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    Fifth Circuit protects secured creditor and holds that receipt of notice is not participation required to extinguish lien through plan confirmation
    2013-08-20

    It should be common knowledge that a secured creditor, having received proper notice in a Chapter 11 bankruptcy case, faces the risk that its lien will be extinguished if it fails to object to a reorganization plan that does not specifically preserve the lien. Apparently, however, not all secured lenders realize this risk, and some fall prey to a trap for the unwary in §1141(c) of the Bankruptcy Code by failing to protect their liens and place their collateral at risk.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, Debtor, Secured creditor, United States bankruptcy court, Fifth Circuit, Seventh Circuit
    Authors:
    Benjamin C. Ackerly , Tyler P. Brown , Tara L. Elgie , Jarrett L. Hale , Jason W. Harbour , Gregory G. Hesse
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    One method to protect your secured position in bankruptcy - don't participate
    2013-08-26
    In a recent decision, the Fifth Circuit Court of Appeals addressed the impact of a confirmed plan of reorganization upon a secured creditor that does not participate in the case. In Acceptance Loan Company, Inc. v. S. White Transportation, Inc. (In re S. White Transportation, Inc.), No. 12-60648, 2013 WL 3983343 (5th Cir. Aug.
    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reinhart Boerner Van Deuren SC, Bankruptcy, Secured creditor
    Authors:
    Peter C. Blain
    Location:
    USA
    Firm:
    Reinhart Boerner Van Deuren SC
    Fifth Circuit protects secured lender who bypasses Chapter 11 reorganization plan
    2013-08-12

    The U.S. Court of Appeals for the Fifth Circuit held on August 5 that a secured lender’s disputed “lien on [the debtor’s] principal asset survived . . . confirmation of [the debtor’s] Chapter 11 . . . reorganization plan” because the lender had not participated in the bankruptcy case.S. White Transportation, Inc. v. Acceptance Loan Co., 2013 WL 3983343, *1,*3 (5th Cir. Aug. 5, 2013). Had the lender participated in the case, the court reasoned, its lien might have been avoided.Id., at *1, citingIn re Ahern Enterprises, Inc., 507 F.3d 817, 822 (5th Cir.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Secured creditor, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Cramdown and valuation issues for secured creditors
    2013-07-30

    Secured creditors need to be aware of recent bankruptcy rulings that affect their rights and interests. These rulings have tested the boundaries of key concepts affecting the ability to "cramdown" and involuntarily restructure a secured creditor’s rights and the valuation of collateral. Secured creditors must therefore be mindful of these developments and risks in guiding their negotiating and litigation strategy against a cramdown threat.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Arnold & Porter, Bankruptcy, Debtor, Collateral (finance), Secured creditor, Unsecured creditor, Valuation (finance), United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Benjamin Mintz , Jonathan Agudelo
    Location:
    USA
    Firm:
    Arnold & Porter
    Debtor had legitimate business reason to separately classify unsecured claims
    2013-06-12

    In re Burcam Capital II, LLC, Case No. 12-04729-8-JRL (Bankr. E.D.N.C., Feb. 15, 2013)

    CASE SNAPSHOT

    Filed under:
    USA, North Carolina, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Unsecured debt, Secured creditor, Deed of trust (real estate)
    Authors:
    Alison Wickizer Toepp
    Location:
    USA
    Firm:
    Reed Smith LLP
    Tenth Circuit joins Fourth Circuit in holding that absolute priority rule applies to individual chapter 11 cases
    2013-06-12

    Dill Oil Company, LLC v. Stephens, No. 11-6309 (10th Cir., Jan. 15, 2013)

    CASE SNAPSHOT

    The Court of Appeals for the Tenth Circuit, in a case of first impression before the court, joined the Fourth Circuit in holding that the absolute priority rule remains applicable in individual chapter 11 cases.

    FACTUAL BACKGROUND

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Unsecured debt, Secured creditor, United States bankruptcy court, Fourth Circuit, Tenth Circuit
    Authors:
    Alison Wickizer Toepp
    Location:
    USA
    Firm:
    Reed Smith LLP
    Financial services update, vol. 8, number 21
    2013-06-03
    In a case that should alarm secured creditors who thought they could lawfully exercise their secured creditor rights to foreclose on collateral, the Second Circuit Court of Appeals upheld sanctions against a secured creditor that did exactly that. In 2006, the State Employees Federal Credit Union ("SEFCU") made a loan to Mr. Weber, secured by Mr. Weber’s pick-up truck (the principles in this case apply equally in the corporate finance world). After Mr. Weber defaulted on the loan in 2009, SEFCU legally repossessed Mr.
    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Debtor, Collateral (finance), Secured creditor
    Authors:
    Susan Berkwitt
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    9th Circuit: finding of common strategy needed for common interest doctrine
    2013-06-05

    In In re Village at Lakeridge, LLC, BAP Nos. 12-1456, 12-1474 (B.A.P. 9th Cir. Apr. 5, 2013), the Bankruptcy Appellate Panel of the Ninth Circuit clarified that, in order to apply the common interest doctrine, a trial court must make a finding that the parties expressly or implicitly agreed to participate in a joint legal strategy. In this case, secured creditor, US Bank, deposed the sole unsecured creditor, Rabkin.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jenner & Block LLP, Interest, Secured creditor, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    David M. Greenwald
    Location:
    USA
    Firm:
    Jenner & Block LLP
    An identifiable risk to collateral property that is used in the marijuana business
    2013-06-05

    The legalization under state law of the marijuana business in Colorado through Amendment 20 (medical marijuana) and Amendment 64 (recreational marijuana) (Amendment 20 and Amendment 64 shall be referred to collectively as the "Colorado Amendments") raises serious issues for banks whose customers or borrowers are involved in the marijuana business in Colorado. The Colorado Amendments do not affect federal law that defines marijuana as a Class 1 controlled substance.

    Filed under:
    USA, Colorado, Insolvency & Restructuring, Litigation, Real Estate, Sherman & Howard LLC, Debtor, Collateral (finance), Cannabis, Controlled substance, Secured creditor, Controlled Substances Act 1971 (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Sherman & Howard LLC
    A.R.S. § 33-814(a) and bankruptcy proofs of claim: to file or not to file…conflicting cases leave creditors with no clear answer
    2013-05-20

    Under Arizona law, does a secured creditor need to file a deficiency action within 90 days after a trustee’s sale to preserve the unsecured portion of its claim in a bankruptcy case? Or is filing (or amending) a proof of claim sufficient? Two recent cases out of Arizona provide conflicting answers.

    Filed under:
    USA, Arizona, Insolvency & Restructuring, Litigation, Snell & Wilmer LLP, Bankruptcy, Unsecured debt, Injunction, Secured creditor
    Authors:
    Benjamin W. Reeves
    Location:
    USA
    Firm:
    Snell & Wilmer LLP

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