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    BAP decision in City of Vallejo Chapter 9 case becomes final
    2009-10-15

    An opinion issued earlier this year by the Ninth Circuit Bankruptcy Appellate Panel in the largest municipal bankruptcy since Orange County has become final.

    The BAP decision in the City of Vallejo, California, case became final when the appellant city labor unions voluntarily withdrew their further appeal to the Ninth Circuit. The appeal to the BAP had followed an eight-day bankruptcy court trial over whether Vallejo was eligible to be a chapter 9 debtor. On June 26, 2009, the BAP issued an opinion affirming the bankruptcy court's determination that Vallejo was eligible.

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Public, Reed Smith LLP, Bond (finance), Bankruptcy, Debtor, Trade union, Accounting, Debt, Good faith, Balance sheet, Cashflow, US GAAP, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Mike C. Buckley
    Location:
    USA
    Firm:
    Reed Smith LLP
    No free ride: 9th Circuit permits lender to repossess vehicle when bankruptcy debtor fails to recommit
    2009-11-03

    In Dumont v. Ford Motor Credit Company, the Ninth Circuit Court of Appeals confirms the Bankruptcy Code does not protect a debtor’s personal property collateral if the debtor fails to commit to redeem, reaffirm or assume the underlying loan—even if the debtor continues timely to make loan payments.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Pillsbury Winthrop Shaw Pittman LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Personal property, Ninth Circuit
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP
    Second Circuit allows post-bankruptcy legal fees based on pre-bankruptcy indemnity agreement
    2009-11-13

    The United States Court of Appeals for the Second Circuit held on Nov. 5, 2009, that a creditor was entitled to its post-bankruptcy legal fees incurred on a pre-bankruptcy indemnity agreement. Ogle v. Fid. & Deposit Co. of Md., __F.3d __, No. 09-0691-bk, 2009 U.S. App. LEXIS 24329 (2d Cir. Nov. 5, 2009). Affirming the lower courts, the Second Circuit explained that the Bankruptcy Code (“Code”) “interposes no bar . . . to recovery.” Id. at *8-9 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Federal Reporter, Default (finance), Substantive law, Attorney's fee, Unsecured creditor, Eighth Circuit, Second Circuit, Ninth Circuit
    Authors:
    Michael L. Cook , Lawrence V. Gelber , Adam C. Harris , David M. Hillman , Brian D. Pfeiffer
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Unsecured creditors may claim post-petition attorneys’ fees
    2009-11-24

    In a decision that will be of great interest to the creditor community, the US Court of Appeals for the Second Circuit held, on November 5, 2009, that the Bankruptcy Code does not bar an unsecured claim for post-petition attorneys’ fees that was authorized under a valid prepetition contract. The case, Ogle v. Fidelity & Deposit Company of Maryland,1 extends and clarifies the US Supreme Court’s March 2007 decision in the Travelers case,2 which opened the door for such a ruling.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Unsecured debt, Interest, Liquidation, Unsecured creditor, Title 11 of the US Code, Supreme Court of the United States, Second Circuit, Ninth Circuit, United States bankruptcy court
    Authors:
    Brian Trust , Frederick D. Hyman
    Location:
    USA
    Firm:
    Mayer Brown
    Second Circuit permits unsecured claim for post-petition attorneys’ fees authorized under a valid pre-petition contract
    2009-12-09

    In a recent holding that a creditor may collect, on an unsecured basis, post-petition attorneys’ fees under an otherwise enforceable pre-petition contract, the Second Circuit Court of Appeals followed a similar ruling by the Ninth Circuit earlier this year, adding to a conflict among the circuits on this issue.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Surety, Debtor, Unsecured debt, Interest, Liquidation, Unsecured creditor, Title 11 of the US Code, Eighth Circuit, Supreme Court of the United States, Second Circuit, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Recent noteworthy decisions fall 2009
    2009-12-07
    1. In re TOUSA, Inc., 408 B.R. 913 (Bankr. S.D. Fla. 2009). Prepetition lenders could not assert third-party claims against the debtors for breach of contract based on loan document representation that debtor borrowers, on a consolidated basis, would be solvent after the financing transaction because such claims did not depend on the outcome of the fraudulent transfer claims of the creditors, which asserted that individual debtor subsidiaries were insolvent.
    2. In re Metaldyne Corp., 409 B.R. 671 (Bankr. S.D.N.Y. 2009).
    Filed under:
    USA, Insolvency & Restructuring, Litigation, Morgan, Lewis & Bockius LLP, Credit (finance), Debtor, Collateral (finance), Breach of contract, Federal Reporter, Refinancing, Forum selection clause, Federal Deposit Insurance Corporation (USA), Citigroup, Emergency Economic Stabilization Act 2008 (USA), Second Circuit, Ninth Circuit, Seventh Circuit, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Morgan, Lewis & Bockius LLP
    Second Circuit joins chorus on inapplicability of Bankruptcy Code Section 502(d) to administrative claims
    2009-12-17

    The Second Circuit Court of Appeals recently issued its decision on a question of first impression before the court: whether section 502(d) of the Bankruptcy Code applies to administrative claims arising under section 503(b) of the Bankruptcy Code. See, generally, ASM Capital, L.P. v. Ames Dept. Stores, Inc. (In re Ames Dept. Stores, Inc.), 582 F.3d 422 (2d Cir. 2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Federal Reporter, Default judgment, Liquidation, Conveyancing, Title 11 of the US Code, Trustee, Second Circuit, Ninth Circuit, United States bankruptcy court, Fifth Circuit
    Authors:
    Nicholas J. Brannick
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Electronic filings and actual notice
    2010-02-01

    On January 28th, the Ninth Circuit addressed the issue of whether a Chapter 7 bankruptcy trustee had actual notice of an unrecorded refinanced mortgage when the bankruptcy petition was electronically filed simultaneously with schedules listing the mortgage as a secured debt. The Court held that the trustee lacked actual notice. The Court found that the filing of the petition was a separate event from the filing of the schedules. The trustee was therefore a bona fide purchaser for value without notice and under state bona fide purchaser law, the trustee could avoid the unrecorded mortgage.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Debt, Mortgage loan, Deed, Good faith, Refinancing, Conveyancing, Secured loan, Trustee, Ninth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Equitable subordination of a creditor's secured claim when such secured creditor is, itself, in bankruptcy
    2010-02-18

    In a majority opinion dated December 15, 2009, the Ninth Circuit Bankruptcy Appellate Panel held that a chapter 11 debtor may not equitably subordinate a creditor's claim and transfer the lien securing that claim, when such creditor is, itself, in bankruptcy, before first obtaining relief from the automatic stay under section 362 of the U.S. Bankruptcy Code in such creditor's bankruptcy case. Lehman Commercial Paper v. Palmdale Hills Prop. (In re Palmdale Hills Prop., LLC), 2009 Bankr. LEXIS 4294 (B.A.P. 9th Cir. Dec. 15, 2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Debtor, Fraud, Debt, Conveyancing, Secured creditor, Prejudice, Majority opinion, Lehman Brothers, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Robert Sahyan
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Bankruptcy Appellate Panel affirms relief from automatic stay for payment of director's defense costs
    2010-02-25

    The Bankruptcy Appellate Panel of the Ninth Circuit has affirmed the bankruptcy court’s grant of a motion by a debtor’s sole director to modify the automatic stay to allow payment of defense costs under the A-side coverage of the debtor’s directors and officers liability insurance policy. In re MILA, Inc., 2010 WL 455328 (B.A.P. 9th Cir. Jan. 29, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Costs in English law, Debtor, Liability insurance, Capital punishment, Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Wiley Rein LLP

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