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    Ninth Circuit pumps new life into section 105 injunctions
    2008-01-31

    While Bankruptcy Code section 105 grants broad powers to issue injunctions, most bankruptcy courts are reluctant to enjoin litigation in other venues. A recent ruling by the U.S. Court of Appeals for the Ninth Circuit follows this trend, reversing a preliminary injunction issued by a bankruptcy court staying arbitration proceedings between two nondebtor parties.

    However, the Ninth Circuit also articulated specific standards for when such a section 105 injunction may be obtained. In re Excel Innovations, Inc., 502 F.3d 1086, 2007 WL 2555941 (9th Cir. Sept. 7, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Shareholder, Surety, Debtor, Injunction, Patent infringement, Federal Reporter, Preliminary injunction, Aetna, Ninth Circuit, United States bankruptcy court, Fourth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Representative of foreign debtor may act in US without recognition under chapter 15
    2008-02-08

    Must a foreign debtor's insolvency representative obtain permission from a United States bankruptcy court before exercising the debtor's rights as shareholder to remove and replace directors and officers of a US corporation? The Bankruptcy Appellate Panel (BAP) of the Ninth Circuit recently held not, provided that the representative does not require judicial assistance to exercise these rights.1

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Shareholder, Debtor, Injunction, Limited partnership, Liquidation, Articles of incorporation, Comity, Title 11 of the US Code, Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case
    Creditor’s pre-petition release of debtor - guarantor voided by Bankruptcy Appellate Panel
    2008-03-27

    In In re SNTL Corp.,1 the United States Bankruptcy Appellate Panel of the Ninth Circuit recently decided that if a creditor is required in another proceeding to disgorge as a preference a payment that had been guaranteed by the debtor, the debtor’s liability as guarantor may be revived, provided that the agreement releasing the debtor from its guarantee obligation to the creditor explicitly permits such revival.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Surety, Debtor, Unsecured debt, National Insurance, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy Appellate Panel says Section 510(b) may effectively extinguish fraud, breach of contract claims arising from purchase of LLC interests
    2008-03-06

    Sometimes the interpretation of the Bankruptcy Code leads to unexpected results. In a recent case, the US Bankruptcy Appellate Panel of the Ninth Circuit (BAP) has ruled that section 510(b) of the Bankruptcy Code requires the subordination of certain claims against a debtor to all equity interests in the debtor, even though such subordination may mean that the holders of the claims will receive nothing on the claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Breach of contract, Fraud, Interest, Limited liability company, Mortgage loan, Deed, Pro rata, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case
    High court denies cert in ruling
    2008-06-10

    The United States Supreme Court has denied a petition for certiorari in a case in which the U.S. Court of Appeals for the Ninth Circuit had articulated when a bankruptcy court should stay arbitration proceedings between non-debtor parties. In re Excel Innovations, Inc., 502 F.3d 1086, (9th Cir. 2007), cert. den., __ U.S. __ (Dkt. No. 07-963, April 28, 2008).

    Filed under:
    USA, Arbitration & ADR, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Injunction, Federal Reporter, Preliminary injunction, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Guaranty can be revived following avoidance
    2008-06-10

    The Ninth Circuit Bankruptcy Appellate Panel has issued a pair of rulings in a case involving high-stakes litigation—with a claim in excess of $230 million, including $3 million in postpetition attorneys’ fees and costs. Beyond the high stakes, the court’s conclusions in Centre Ins. Co. v. SNTL Corp. (In re SNTL Corp.), 380 B.R. 204 (9th Cir. BAP 2007) have far-reaching implications; they are likely to affect a multitude of financing transactions that become entangled in bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Reinsurance, Default (finance), Attorney's fee, Unsecured creditor, Title 11 of the US Code, California Insurance Commissioner, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Oversecured creditor wins default interest issue
    2008-07-16

    The Ninth Circuit held on July 3, 2008, that an oversecured creditor’s claim for payment was entitled to a “presumption in favor of the loan agreement’s default rate (an additional 2% interest), subject only to reduction based upon any equities involved.” General Elec. Capt’l Corp. v. Future Media Productions, Inc., 2008 WL2610459, *2 (9th Cir. 7/3/08). Reversing the lower courts, the Court of Appeals held that the bankruptcy court had improperly applied a questionable Ninth Circuit precedent when denying the lender a default rate of interest. Id., at *4.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Costs in English law, Debtor, Interest, Federal Reporter, Remand (court procedure), Default (finance), Substantive law, Secured loan, Ninth Circuit, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Collateral surcharge denied despite inadequacy of carve-out due to express waiver in DIP financing agreement
    2008-08-01

    As a general rule, absent an express agreement to the contrary, expenses associated with administering the bankruptcy estate, including pledged assets, are not chargeable to a secured creditor’s collateral or claim but must be paid out of the estate’s unencumbered assets. Recognizing, however, that the bankruptcy estate may be called upon to bear significant expense in connection with preserving or disposing of encumbered assets as part of an overall reorganization (or liquidation) strategy, U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Collateral (finance), Waiver, Property tax, Limited liability company, Foreclosure, Condominium, Liquidation, Secured creditor, Trustee, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Transferee(s) may be protected despite unknown bankruptcy of transferor
    2008-09-09

    Buyers of, and lenders upon, distressed California real property can sleep a little better following a recent U.S. Ninth Circuit Court of Appeals decision: In the Matter of Craig L. Tippett, 2008 U.S. App. LEXIS 18914 (September 4, 2008). In Tippett, the Court upheld the California bona fide purchaser statute against a federal preemption claim and declined to find a violation of the Bankruptcy Code’s automatic stay provision in order to affirm an unauthorized real property sale by the Chapter 7 debtor.

    Filed under:
    USA, California, Banking, Insolvency & Restructuring, Litigation, Real Estate, Bryan Cave Leighton Paisner (Bryan Cave), Federal preemption, Bankruptcy, Debtor, Good faith, Constructive notice, US Code, Title 11 of the US Code, California Civil Code, Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Bankruptcy Appeals Court limits lien-stripping in § 363(b) asset sale
    2008-08-18

    The Ninth Circuit’s Bankruptcy Appellate Panel (the “BAP”) held on July 18, 2008, that the Bankruptcy Code (“Code”) did not authorize a bankruptcy court’s approving the sale of a debtor’s property free and clear of a junior lien outside the reorganization plan context. In re PW, LLC __ B.R. __, 2008 WL 2840659 (B.A.P. 9th Cir. July 18, 2008). It directed the bankruptcy court to ascertain on remand whether state law permitted a court to compel the junior lienholder to release its lien in exchange for payment of less than the face value of its claim. Id., at *13-*16.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Interest, Secured creditor, Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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