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    In re Mckenzie, 737 f.3d 1034 (6th Cir. 2013) extending the deadline for trustees to attack preferences: the Sixth Circuit’s life jacket for tardy trustees
    2014-03-18

    It is often said that the acid test of a security interest or lien on property is the bankruptcy of the property owner. If that person or entity files a bankruptcy petition, the bankruptcy trustee has a number of options to challenge or even avoid certain liens. A lien that is not properly perfected is subject to attack by a trustee under both the “strong-arm clause” (Bankruptcy Code § 544) and the preference provisions (Bankruptcy Code § 547). If the lien is avoided, the property can then be sold and the proceeds distributed to the unsecured creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Porter Wright Morris & Arthur LLP, Debtor, Limited liability company, Secured creditor, Trustee, Sixth Circuit
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur LLP
    Employers must file protective claims for refund by April 15, 2014 for FICA tax paid on severance pay
    2014-02-25

    Sometime this summer, the Supreme Court is expected to issue its ruling in U.S. v. Quality Stores.  In this case, the Supreme Court reviewed the Sixth Circuit’s holding that supplemental unemployment compensation benefits (“SUB payments”) relating to severance payments are not subject to FICA taxes. U.S. v. Quality Stores, 693 F.3d 605 (6th Cir. 2012).  The Sixth Circuit decision resurrects a long-disputed issue regarding the applicability of FICA to severance pay.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Tax, Kilpatrick Townsend & Stockton LLP, Unemployment benefits, Federal Insurance Contributions Act tax, Severance package, United States bankruptcy court, Sixth Circuit
    Authors:
    Charles E. Hodges II , Susan S. Hu
    Location:
    USA
    Firm:
    Kilpatrick Townsend & Stockton LLP
    Sixth Circuit answers two questions of first impression in connection with motions for relief—(1) a creditor bears the burden to prove validity of its lien and (2) a trustee may allege an expired preferential transfer defensively to defeat relief from S
    2014-02-18

    The Sixth Circuit in its recent opinion in Grant, Konvalinka & Harrison, P.C. v. Still (In re McKenzie), 737 F.3d 1034 (6th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Legal burden of proof, Secured creditor, Sixth Circuit
    Location:
    USA
    Firm:
    Holland & Hart LLP
    Sixth Circuit finds no bankruptcy exception to prohibition against direct actions in Tennessee
    2014-02-24

    The Court of Appeals for the Sixth Circuit held that no exception exists to Tennessee’s general prohibition on direct actions against an insurer, even in cases where the insured has declared bankruptcy triggering an automatic stay before a judgment in the underlying action.  Mauriello v. Great American E&S Insurance Co., 2014 WL 321921 (6th Cir. Jan. 30, 2014).  In so holding, the Sixth Circuit reasoned that an adequate remedy remains notwithstanding the automatic stay for a claimant to obtain a judgment against a bankrupt insured.

    Filed under:
    USA, Tennessee, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Direct action, United States bankruptcy court, Sixth Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Sixth Circuit issues significant bankruptcy decision
    2014-01-27

    In December, the Sixth Circuit, in Grant, Konvalinka & Harrison, P.C. v. Still (In re McKenzie), 737 F.3d 1034 (6th Cir. 2013), addressed two matters of first impression when it adopted the majority rules that (i) a creditor who seeks relief from the bankruptcy automatic stay has the burden to prove the validity of its perfected security interest in collateral; and (ii) the expiration of the two-year statute of limitations on bankruptcy avoidance actions does not prevent the trustee from asserting them defensively under section 502(d) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Statute of limitations, Federal Reporter, United States bankruptcy court, Sixth Circuit
    Authors:
    Colter Paulson
    Location:
    USA
    Firm:
    Squire Patton Boggs
    The Sixth Circuit holds that bankruptcy courts lack the inherent power to award “serious non-compensatory punitive damages”
    2013-12-27

    Nearly 30 years after enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984 and establishment of the current bankruptcy court structure, courts are still struggling to understand the bounds of a bankruptcy court’s jurisdiction and power. Unfortunately for one recent appellant, a bankruptcy court’s power to enter punitive damages is not as great as it had hoped.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Porter Wright Morris & Arthur LLP, Punitive damages, Bankruptcy, Abuse of process, United States bankruptcy court, Sixth Circuit
    Authors:
    Andrew S. Nicoll
    Location:
    USA
    Firm:
    Porter Wright Morris & Arthur 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
    Detroit, Michigan, eligible to file Chapter 9 bankruptcy
    2013-12-13

    On December 5, 2013, Judge Steven Rhodes of the US Bankruptcy Court for the Eastern District of Michigan held that the city of Detroit had satisfied the five expressly delineated eligibility requirements for filing under Chapter 9 of the US Bankruptcy Code1 and so could proceed with its bankruptcy case.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Sixth Circuit, US District Court for Eastern District of Michigan
    Authors:
    J. Robert Stoll , Sean T. Scott , Dr. Jens Peter Schmidt , Aaron Gavant
    Location:
    USA
    Firm:
    Mayer Brown
    Appeals of Detroit’s bankruptcy eligibility may proceed directly to Sixth Circuit
    2013-12-16

    The Michigan judge overseeing Detroit’s historic bankruptcy case found today that parties seeking to appeal his order finding the city eligible for bankruptcy protection may proceed directly to the Sixth Circuit.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, United States bankruptcy court, Sixth Circuit
    Authors:
    Pierre H. Bergeron
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Sixth Circuit Court of Appeals rules that collateral proceeds do not include accounts
    2013-11-12

    The US Court of Appeals for the Sixth Circuit has ruled that a lender’s security interest in accounts was not perfected because a reference to “proceeds” in the lender’s UCC financing statement did not expressly refer to “accounts.” The Sixth Circuit surprisingly interpreted the definition of “proceeds”1 in Article 9 of the Uniform Commercial Code to exclude “accounts”2 (despite and without reference to provisions of UCC Article 9 to the contrary).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Mayer Brown, Debtor, Collateral (finance), Accounts receivable, Uniform Commercial Code (USA), Sixth Circuit
    Authors:
    John F. Lawlor , Kevin C. McDonald , Craig E. Reimer
    Location:
    USA
    Firm:
    Mayer Brown

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