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    Seventh Circuit upholds secured creditors' credit bid rights under plan
    2011-07-05

    On June 28, 2011, the U.S. Court of Appeals for the Seventh Circuit held that secured creditors have a statutory right to credit bid1 their debt at an asset sale conducted under a "cramdown" plan. In re River Road Hotel Partners, LLC, ___ F.3d. ___, 2011 WL 2547615 (7th Cir. June 28, 2011).2 The Seventh Circuit's decision creates a split with recent decisions in the Third and Fifth Circuits regarding a lender's ability to credit bid its secured debt. See In re Philadelphia Newspapers, 599 F.3d 298 (3d Cir. 2010); In re Pacific Lumber, Co., 584 F.3d 229 (5th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Credit (finance), Debtor, Collateral (finance), Federal Reporter, Debt, Liquidation, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Third Circuit, Seventh Circuit
    Authors:
    Lawrence V. Gelber , James T. Bentley
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Third Circuit upholds denial of secured creditors’ right to credit bid under reorganization plan
    2010-03-25

    The U.S. Court of Appeals for the Third Circuit held, in a split decision, on March 22, 2010, that secured creditors do not have a statutory right to credit bid1 their debt at an asset sale conducted under a “cramdown” reorganization plan. In re Philadelphia Newspapers, LLC, et al., --- F.3d ----, 2010 WL 1006647 (3d Cir. March 22, 2010) (2-1).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Collateral (finance), Statutory interpretation, Federal Reporter, Limited liability company, Debt, Liability (financial accounting), Fair market value, Secured creditor, Secured loan, United States bankruptcy court, Third Circuit
    Authors:
    Michael L. Cook , Adam C. Harris , Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    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:
    Lawrence V. Gelber , Adam C. Harris , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit reverses equitable subordination of insiders’ secured loan
    2008-06-30

    The U.S. Court of Appeals for the Fifth Circuit reversed a bankruptcy court’s equitable subordination order on June 20, 2008. Wooley v. Faulkner (In re SI Restructuring, Inc.), ____ F.3d __, 2008 WL2469406 (5th Cir. 2008). According to the court, subordination of the insiders’ secured claims was “inappropriate” because the bankruptcy trustee had failed to show that the defendant insiders’ “loans to the debtor harmed either the debtor or the general creditors.” Id., at *1. The court also rejected the trustee’s “deepening insolvency” argument on the facts and as a matter of law.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Surety, Debtor, Unsecured debt, Collateral (finance), Fiduciary, Board of directors, Default (finance), Secured loan, United States bankruptcy court, Fifth Circuit, Trustee
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Supreme Court allows unsecured lender to recover contractual legal fees in bankruptcy case
    2007-03-21

    The Supreme Court unanimously held on March 20, 2007, that an unsecured lender could recover contractbased legal fees “incurred in [post-bankruptcy] litigation” on “issues of bankruptcy law.” Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., __ U.S. __ (March 20, 2007). Op., at 1, 3. In doing so, the court vacated a summary ruling by the Ninth Circuit last year. 167 Fed. Appx. 593 (9th Cir. 2006) (held, “attorney fees… not recoverable in bankruptcy for litigating issues ‘peculiar to federal bankruptcy law.’“), citing In re Fobian, 951 F.2d 1149, 1153 (9th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Surety, Debtor, Unsecured debt, Federal Reporter, Remand (court procedure), Bad faith, Attorney's fee, SCOTUS, Second Circuit, Ninth Circuit, Fourth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Update on Bankruptcy Appellate Practice: Part Two — Appellate Standing
    2022-01-12

    Appeals from bankruptcy court orders continue to play a key role in bankruptcy practice. The relevant sections of the Judicial Code and the Federal Bankruptcy Rules arguably cover all the relevant issues in a straightforward manner. Recent cases, however, show that neither Congress nor the Rules Committees could ever address the myriad issues raised by imaginative lawyers. The appellate courts continue to wrestle with standing, jurisdiction, mootness, excusable neglect, and finality, among other things.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, US Congress
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Court of Appeals Preserves Lenders’ Tort Claims Against Debtors’ Insiders
    2020-12-04

    A lender’s state law tort claims against “non-debtor third-parties for tortious interference with a contract” were “not preempted” by “federal bankruptcy law,” held the New York Court of Appeals on Nov. 24, 2020. Sutton 58 Associates LLC v. Pilevsky, 2020 WL 6875979, *1 (N.Y. Ct. Appeals, Nov. 24, 2020) (4-3). In a split opinion, the Court of Appeals reversed the Appellate Division’s dismissal of a lender’s complaint against the debtors’ non-debtor insiders. The lender will still have to prove its case at trial.

    The Asserted Claims

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Third Circuit Clarifies Appeal Process in Settlement and Reorganization Plan Disputes
    2019-09-01

    The Third Circuit recently took a “pragmatic approach” when affirming lower court orders denying a stay of bankruptcy settlement distributions pending appeal. In re S.S. Body Armor I, Inc., 2019 WL 2588533 (3d Cir. June 25, 2019). After holding that the district court’s “stay denial order” was “final” for jurisdictional purposes, it also confirmed “the applicable standard of review” on motions for stays pending appeals.

    Relevance

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Third Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit Rejects Use of Involuntary Bankruptcy Petition as Collection Tool
    2018-08-22

    A bankruptcy court properly dismissed a creditor’s involuntary bankruptcy petition “for cause” when it “would serve none of the Bankruptcy Code’s goals or purposes . . . and [when] the sole [petitioning] creditor is not substantially prejudiced by remedies available under state law,” held the U.S. Court of Appeals for the Second Circuit on Aug. 14, 2018. In re Murray, 2018 WL 3848316, *7 (2d Cir. Aug. 14, 2018). In its view, the bankruptcy court “declined to serve as a ‘rented battle field’ or ‘collection agency’” for a single creditor. Id., at *7.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Second Circuit, Seventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit Rejects Breach of Fiduciary Duty and Fraudulent Transfer Claims
    2017-11-27

    “Officers and directors of [an operating corporate debtor] have fiduciary duties to the corporation — not the corporation’s creditors” under Texas law, held the U.S. Court of Appeals for the Fifth Circuit on Oct. 27, 2017. In re ATP Oil & Gas Corp., 2017 U.S. App. LEXIS 21337, *7 (5th Cir. Oct. 27, 2017). In affirming the district court’s dismissal of a Chapter 7 bankruptcy trustee’s complaint, the Fifth Circuit rejected the trustee’s breach of fiduciary claims against officers and directors for permitting “the payment of . . .

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Fiduciary, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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