On September 15, 2009, in an order read from the bench, the Honorable James M. Peck, Bankruptcy Judge in the United States Bankruptcy Court for the Southern District of NewYork, and the presiding judge in the Chapter 11 proceedings of Lehman Brothers Holdings Inc. (“LBHI”) and other associated Lehman Brothers United States entities, held a key provision of the standard ISDA Master Agreement unenforceable in a bankruptcy context.
The U.S. Bankruptcy Court for the Southern District of New York recently prohibited insurers from terminating debtors' insurance contracts based on so-called "cesser" clauses, which provided for the automatic termination of insurance coverage upon the commencement of proceedings under any bankruptcy or insolvency law. LaMonica v. N. of Eng. Protecting & Indem. Ass'n Ltd. (In re Probulk Inc.), 407 B.R. 56 (Bankr. S.D.N.Y. 2009).
The U.S. Bankruptcy Court for the Southern District of New York issued a decision earlier this year that is likely to have a significant impact on bankruptcy sales of property. In In re New 118th, Inc., 398 B.R. 791 (Bankr. S.D.N.Y. 2009), the court held that certain tax exemptions available pursuant to section 1146(a) of the Bankruptcy Code in connection with transfers of property that occur "under a plan," apply to pre-confirmation sales that close after confirmation and are necessary to the consummation of the debtor's plan.
A fundamental component in the commercial mortgage-backed securities ("CMBS") market is the lender's reliance that the loan is made to a "bankruptcy remote" special purpose entity ("SPE"). The loan documents and operating agreements relating to an SPE typically require that the SPE maintain separate existence and contain restrictions that limit the SPE's debt and ensure separateness.
The U.S. Bankruptcy Court for the Southern District of New York has granted debtors Lehman Brothers Holdings Inc.’s request to pursue a plan for developer SunCal Co., which is subject to a pending bankruptcy case in the Central District of California. Prior to LBHI’s bankruptcy filing, the debtors had provided SunCal with funding in an amount of approximately $2.2 billion. In January, SunCal commenced an adversary proceeding in its own bankruptcy case seeking to have LBHI’s claims subordinated. SunCal opposes LBHI’s filing a plan and has put forth its own plan in the case.
On October 2, the official committee of unsecured creditors in the chapter 11 cases of Lyondell Chemical Co. filed a motion for the appointment of an examiner in the U.S. Bankruptcy Court for the Southern District of New York. The committee asserts that an examiner is needed to investigate allegations of a conflicted rights offering sponsor, the debtors’ refusal to refinance the debtor-in-possession credit facility, and the debtors’ refusal to formulate a plan of reorganization with an appropriate reserve for unsecured creditors pending resolution of the committee’s adversary proceeding.
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.
CIT Group Inc.
The dispute over the disposition of customer records held by the "Clear" airport traveler program casts a spotlight once again on the handling of consumer personal data when a business falls on hard times. In such circumstances, the desire of the debtor to preserve or maximize the value of its business assets can conflict with legitimate privacy interests of individuals who were customers of the business.
Charter Communications stepped closer to emerging from Chapter 11 protection as a New York bankruptcy judge approved the company’s pre-arranged plan of reorganization on Tuesday. Based in St. Louis, Charter ranks as the nation’s fourth largest cable system operator with 4.9 million subscribers across 27 states. Straining under a debt load of $21.7 billion, Charter filed for bankruptcy protection in March after bondholders in possession of $8 billion of the company’s debt agreed to exchange their debt for equity in the reorganized entity. The plan endorsed by U.S.