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    Additional set-off rights against cash collateral accounts - better be clear
    2011-02-18

    Bank of America N.A. v. Lehman Brothers Holdings Inc. and Lehman Brothers Special Financing Inc. 439 B.R. 811 (2010) (U.S. Bankr. Ct., S.D.N.Y.)

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Stikeman Elliott LLP, Bankruptcy, Surety, Collateral (finance), Swap (finance), Debt, Common law, Lehman Brothers cases, Secured loan, Bank of America, Lehman Brothers, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Stikeman Elliott LLP
    “Flip” flap II: uncertainty in derivatives markets caused by the Lehman bankruptcy court’s decision will continue
    2011-02-17

    On December 15, 2010, Judge James Peck of the US Bankruptcy Court for the Southern District of New York (the Bankruptcy Court) approved Lehman Brothers Special Financing Inc.’s (LBSF) motion (the Motion) for approval of a settlement among LBSF, BNY Corporate Trustee Services Limited (BNY), Perpetual Trustee Company Limited (Perpetual) and others relating to certain note issuance and swap transactions with Saphir Finance Public Limited Company (Saphir) under a program known as the Dante Program.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Bankruptcy, Collateral (finance), Swap (finance), Public limited company, Default (finance), Bank of New York Mellon, Lehman Brothers, Court of Appeal of England & Wales, High Court of Justice (England & Wales), United States bankruptcy court
    Authors:
    Robert J. Rosenberg , Carlos Alvarez , Adam J. Goldberg , Amber L. Haywood
    Location:
    USA
    Firm:
    Latham & Watkins LLP
    N.Y. Bankruptcy Court: MERS lacks authority to assign mortgages
    2011-02-25

    In a ruling that borrowers may try to use in seeking to delay foreclosures or bankruptcy proceedings on proofs of claim, the U.S. Bankruptcy Court for the Eastern District of New York finds that the Mortgage Electronic Registration System (MERS) lacks authority to assign mortgages.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Ballard Spahr LLP, Bankruptcy, Debtor, Interest, Res judicata and issue estoppel, Mortgage loan, Foreclosure, Standing (law), Default judgment, Secured creditor, United States bankruptcy court
    Location:
    USA
    Firm:
    Ballard Spahr LLP
    Bad facts make bad law: another attack on MERS
    2011-03-01

    On February 10, 2011, the United States Bankruptcy Court for the Eastern District of New York issued a memorandum decision addressing whether the alleged holder of a mortgage loan had sufficient status as a secured creditor to seek relief from the automatic stay to pursue a foreclosure action.1 After resolving the primary issue in controversy on purely procedural grounds and granting the requested relief, the Court analyzed whether an entity that acquires its interest in a mortgage loan through an assignment from Mortgage Electronic Registration Systems, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Dentons, Debtor, Res judicata and issue estoppel, Mortgage loan, Foreclosure, Standing (law), Secured creditor, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Aimee M. Cummo , Stephen Kudenholdt , Hugh M. McDonald , Mitchell G. Williams
    Location:
    USA
    Firm:
    Dentons
    MERS clouds
    2011-03-11

    MERS’s authority to assign mortgages was called into question by a bankruptcy court in New York. In re Agard, 2011 Bankr. LEXIS 488 (Bankr. E.D.N.Y. Feb. 10, 2011). In response to the servicer’s motion for relief from the automatic stay, the debtor challenged the servicer’s standing on the ground that MERS lacked the authority to assign the mortgage to the servicer. Because a state court had previously entered a judgment of foreclosure and sale in favor of the servicer, the court was compelled by the Rooker Feldman doctrine to reject the debtor’s claims.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Debtor, Mortgage loan, Foreclosure, Standing (law), United States bankruptcy court
    Authors:
    Nancy R. Thomas
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    DISH Network, LIN settle carriage dispute, as bankruptcy court approves DISH bid for DBSD
    2011-03-18

    There was good news on two fronts this week for direct broadcast satellite (DBS) operator DISH Network. On Sunday, DISH settled a retransmission dispute with LIN Media with the signing of a new carriage contract that restored to DISH subscribers LIN broadcast network signals that were cut off on March 5. That development was followed by a New York bankruptcy court’s decision on Tuesday to approve a revised agreement through which DISH would acquire the assets of bankrupt mobile satellite services (MSS) provider DBSD North America for $1.5 billion.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Media & Entertainment, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Unsecured debt, Subscription business model, Direct-broadcast satellite, Federal Communications Commission (USA), Fox Broadcasting Company, Time Warner, Dish Network, Cablevision, United States bankruptcy court
    Authors:
    Patrick S. Campbell
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Indiana late wage penalties are not debts "for services" under NY law
    2011-03-15

    WHITELY v. MORAVEC (February 16, 2011)

    Filed under:
    USA, New York, Employment & Labor, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Wage, Bankruptcy, Shareholder, Employee Retirement Income Security Act 1974 (USA), Debt, Joint and several liability, United States bankruptcy court
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Appellants' brief filed in New York Court of Appeals in case alleging fraudulent restructuring by MBIA
    2011-03-28

    On March 16, 2011, plaintiffs in ABN Amro Bank, et al. v. MBIA Inc., et al. filed their opening brief in the New York Court of Appeals. Plaintiffs are appealing the 3-to-2 decision of an intermediate appellate court dismissing their suit challenging the "fraudulent restructuring" of monoline insurer MBIA. The case, brought by a group of banks that are beneficiaries of MBIA's structured finance-related policies, claims that MBIA transferred $5 billion in assets from MBIA Insurance Corporation (a failing subsidiary) to MBIA Illinois (a stronger subsidiary).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Orrick, Herrington & Sutcliffe LLP, Fraud, Res judicata and issue estoppel, Legal burden of proof, New York State Insurance Department
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    In brief: district court affirms Lehman Brothers safe-harbor setoff ruling
    2011-04-01

    In the July/August 2010 edition of the Business Restructuring Review, we reported on an important ruling handed down by bankruptcy judge James M. Peck in the Lehman Brothers chapter 11 cases addressing the interaction between the Bankruptcy Code’s general setoff rules (set forth in section 553) and the Code’s safe harbors for financial contracts (found principally in sections 555, 556, and 559 through 562). In In re Lehman Bros. Holdings, Inc., 433 B.R. 101 (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Swap (finance), Concession (contract), Lehman Brothers, Westlaw, Title 11 of the US Code, US District Court for the Southern District of New York
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Innkeepers bankruptcy court rules on CMBS certificateholder’s standing
    2011-03-31

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York ruled that a certificateholder of two CMBS securitization trusts (“CMBS Trusts”) had no standing to be heard in a chapter 11 case involving the borrowers under a securitized mortgage loan held by the CMBS Trusts.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Sidley Austin LLP, Mortgage loan, Standing (law), Commercial mortgage-backed security, United States bankruptcy court
    Location:
    USA
    Firm:
    Sidley Austin LLP

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