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    Landlord victory as CVA fails to release guarantee
    2010-11-05

    The High Court has struck down a company voluntary arrangement on the ground that it unfairly prejudiced a landlord who was to lose the benefit of a guarantee given by the tenant’s parent company. The judge said it was “unreasonable and unfair in principle” to require the landlord to give up the guarantee and there was “no sufficient justification” for requiring the landlord to accept a sum of money in lieu.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, Retail, Surety, Landlord, Leasehold estate, Electricity, Liquidation, Prejudice, Parent company, High Court of Justice, Trustee
    Location:
    United Kingdom
    Firm:
    Dechert LLP
    The 365(h) Effect: Guaranty Survives Rejection of Underlying Agreement
    2021-01-25

    In a recent decision, the Court of Appeals for the Sixth Circuit held that the election of a tenant, under Section 365(h) of the Bankruptcy Code, to remain in possession of real property governed by a rejected lease causes a third-party guaranty on another rejected agreement to remain in effect, to the extent such agreement and the lease are part of an integrated transaction.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, Sixth Circuit
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    "Bankruptcy Remote" Special Purpose Entities in Commercial Mortgage Lending: Characteristics, Enforcement and Limitations
    2020-10-15

    Part I -- Introduction

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, Corporate governance, Coronavirus
    Location:
    USA
    Firm:
    Dechert LLP
    “Nobody Fell Off the Turnip Truck Yesterday”: What’s at Stake for Commercial Real Estate Lenders in Sutton 58?
    2019-05-31

    Sutton 58 Associates LLC v. Pilevsky et al., is a New York case which gets to the heart of the enforceability of classic single-purpose entity restrictions in commercial real estate lending. At issue is how far a third-party may go to cause a violation of a borrower’s SPE covenants, and whether those covenants are enforceable at all.

    A Defaulted Construction Loan and Frustrated Attempts to Foreclose:

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, United States bankruptcy court, New York Supreme Court
    Location:
    USA
    Firm:
    Dechert LLP
    Not Caring about (Profit) Sharing: Third Circuit Invalidates Profit-Sharing Clause on Anti-Assignment Grounds
    2019-01-22

    Can a profit-sharing provision in a commercial lease survive assumption and assignment by a debtor? Analyzing such a provision, the Third Circuit answered “no,” finding the provision to constitute an unenforceable anti-assignment provision. Haggen Holdings, LLC v. Antone Corp, 739 Fed. Appx. 153 (2018).

    Legal and Factual Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    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
    A Tale of Two Fishers: Unsettling Ohio’s ‘Well-Settled Law’ on the Proper Statute of Limitations for Mortgage Foreclosure Actions
    2018-11-27
    • A bankruptcy court in Ohio recently applied the incorrect statute of limitations in a mortgage foreclosure action.
    • Ohio’s statute of limitations jurisprudence has evolved from an accepted legal proposition derived from one opinion to supposedly well-settled law stating the complete opposite in another opinion.
    • Federal courts interpreting Ohio law must apply the correct statute of limitations to mortgage foreclosure actions.

    In the bankruptcy case of In re Fisher, 584 B.R. 185, 199–200 (N.D. Ohio Bankr.

    Filed under:
    USA, Ohio, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure, United States bankruptcy court, Ohio Supreme Court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Illinois App. Court (1st Dist) Holds Subsequent Foreclosure-Related Action Barred by Illinois ‘Single Refiling’ Rule
    2018-01-18

    The Appellate Court of Illinois, First District, recently dismissed a mortgagee’s “breach of mortgage contract” action as an impermissible second refiling following prior voluntary dismissals of a 2011 foreclosure complaint and 2013 action for breach of the promissory note based upon the same note and mortgage.

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Unjust enrichment
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Bankruptcy Panel Holds Foreclosure Deficiency Judgment May Be Avoided
    2017-07-10

    The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court’s ruling to the contrary.

    A copy of the opinion is available at: Link to Opinion. 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Property tax, Mortgage loan, Foreclosure, United States bankruptcy court, Sixth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    SD Fla. Bankr. Rejects Mortgagee’s Attempt to Use Borrower’s Surrender in BK to Resolve Contested Foreclosure
    2016-06-13

    The U.S. Bankruptcy Court for the Southern District of Florida recently denied a creditor’s motion to compel the debtor to surrender mortgaged property and also denied the debtor’s motion to stay the case, holding that a chapter 7 debtor who indicates surrender of real property in his statement of intention is not obligated to surrender that property to the lienholder, whether or not the property is administered by the chapter 7 trustee.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Debtor, Foreclosure, Motion to compel, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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