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    Second Circuit Affirms Denial of Arbitration in Bankruptcy Priority Fight
    2016-11-02

    “[T]he bankruptcy court did not abuse its discretion in denying [the debtor’s former employees’] motion to compel arbitration” when the dispute turned on the relative priority of their claims, held the U.S. Court of Appeals for the Second Circuit on Oct. 6, 2016. In re Lehman Bros. Holdings Inc., 2016 WL 5853265, *2 (2d Cir. Oct. 6, 2016). The Securities Investor Protection Act (“SIPA”) trustee in the liquidation of Lehman Brothers Inc.

    Filed under:
    USA, Arbitration & ADR, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Second Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Distressed energy: midstream agreements — 10 questions after sabine’s ‘unspeakable quagmire’
    2016-03-10

    While a recent federal bankruptcy court ruling provides some clarity as to how midstream gathering agreements may be treated in Chapter 11 cases involving oil and gas exploration and production companies (“E&Ps”), there are still many questions that remain. This Alert analyzes and answers 10 important questions raised by the In re Sabine Oil & Gas Corporation decision of March 8, 2016.[1]

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, United States bankruptcy court
    Authors:
    Lawrence V. Gelber , Parker J. Milender
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Divided Third Circuit partially stays sale of casino pending commercial tenant’s appeal
    2015-10-13

    A divided panel of the U.S. Court of Appeals for the Third Circuit stayed the part of a bankruptcy court’s sale order that would have “stripped” a commercial tenant’s lease from the casino property being sold to a third party. In re Revel AC, Inc., 2015 WL 5711358 (3d Cir. Sept. 30, 2015) (2-1).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Schulte Roth & Zabel LLP, Debtor, Casino, United States bankruptcy court, Third Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    U.S. Supreme Court preserves bankruptcy court power to hear disputes
    2015-05-28

    Bankruptcy courts may hear state law disputes “when the parties knowingly and voluntarily consent,” held the U.S. Supreme Court on May 26, 2015. Wellness Int’l Network Ltd. v. Sharif, 2015 WL 2456619, at *3 (May 26, 2015). That consent, moreover, need not be express, reasoned the Court. Id. at *9 (“Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express.”). Reversing the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, United States bankruptcy court
    Authors:
    Michael L. Cook , Lawrence V. Gelber , David M. Hillman
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit vacates dip financing order for lack of good faith
    2014-09-15

    The U.S. Court of Appeals for the Fifth Circuit, on Sept. 3, 2014, vacated bankruptcy court and district court Chapter 11 debtor-in-possession (“DIP”) financing orders due to: (1) the lender’s lack of good faith in relying on a third party’s shares of stock as collateral; and (2) the bankruptcy court’s lack of subject matter jurisdiction. In re TMT Procurement Corp., 2014 WL 4364894 (5th Cir. Sept. 3, 2014).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Good faith, Subject-matter jurisdiction, United States bankruptcy court, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit holds mere acceleration does not trigger prepayment premium
    2014-02-06

    The U.S. Court of Appeals for the Fifth Circuit held on Jan. 27, 2014 that a lender’s acceleration due to a borrower’s payment default did not trigger a prepayment premium. In re Denver Merchandise Mart, Inc., 2014 WL 291920, *1 (5th Cir. Jan. 27, 2014) (“Denver Merchandise”). Affirming the lower courts’ application of state law, the court held that “the plain language of the contract does not require the payment of the Prepayment Consideration in the event of mere acceleration.” Id. at *5.  

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    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Interest, Liquidated damages, Default (finance), Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Eighth Circuit BAP affirms lender’s loss of possessory lien
    2013-04-04

    The U.S. Bankruptcy Appellate Panel (“BAP”) for the Eighth Circuit held on March 25, 2013, that a lender “lost its possessory lien when it turned the Debtor’s account funds over to the Trustee without first seeking adequate protection.” In re WEB2B Payment Solutions, Inc., _____ B.R. 2013 _____, 2013WL 1188041, *5 (8th Cir. B.A.P. March 25, 2013) (emphasis added).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Eighth Circuit, Bankruptcy Appellate Panel
    Authors:
    David M. Hillman , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Eleventh Circuit reverses TOUSA district court decision and holds lenders liable for fraudulent transfer
    2012-05-21

    The United States Court of Appeals for the Eleventh Circuit, on May 15, 2012, reversed a district court's February 2011 decision that lenders were not liable on a fraudulent transfer claim. In re TOUSA, Inc., ___ F.3d ___, 2012 U.S. App. LEXIS 9796 (11th Cir. 5/15/12).[1] It rejected the district court's finding that corporate subsidiaries had received "reasonably equivalent value" when they encumbered their assets to secure a loan made to them and their corporate parent.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, United States bankruptcy court, Eleventh Circuit
    Authors:
    Michael L. Cook , David M. Hillman
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    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

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