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    Ninth Circuit splits from Fourth Circuit on involuntary bankruptcy standard: In re Marciano
    2013-09-30

    A judgment creditor who is considering filing an involuntary bankruptcy petition against a debtor should consult venue-specific controlling law if the debtor has appealed the judgment. Depending on the jurisdiction, the debtor’s appeal may or may not be a factor for the bankruptcy court to consider in determining whether the creditor’s claim meets the involuntary petition requirements of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Ninth Circuit, United States bankruptcy court, California Supreme Court, Fourth Circuit
    Location:
    USA
    Firm:
    Jones Day
    Focus on feasibility
    2007-05-31

    One of the most significant changes to chapter 11 of the Bankruptcy Code in the 2005 amendments was the absolute limit placed on extensions of the exclusivity periods. Courts no longer have the discretion to extend a debtor’s exclusive periods to file and solicit a plan beyond 18 months and 20 months, respectively, after the petition date. Although the legislative history contains no explanation for why this change was made, Congress presumably intended to accelerate the reorganization process or facilitate the prospects for competing plans in large, complex cases.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Debtor, Hedge funds, Legal burden of proof, Liquidation, Investment funds, SCOTUS, Ninth Circuit
    Location:
    USA
    Firm:
    Jones Day
    A cautionary tale for insider lenders: Ninth Circuit endorses recharacterization remedy in bankruptcy
    2013-07-31

    The ability of a bankruptcy court to reorder the priority of claims or interests by means of equitable subordination or recharacterization of debt as equity is generally recognized. Even so, the Bankruptcy Code itself expressly authorizes only the former of these two remedies. Although common law uniformly acknowledges the power of a court to recast a claim asserted by a creditor as an equity interest in an appropriate case, the Bankruptcy Code is silent upon the availability of the remedy in a bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Driving the wedge deeper: Fifth and Ninth Circuits unite in refusing to condemn “artificial impairment” in cramdown chapter 11 plans
    2013-06-01

    One of the prerequisites to confirmation of a cramdown (nonconsensual) chapter 11 plan is that at least one “impaired” class of creditors must vote in favor of the plan. This requirement reflects the basic principle that a plan may not be imposed on a dissident body of stakeholders of which no class has given approval. However, it is sometimes an invitation to creative machinations designed to muster the requisite votes for confirmation of the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Shareholder, Ninth Circuit, Fifth Circuit
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Ninth Circuit Declines To Decide When Contempt Sanction Becomes Punishment
    2018-07-25

    Bankruptcy courts have authority to hold in civil contempt one who refuses to comply with a bankruptcy court order, including incarceration and/or daily fines until the offender complies.[1] But when does civil contempt[2] cross into criminal contempt, which is punitive and outside

    Filed under:
    USA, Insolvency & Restructuring, Bryan Cave Leighton Paisner (Bryan Cave), Ninth Circuit, US District Court for Central District of California
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Clear Error They Say! Supreme Court Opines On Standard Of Review For Determining Non-Statutory Insider Status
    2018-03-18

    Last April, we updated you that the Supreme Court had granted review of In re The Village at Lakeridge, LLC, 814 F.3d 993 (9th Cir. 2016). Our most recent post is here.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, SCOTUS, Ninth Circuit, United States bankruptcy court
    Authors:
    Jay Krystinik
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Supreme Court Grants Cert on, of all Things, the Standard of Review for Determining Non-Statutory Insider Status
    2017-04-26

    Last December, we updated you that the Supreme Court was considering whether to grant review of In re The Village at Lakeridge, LLC, 814 F.3d 993 (9th Cir. 2016). Our original post is here. On March 27, 2017, the Supreme Court granted review of Village at Lakeridge, but only as to one question presented, the most boring one in our view.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), SCOTUS, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Jay Krystinik
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    What Do You Mean My Claim Is Capped? Ninth Circuit Ruling Further Clarifies Types Of Damages Excluded From A Landlord’s Claim In Bankruptcy
    2017-03-02

    The Ninth Circuit Court of Appeals recently provided landlords dealing with a rejected lease with further guidance on the size and basis of their claims against a tenant’s bankruptcy estate. Kupfer v. Salma (In re Kupfer), No. 14-16697 (9th Cir. Dec. 29, 2016). The Ninth Circuit held that the statutory cap – 11 U.S.C.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Landlord, Leasehold estate, Ninth Circuit
    Authors:
    Natalie Daghbandan
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Are Those Taxes Owing On Your Late-Filed Tax Return Dischargeable? Maybe, But You Better Be In The Right Circuit
    2016-07-25

    Individual debtors with old tax debts relating to late-filed tax returns may be surprised to find that those tax debts may not be dischargeable under section 523(a) of the Bankruptcy Code due to the lateness of the tax filing. There is a current Circuit split regarding whether a late tax filing constitutes a “return” at all, which is critical to the dischargeability inquiry. The Ninth Circuit weighed in last week in In re Smith, 2016 WL 3749156 (9th Cir. July 13, 2016), further cementing the split.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Bryan Cave Leighton Paisner (Bryan Cave), Debtor, Debt, Tax return (United States), Title 11 of the US Code, Internal Revenue Service (USA), Ninth Circuit
    Authors:
    Justin A. Sabin , Bryce A. Suzuki
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    The absolute priority rule: an endangered species in individual Chapter 11 cases?
    2012-04-09

    The absolute priority rule of Section 1129(b) of the Bankruptcy Code is a fundamental creditor protection in a Chapter 11 bankruptcy case. In general terms, the rule provides that if a class of unsecured creditors rejects a debtor’s reorganization plan and is not paid in full, junior creditors and equity interestholders may not receive or retain any property under the plan. The rule thus implements the general state-law principle that creditors are entitled to payment before shareholders, unless creditors agree to a different result.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Shareholder, Debtor, Unsecured debt, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    Robert J. Miller , Brian C. Walsh , Gwendolyn Godfrey
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)

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