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    Landlord avoids Bankruptcy Code's limitation on lease termination damages
    2007-11-14

    The Bankruptcy Code limits the amount a landlord may recover from a bankrupt tenant for damages caused by the termination of a lease of real property. But what if the tenant trashes the landlord's property before turning over the premises? Does the damage limitation apply to the landlord's claim for the cost of cleaning up the mess?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, White & Case LLP, Bankruptcy, Collateral (finance), Breach of contract, Landlord, Leasehold estate, Statute of limitations, Remand (court procedure), Causation (law), Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case LLP
    All lessor damages under real property leases, including damages related to maintenance and repair obligations, may be capped under Bankruptcy Code Section 502(b)(6)
    2007-07-27

    In re Foamex Int’l, Inc., et al.,1 the United States Bankruptcy Court for the District of Delaware held that the damage cap contained in section 502(b)(6) of the Bankruptcy Code applies not only to rental payments, but also to damages from the breach of any lease covenants, including maintenance and repair obligations. In doing so, the Court reduced a specific landlord’s claim and recovery by more than $700,000 and established precedent that could diminish the claims of landlords in other cases pending and filed in Delaware.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, White & Case LLP, Unsecured debt, Breach of contract, Landlord, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    Second Department Finds Commercial Tenants Can Waive Their Right to a Yellowstone Injunction
    2018-03-06

    On January 31, 2018, the Appellate Division, Second Department affirmed,[1] in a 3-1 decision, the Kings County Supreme Court Commercial Division’s decision, denying 159 MP Corp. and 240 Bedford Ave Realty Holding Corp.’s (collectively the “Tenants”) motion for a Yellowstone injunction.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    One and Done. Cramdown Requirement for an Impaired Assenting Class Applies on a Per-Plan, Not a Per-Debtor, Basis.
    2018-02-09

    Confirmation of a Chapter 11 plan of reorganization generally requires the consent of each impaired class of creditors.[1] But, upon satisfaction of additional statutory requirements, a plan proponent can obtain confirmation of a “cramdown” plan over the dissent of one or more classes of creditors as long as “at least one class of claims that is impaired under the plan has accepted th

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Dispute Evolution: A bona fide dispute regarding claim amount may disqualify creditor from maintaining an involuntary case.
    2018-01-03

    Section 303(b)(1) of the Bankruptcy Code generally requires three petitioning creditors to join an involuntary petition, each of which must hold claims against the debtor that are not contingent as to liability and are not the subject of a bona fide dispute as to liability or amount.[1] The Bankruptcy Code does not define the term “bona fide dispute,” which has generated my

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    The Best Laid Plans: How a Proposed Sale of NYC Real Estate Under Section 363 of the Bankruptcy Code Went Awry
    2020-10-26

    There are several ways in which property owners can advantageously use the Bankruptcy Code to effectuate strategic dispositions of assets. But the bankruptcy process can be fraught with uncertainty that can upend the best laid plans. The matter of In re Wansdown Properties Corp. N.V., No. 19-13223 (SMB), 2020 WL 5887542 (Bankr. S.D.N.Y. Oct. 5, 2020) provides an instructive and cautionary example.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, Title 11 of the US Code
    Authors:
    Lance Kodish , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    District Court Rules on Property of the Debtor Requirement for Fraudulent Transfer Claims
    2019-09-20

    Section 548 of the Bankruptcy Code enables trustees to avoid certain pre-bankruptcy transfers of “an interest of the debtor in property,” where the transfer was intended to defraud creditors or where the transfer was made while the debtor was insolvent and was not for reasonably equivalent value. 11 U.S.C. § 548(a). Section 544 of the Bankruptcy Code enables trustees to avoid a transfer of “property of the debtor” where a creditor of the debtor would have such a right under state law. 11 U.S.C. § 544(a).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, Debtor, Title 11 of the US Code
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    “Free and Clear” Means You’re out of Here?
    2018-12-18

    Section 365(h) of the Bankruptcy Code provides considerable protection to a tenant in the event of a bankruptcy filing by its landlord.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, Ninth Circuit
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Arbitration Not Waived in Lawsuit Pending for Two Years
    2018-11-20

    Defendants in a lawsuit didn’t waive their right to arbitrate even after moving to dismiss and answering a complaint, a court held last week. Arbitration wasn’t waived because the defendants hadn’t filed affirmative defenses or counterclaims and had taken no discovery. Trevino v. Select Portfolio Servicing, Inc. (In re Jose Sr. Trevino), Adv. Pro. No. 16-7024, 2018 Bankr. LEXIS 3605 (Bankr. S.D. Tex. Nov. 14, 2018).

    Filed under:
    USA, Arbitration & ADR, Banking, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, Injunction, Breach of contract, Arbitration clause, Waiver, Abuse of process, Testimony, Motion to compel, Prejudice, Federal Arbitration Act 1926 (USA), United States bankruptcy court
    Authors:
    Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    The Assignment of Leases in Bankruptcy Free of Prohibitions, Restrictions and Conditions
    2018-08-01

    In the era that preceded the Bankruptcy Reform Act of 1978 and its enactment of the Bankruptcy Code, bankruptcy estates often lost the value of leases and other contracts that could have been realized for creditors by use or sale as a result of termination provisions (either discretionary or ipso facto), limitations or outright prohibitions on assignment, and counterparty self-help.[1] The Code sou

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Patterson Belknap Webb & Tyler LLP, United States bankruptcy court, Third Circuit
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP

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