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    United States Supreme Court to decide critical lien stripping issue
    2014-11-19

    On Monday, November 17, 2014, the United States Supreme Court agreed to decide a critical issue for mortgage lenders and secondary market investors, whether Section 506(d) of the Bankruptcy Code allows a Chapter 7 debtor to “strip off” a junior mortgage lien when the outstanding senior debt exceeds the current value of the senior lien.  Bank of America, N.A. v. Caulkett, No. 13-1421, 2014 WL 2207208 (U.S. Nov. 17, 2014); Bank of America, N.A. v. Toledo-Cardona, No. 14-163, 2014 WL 3965212 (U.S. Nov. 17, 2014). 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Supreme Court of the United States
    Authors:
    Anne V. Dunne
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Bankruptcy: assignment of voting rights
    2014-06-16

    One of the more effective risk-mitigation legal tools used by  senior real estate lenders is the single purpose entity borrower.  Among other things, having a single purpose, bankruptcy  remote borrower makes avoiding the risks of bankruptcy easier.  Even in bankruptcy, if the borrower is truly single purpose, and it  keeps the universe of creditors small, the senior secured lender  will have an easier time defeating any plan of reorganization  proposed by the borrower because it will control all of the  legitimate classes of creditors by virtue of th

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Seyfarth Shaw LLP, Bankruptcy, Debtor, Secured loan
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Recharacterization: the debate
    2014-01-02

    In recent years, bankruptcy courts have come closer to reaching a consensus regarding their ability to recharacterize debt into equity. Yet, beneath this consensus lies a deepening divide that lenders should be aware of. Recharacterization challenges “the assertion of a debt against the bankruptcy estate on the ground that the ‘loaned’ capital was actually an equity investment.” In re Insilco Techs., Inc., 480 F.3d 212, 217 (3d Cir. 2007) (internal citations omitted).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Federal Reporter, Debt, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel, Tenth Circuit
    Authors:
    James B. Sowka
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Judgment on willful and malicious trade secret claim is not dischargeable in bankruptcy
    2013-10-09

    Bankruptcy is intended to provide a fresh start and discharge outstanding debt.  But some debt is not dischargeable in bankruptcy.  A Virginia bankruptcy court held last week that a judgment against the debtor for intentional trade secret misappropriation is not dischargeable.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Debtor, Injunction, Embezzlement, US Code
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Seventh Circuit’s latest on Stern may constitute dicta
    2013-08-28

    On August 21, 2013, in Wellness International Network v. Sharif, No. 12-1349 (7th Cir. August 21, 2013), the Seventh Circuit issued its latest opinion on the thorny issues emanating from the Supreme Court’s “narrow” decision in Stern v. Marshall, 131 S. Ct.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Fraud, United States bankruptcy court, Sixth Circuit, Seventh Circuit
    Authors:
    Ryan Pinkston
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Seventh Circuit mandates an “auction process” in “new value” chapter 11 plans
    2013-07-31

    The Issue

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Debtor, United States bankruptcy court, Seventh Circuit
    Authors:
    James B. Sowka
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Bankruptcy court applies Third Circuit test for addressing “debt” versus “equity” question.
    2013-07-25

    The Issue

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Debtor, Interest, Limited liability company, Debt, United States bankruptcy court, Third Circuit
    Authors:
    James B. Sowka
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Bullock cannot save ERISA fiduciary, a sole corporate shareholder whose company failed to make multiemployer fund contributions, from being unable to discharge his liability through personal bankruptcy
    2013-07-10

    Fiduciaries who breach their duties may pay the consequences far longer than they may think, for they may not even be able to escape liability through personal bankruptcy.  In Raso v. Fahey (In re Fahey), No. 11-1118 (June 11, 2013), the U.S Bankruptcy Court for the District of Massachusetts became the first court to apply the new defalcation guidelines laid down by the Supreme Court in Bullock v. BankChampaign, NA, 133 S. Ct.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Shareholder, Employee Retirement Income Security Act 1974 (USA), Fiduciary, Bankruptcy Appellate Panel
    Authors:
    Ronald J. Kramer
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Code blue: NLRB judge finds hospitals’ e-mail and IT policies infirm under the NLRA
    2013-05-03

    Recently, an NLRB administrative law judge ruled that two policies maintained by subsidiaries of the University of Pittsburgh Medical Center (“UPMC”) violated Section 8(a)(1) of the National Labor Relations Act.  See UPMC, Case No. 6-CA-81896, 4/19/13. Specifically, ALJ David Goldman found that the hospitals’ electronic mail and messaging and acceptable use of information technology resources policies impermissibly interfered with employees’ Section 7 right to engage in protected concerted activity.

    Filed under:
    USA, Employment & Labor, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, National Labor Relations Board (USA), NLRA, Administrative law judge
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Successful collateral valuation perhaps key to plan objections
    2013-05-07

    It is no surprise to anyone in the business of secured lending that valuation matters.  It is worth noting, however, that collateral valuation may be outcome-determinative in litigation over a plan of reorganization in bankruptcy.  Although valuation was not the central focus of the Fifth Circuit’s recent decision in Western Real Estate Equities, L.L.C. v. Village at Camp Bowie I, L.P. (Matter of Village at Camp Bowie I, L.P.), No. 12-10271, 2013 U.S. App. LEXIS 3949 (5th Cir. Feb.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Debtor, Collateral (finance), Fifth Circuit
    Authors:
    Ryan Pinkston
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP

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