecured debt, Security (finance), Breach of contract, Fraud, Fiduciary, Consideration, Debt, Foreclosure, Misrepresentation, Cashflow, Debt restructuring, Certificate of deposit, Secured loan, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Southern district moots appeal of general growth dip financing
    2010-06-15

    The United States District Court for the Southern District of New York recently addressed an objection to the debtor-in-possession financing approved by the United States Bankruptcy Court for the Southern District of New York in the bankruptcy of General Growth Properties.1 The District Court’s decision, which holds that reversal on appeal of an order approving DIP financing does not invalidate the financing or liens granted by the postpetition lenders, if provided in good faith also addresses both the timeliness of the appeal and the merits of the arguments raised therein, provides a detai

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Debt, Good faith, Secured loan, Goldman Sachs, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    GFI Acquisition, LC v. American Federated Title Corp
    2010-07-08

    GFI Acquisition, LLC v. American Federated Title Corp., 2010 Bankr. LEXIS 1217

    An action was brought by the plaintiff alleging that the defendants breached an agreement of purchase and sale by failing to disclose provisions in the agreement which would operate to lock the plaintiffs out of subsequent negotiations to refinance loans on the properties to be assumed on the date of closing.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Gowling WLG, Breach of contract, Interest, Discovery, Negligence, Refinancing, United States bankruptcy court
    Authors:
    Louis A. Frapporti
    Location:
    USA
    Firm:
    Gowling WLG
    Corporate officer held personally liable for bankrupt corporation’s unpaid sales taxes
    2010-07-13

    In an interesting twist on a run-of-themill case regarding the personal liability of a corporate officer for unremitted sales taxes, the New York State Division of Tax Appeals held an owner (“Petitioner”) personally liable for sales tax even though the corporation was in Chapter 11 bankruptcy and was being run by a bankruptcy court-approved management company. In re Eugene Dinino, Docket Nos. 822605, 822606, 822607, 822608, 822609, 822610 (N.Y.S. Div. of Tax App. June 24, 2010).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Tax, Eversheds Sutherland (US) LLP, Bankruptcy, Debtor, Breach of contract, Fiduciary, Liability (financial accounting), Debtor in possession, Title 11 of the US Code, Administrative law judge, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    A late claim may cost you, even when you have an excuse
    2010-07-20

    A group of creditors learned the hard way that there may be no excuse for a late claim. U.S. Bankruptcy Judge James Peck of the Southern District of New York recently disallowed seven proofs of claim that had been filed late in the Lehman bankruptcies. Judge Peck held that the reasons cited by the parties for the late filing did not rise to the level of “excusable neglect” and he was thus disallowing their claims. This is of particular interest as it comes out of the Southern District of New York, which has one of the largest bankruptcy dockets in the country.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, BakerHostetler, Bankruptcy, Debtor, Good faith, Lehman Brothers, Constitution, Second Circuit, United States bankruptcy court, Eleventh Circuit
    Authors:
    Donald A. Workman , Christopher J. Giaimo , Adam J. Smith
    Location:
    USA
    Firm:
    BakerHostetler
    Automatic stay may be extended to enjoin non-debtors
    2010-08-18

    The automatic stay is one of the most fundamental bankruptcy protections. It enjoins the initiation or continuance of any action by any creditor against the debtor or the debtor’s property, including causes of action possessed by the debtor at time of the bankruptcy filing. The automatic stay offers this protection while bringing all of the debtor’s assets and creditors into the same forum, the bankruptcy court.

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Chadbourne & Parke LLP, Bankruptcy, Debtor, Injunction, Fraud, Class action, Limited liability company, Liquidation, Conveyancing, Investment company, Securities fraud, Securities Investor Protection Corporation, Racketeer Influenced and Corrupt Organizations Act 1970 (RICO) (USA), Trustee, United States bankruptcy court
    Authors:
    Bonnie Dye
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP

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