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    Assignments of Rent - - A Dangerous Intersection of State and Federal Law
    2017-06-05

    A recent decision by the Sixth Circuit Court of Appeals may have muddied the question of the impact of collateral rent assignments on a debtor’s ability to re-organize under chapter 11.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Squire Patton Boggs, Debtor, Leasehold estate, Foreclosure, Default (finance), United States bankruptcy court, Sixth Circuit
    Authors:
    G. Christopher Meyer
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Ninth Circuit Limits Mortgagee to Value of the Property as Low Income Housing
    2017-06-01

    In First Southern National Bank v. Sunnyslope Housing Limited Partnership, No. 12-17241 (9th Cir. May 26, 2017), the Ninth Circuit Court of Appeals, in an en banc decision, held that, for purposes of confirmation of a plan of reorganization over a mortgagee’s objection, the value of the mortgagee’s secured claim was the value of the property as low income housing not the value the mortgagee would have received on foreclosure free of the low income housing restrictions.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Buchanan Ingersoll & Rooney PC, Mortgage loan, Foreclosure, Affordable housing, Ninth Circuit, United States bankruptcy court
    Authors:
    William H. Schorling
    Location:
    USA
    Firm:
    Buchanan Ingersoll & Rooney PC
    Sixth Circuit Upholds Assignment of Rents to Secured Lender
    2017-05-23

    “[T]he debtor … did not retain sufficient rights in the assigned rents under Michigan law for those rents to be included in the bankruptcy estate,” held the U.S. Court of Appeals for the Sixth Circuit on May 2, 2017. In re Town Center Flats LLC, 201 U.S. App. LEXIS 7733, *2 (6th Cir. May 2, 2017). Relying on Michigan law and the language of the relevant documents, the court reversed the bankruptcy court’s holding that gave the Chapter 11 debtor access to the assigned rents as operating funds during its reorganization.

    Relevance

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Real Estate, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Collateral (finance), Mortgage loan, Foreclosure, Default (finance), Sixth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    New Wave of Lehman Litigation Appears to Be Imminent
    2017-05-23

    Thousands of mortgage lenders across the country either recently received, or will soon be receiving, this document from Lehman Brothers Holdings, Inc. (LBHI).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Securitization & Structured Finance, Bilzin Sumberg, Mortgage-backed security, Lehman Brothers
    Authors:
    Philip R. Stein
    Location:
    USA
    Firm:
    Bilzin Sumberg
    Section 1111(b) Election Not Available When Collateral Is Sold Post Petition
    2017-05-24

    Under section 1111(b) of the U.S. Bankruptcy Code, a non-recourse secured creditor that holds “a claim secured by a lien on property of the estate” is granted recourse against the bankruptcy estate upon the filing of a chapter 11 bankruptcy petition. But what happens when there has been a post-petition foreclosure on such property, so that it is no longer part of the estate and the liens have been extinguished? Can the creditor still use section 1111(b) to assert a claim against the bankruptcy estate? The Ninth Circuit answered no in Matsan v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, Secured creditor
    Location:
    USA
    Firm:
    Dechert LLP
    MD Ala. Holds Servicer Did Not Violate Discharge By Sending Periodic Statements, NOI, Delinquency Notices, Hazard Insurance Notices
    2017-05-18

    The U.S. Bankruptcy Court for the Middle District of Alabama recently held that a mortgage servicer did not violate the discharge injunction in 11 U.S.C. § 524 by sending the discharged borrowers monthly mortgage statements, delinquency notices, notices concerning hazard insurance, and a notice of intent to foreclose.

    Moreover, because the borrowers based their claims for violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., on the violation of the discharge injunction, the Court also dismissed their FDCPA claims with prejudice.

    Filed under:
    USA, Alabama, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Bankruptcy discharge, Fair Debt Collection Practices Act 1977 (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    9th Cir. Applies Anti-Deficiency Protections to Debtors’ Bankruptcy Estate Where Property of Estate is Sold in Non-Judicial Foreclosure
    2017-05-12

    The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel’s determination that a creditor’s pre-bankruptcy, non-recourse lien on two debtors’ real property is extinguished following a non-judicial foreclosure sale.

    A copy of the opinion in In re: Salamon is available at: Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Foreclosure, Ninth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Sixth Circuit Court of Appeals Holds Properly Perfected Assignment of Rents Not Property of Bankruptcy Estate
    2017-05-16

    In a significant ruling impacting commercial real estate lenders in Michigan, the Sixth Circuit Court of Appeals has ruled that an absolute assignment of rents that had been fully perfected (by demanding payment from tenants to the lender and related recording) precludes a debtor from asserting that such rents can be used as cash collateral in bankruptcy. The reasoning is that these rents do not constitute property of the bankruptcy estate. As such, the debtor could not proceed with its Chapter 11 case.

    Background

    Filed under:
    USA, Michigan, Banking, Insolvency & Restructuring, Litigation, Real Estate, Foley & Lardner LLP, Bankruptcy, Debtor, Collateral (finance), United States bankruptcy court, Sixth Circuit
    Authors:
    Jill L. Nicholson , Tamar N. Dolcourt , Ann Marie Uetz
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Who Knew? An Absolute Assignment of Rents Can Be Absolute
    2017-05-09

    Sixth Circuit Determines that an Absolute Assignment of Rents Perfected Under Michigan State Law Takes Property out of a Bankruptcy Estate (In Re Town Center Flats, LLC, Case No. 16-1812 — Decided May 2, 2017)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Seyfarth Shaw LLP, Sixth Circuit
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Assigned Rents Not Bankruptcy Estate Property After Assignment is Enforced
    2017-05-05

    On May 2, 2017, the Sixth Circuit Court of Appeals clarified whether a bankruptcy debtor retains any property rights in rents after defaulting on a loan that includes an assignment of rents.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Miller Canfield PLC, Bankruptcy, Sixth Circuit
    Authors:
    Scott R. Lesser , Ronald Spinner
    Location:
    USA
    Firm:
    Miller Canfield PLC

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