In a move signaling the end of 6 years of litigation, the bankruptcy trustee for the holding company of failed mortgage lender IndyMac Bancorp, Inc. (“Bancorp”) negotiated a settlement agreement with the FDIC regarding the ownership of nearly $60 million of tax refunds.  If approved by the bankruptcy court, the settlement would resolve one of the most highly publicized tax refund disputes involving the FDIC, a number of which arose in the wake of 2008’s financial crisis.

Sophisticated distressed investors know the benefits of acquiring assets through a § 363 sale in a bankruptcy case. The primary benefit, of course, is acquiring assets free and clear of pre-existing liens, claims and interests. There are some occasions, however, where it is not practical for a buyer to request that a sale be run through a bankruptcy process, especially when the value of the assets and/or a sharp decline in the assets’ value does not justify the time and expense associated with a chapter 11 filing.

Most lawyers are generally familiar with the concept of a floating lien under the Uniform Commercial Code. A secured creditor takes a lien in a collateral category that changes from time to time as items are added or subtracted. A common example is a working capital loan, in which financed inventory is produced and sold, then becoming an account, which is collected to provide the funds to produce new inventory.  A secured creditor may perfect a lien in the changing mass of inventory and receivables, as each category exists from time to time.

In bankruptcy proceedings involving the US retailer Crumbs Bake Shop Inc (Crumbs), the US trustee has opposed the sale of Crumbs’ customer lists on the basis that this would violate Crumbs’ privacy policy. The privacy policy allows personal data held by Crumbs to be transferred only where this is required by government authorities, needed to provide services or following customer consent.

Last Friday, the Sixth Circuit postponed oral argument in some of the pending cases in the appeal from the bankruptcy judge’s decision that Detroit was entitled to creditor protection under Chapter 9 of the U.S. Bankruptcy Code and could try to alter the terms of workers’ pensions. The postponement was apparently granted to allow various pension groups to settle with the city.

As we expected might happen in light of the Court’s previous order, the parties in the Detroit bankruptcy appeal agreed to postpone oral argument.  In a letter to the parties, however, Judge Gibbons wrote that the appeals should be resolved before near the beginning of the hearing on the confirmation

The Texas Supreme Court, on June 20, 2014, issued its highly  anticipated opinion in Ritchie v. Rupe, 2014 Tex. LEXIS 500 (Tex.  2014). Ritchie involved a claim by a minority shareholder in a  closely held corporation under the Texas receivership statute,  seeking to force the majority shareholders to buy-out the minority  shareholder’s interest in the corporation.

On July 23, in ASARCO LLC v. Union Pacific Railroad Company, et al. No. 13-1435 (10th Cir.), the Tenth Circuit rejected the notion that settlement requirements are different in the bankruptcy context.  Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.

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.

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.