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    Creditor carries burden of proof in claims dispute
    2007-02-19

    In Litton Loan Servicing, LP v. Garvida, No. 04-17846 (9th Cir. BAP July 31, 2006), the Bankruptcy Appellate Panel of the U.S. Court of Appeals for Ninth Circuit addressed two independent but related questions: (1) what procedure is necessary to object to a properly filed proof of claim, and (2) who bears the burden of proof, and the correlative risk of nonpersuasion, with regard to a disputed claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Interest, Debt, Mortgage loan, Foreclosure, Legal burden of proof, Refinancing, Prima facie, Accrued interest, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Reversal of Enron ruling on claims transfers - reevaluating the risks of equitable subordination
    2007-10-01

    In a decision in In re Enron Corp., et al., 2007 U.S. Dist. LEXIS 63129, No. 05-01025 (S.D.N.Y. August 27, 2007), the Honorable Shira Scheindlin, United States District Judge for the Southern District of New York, held that the sale of a claim that is subject to equitable subordination under section 510(c) or disallowance under section 502(d) of the Bankruptcy Code may insulate the claim from subordination and disallowance when asserted against the buyer of the claim. At first blush the decision may be, and has been, read by some to offer relief and clarity to distressed debt investors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fried Frank Harris Shriver & Jacobson LLP, Punitive damages, Good faith, Remand (court procedure), Distressed securities, Prima facie, Deutsche Bank, Citibank, Enron, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    Two circuits examine chapter 11’s good-faith filing requirement
    2008-02-01

    Two circuit courts of appeal recently addressed whether a company filing chapter 11 for the sole purpose of retaining vital leases did so in good faith. In In re Capitol Food of Fields Corner, the First Circuit, in a matter of first impression on the issue of chapter 11’s implied good-faith filing requirement, declined to address the broader question, concluding that even if there is a good-faith filing requirement, a prima facie showing of bad faith could not be met because the debtor articulated several legitimate reasons for the necessity of reorganizing under chapter 11.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Leasehold estate, Liquidation, Good faith, Bad faith, Prima facie, Title 11 of the US Code, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Jones Day
    Insurance premium financiers beware: once again timing is everything
    2008-09-09

    In In re Falcon Products, Inc., 381 B.R. 543 (8th Cir. BAP, 2008), the bankruptcy appellate panel (BAP) for the Eighth Circuit reversed a decision by the bankruptcy court for the District of Missouri, and held that when applying the hypothetical liquidation test to determine whether a secured creditor received potentially preferential payments, the collateral must be valued as of the petition date and not as of the payment transfer date.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bankruptcy, Debtor, Collateral (finance), Debt, Liquidation, Remand (court procedure), Secured creditor, Prima facie, US Code, Title 11 of the US Code, Eighth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Locke Lord LLP
    Interracial marriage supports Title VII association claim
    2008-12-10

    In a case of first impression, the United States Court of Appeals for the Second Circuit recently held that antidiscrimination laws may be violated when a white employee is fired for having a black spouse. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), the Second Circuit vacated and remanded a federal district court’s grant of summary judgment in favor of Iona College (the “College”), finding that triable issues existed as to whether the College’s decision to terminate its employee, Craig Holcomb, was based at least in part upon a racially discriminatory motive.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Discrimination, Federal Reporter, Vacated judgment, Voluntary association, Legal burden of proof, Marriage, Remand (court procedure), Prima facie, Civil Rights Act 1964 (USA), Second Circuit, Eleventh Circuit, Sixth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    National gas distributors case broadens swap safe harbor, or does it?
    2009-03-13

    On Feb. 11, 2009, the United States Court of Appeals for the Fourth Circuit issued its opinion in Hutson v. E.I. Dupont de Nemours and Co. (In re National Gas Distributors), attempting, in a matter of first impression, to define "commodity forward agreement" for purposes of eligibility for protection under the safe harbor provisions of the Bankruptcy Code. At first blush, this decision appears to provide the additional certainty that participants in the commodities markets require.

    Filed under:
    USA, Derivatives, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Fraud, Natural gas, Safe harbor (law), Swap (finance), Commodity, Remand (court procedure), Commodity market, Prima facie, DuPont, US Code, United States bankruptcy court, Fourth Circuit
    Authors:
    Hugh M. McDonald , Jeffrey H. Koppele
    Location:
    USA
    Firm:
    Dentons
    Bankruptcy court denies lenders’ motions to dismiss Chapter 11 cases of SPE debtors
    2009-08-20

    On April 16, 2009 and April 22, 2009, General Growth Properties, Inc. (“GGP”) and certain of its subsidiaries (the “Debtors”), including many subsidiaries structured as special purpose entities (the “SPE Debtors”), filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York (the “Court”).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Shareholder, Debtor, Collateral (finance), Fiduciary, Consideration, Good faith, Default (finance), Derivative suit, Prima facie, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court
    Authors:
    Jeffrey A. Lenobel , Lawrence V. Gelber , Adam C. Harris , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Proofs of claim and objections - tricks of the trade revisited
    2009-11-20

    Filing a successful proof of claim is the key to unlocking a creditor's right to recover against a debtor in bankruptcy. Only in limited circumstances may a creditor recover against the debtor's estate without properly filing a proof of claim. This article addresses the various stages of filing, attacking and defending a proof of claim.

    Filed under:
    USA, Insolvency & Restructuring, Wiley Rein LLP, Wage, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Legal burden of proof, Prima facie, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Decision in DBSI Inc., reminds us that district courts have personal jurisdiction throughout the United States
    2011-07-06

    Summary

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Fraud, Personal jurisdiction, Legal burden of proof, Liquidation, Prima facie, US Congress, Trustee, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. John Bird
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Two circuits examine chapter 11’s good-faith filing requirement
    2008-02-01

    Two circuit courts of appeal recently addressed whether a company filing chapter 11 for the sole purpose of retaining vital leases did so in good faith. In In re Capitol Food of Fields Corner, the First Circuit, in a matter of first impression on the issue of chapter 11’s implied good-faith filing requirement, declined to address the broader question, concluding that even if there is a good-faith filing requirement, a prima facie showing of bad faith could not be met because the debtor articulated several legitimate reasons for the necessity of reorganizing under chapter 11.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Leasehold estate, Liquidation, Good faith, Bad faith, Prima facie, Title 11 of the US Code, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Jones Day

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