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    Lone Court Decision Complicates Question Regarding Effect of Bankruptcy Under WVCCPA
    2018-11-15

    The West Virginia Consumer Credit and Protection Act (“WVCCPA”) is a remedial statute designed to protect West Virginia consumers from improper debt collection. Only “consumers” have standing to file a lawsuit under the WVCCPA. The term “consumer” is defined as a natural person that owes a debt or allegedly owes a debt. But does a person still owe debt if that debt was discharged by a bankruptcy court? Although there is some conflicting case law in West Virginia, an answer is forming.

    Filed under:
    USA, Virginia, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Bankruptcy, Debtor, Consumer protection, Debt, Foreclosure, Standing (law), Debt collection, Bankruptcy discharge, Circuit court
    Authors:
    Andrew B. Buxbaum , David M. Gettings , David N. Anthony
    Location:
    USA
    Firm:
    Troutman Pepper
    Third Circuit holds that insurers have standing to challenge Chapter 11 plan designed to be 'insurance neutral'
    2011-05-10

    In a recent decision arising out of the Chapter 11 bankruptcy case of Global Industrial Technologies, Inc. (GIT),1 the U.S. Court of Appeals for the Third Circuit, sitting en banc, held that insurance companies that had issued liability insurance policies to a manufacturer before its bankruptcy filing had standing to object to confirmation of the company’s Chapter 11 plan of reorganization, even though the plan had been designed to be “insurance neutral” with regard to the policies.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Troutman Pepper, Bankruptcy, Debtor, Injunction, Class action, Standing (law), Liability (financial accounting), Holding company, Liability insurance, Title 11 of the US Code, Third Circuit
    Authors:
    Michael H. Reed
    Location:
    USA
    Firm:
    Troutman Pepper
    Delaware Court of Chancery says creditors of insolvent LLCs may not sue management
    2010-11-18

    Creditors of insolvent Delaware corporations have recourse against corporate directors and officers whose disloyal or self-dealing conduct reduces the corporation’s assets available for distribution. Delaware courts have held that directors and officers of insolvent corporations owe fiduciary duties to creditors as the principal stakeholders in the remaining corporate assets. Where those duties are breached, creditors have standing to bring actions derivatively on behalf of the corporation for damages to the corporation. However, in a recent decision by Vice Chancellor J.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Troutman Pepper, Shareholder, Breach of contract, Fiduciary, Board of directors, Limited liability company, Standing (law), Stakeholder (corporate), Default (finance), Delaware General Corporation Law, Delaware Court of Chancery, Court of equity
    Location:
    USA
    Firm:
    Troutman Pepper
    Economic interest required
    2010-08-25

    A party cannot appeal a decision made in bankruptcy proceedings by reason only of a personal interest in the outcome. An economic interest is a pre-requisite.

    This was confirmed by the court in Sands and another v Monem and another, in which the bankrupt had transferred the interest in his home to his wife before being made bankrupt. The transfer was made allegedly in order to settle a debt, although this was not reflected in the documentation. That transfer was successfully set aside as a preference by the bankrupt's trustee.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Interest, Debt, Standing (law), Economy, Trustee
    Authors:
    Ian Weatherall , Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Losing acquiror in competing reorganization plan fight has standing to seek reimbursement of fees and expenses
    2012-10-18

    A New York bankruptcy court recently held that a losing acquiror in a competing Chapter 11 plan fight had “standing” to seek reimbursement of its legal fees and expenses as a “substantial contribution” to the reorganization case. In re S & Y Enterprises, LLC, et al., 2012 Bankr. LEXIS 4622, at *4-*5 (Bankr. E.D.N.Y., September 28, 2012). Nevertheless, the losing acquiror failed to recover because, in the court’s view, it did not satisfy the statutory requirements for reimbursement with the requisite “preponderance of the evidence.” Id.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Interest, Standing (law), Legal burden of proof, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit holds that senior creditors’ “gifting” of value to existing shareholder under reorganization plan violates absolute priority rule
    2011-02-10

    The U.S. Court of Appeals for the Second Circuit, on Feb. 7, 2011, held that senior creditors could not “gift” part of their reorganization plan recovery to existing shareholders of the debtor.In re DBSD N. Am., Inc., __ F.3d __, 2011 WL 350480 (2d Cir. Feb. 7, 2011) (2-1) (Lynch, J.) (explainingIn re DBSD N. Am., Inc., 627 F.3d 496 (2d Cir. 2010) (summary opinion)). Its extensive 62-page opinion explained the court’s previous two-page summary ruling of Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Share (finance), Bankruptcy, Shareholder, Debtor, Unsecured debt, Interest, Debt, Standing (law), Unsecured creditor, Sprint Corporation, Second Circuit, United States bankruptcy court, US District Court for SDNY
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Professional’s pre-approved fixed fee award upheld by 2d Cir.
    2009-01-16

    Financial advisors, investment bankers, lawyers and other professionals in reorganization cases should pay close attention to a decision of the U.S. Court of Appeals for the Second Circuit handed down on Jan. 6, 2009. In re Smart World Technologies, LLC, ___ F.3d ___ (2d Cir. 1/6/2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Contractual term, Debtor, Federal Reporter, Investment banking, Standing (law), Liquidation, Judicial review, Contingent fee, Precondition, Second Circuit, United States bankruptcy court, Sixth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit affirms dismissal of creditors' committee equitable subordination complaint
    2007-08-20

    The U.S. Court of Appeals for the Second Circuit, on July 9, 2007, decisively affirmed a bankruptcy court's dismissal of an equitable subordination complaint filed by a creditors' committee against eight investment fund lenders. Official Committee of Unsecured Creditors of Applied Theory Corporation v. Halifax Fund, L.P., et al. (In re Applied Theory Corporation), ___ F.3d ___, 2007 U.S. App. LEXIS 16180 (2d Cir. July 9, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Unsecured debt, Federal Reporter, Standing (law), Limited partnership, Investment funds, Secured creditor, Unsecured creditor, Secured loan, Second Circuit, United States bankruptcy court, Fourth Circuit, Trustee
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Delaware’s high court affirms dismissal of creditor’s suit against directors
    2007-05-25

    The Delaware Supreme Court affirmed on May 18, 2007, the Delaware Chancery Court’s dismissal of a breach of fiduciary duty suit brought by a creditor against certain directors of Clearwire Holdings Inc. North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, C.A. No. 1456-N (May 18, 2007).

    Whether a creditor may assert a direct claim against corporate directors for breach of fiduciary duty when the corporation is insolvent or in the so-called “zone of insolvency.”

    Answer: No.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Shareholder, Breach of contract, Fraud, Fiduciary, Board of directors, Limited liability company, Beneficiary, Standing (law), Good faith, Commercial law, Derivative suit, Westlaw, Delaware Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bad facts make bad law: another attack on MERS
    2011-03-01

    On February 10, 2011, the United States Bankruptcy Court for the Eastern District of New York issued a memorandum decision addressing whether the alleged holder of a mortgage loan had sufficient status as a secured creditor to seek relief from the automatic stay to pursue a foreclosure action.1 After resolving the primary issue in controversy on purely procedural grounds and granting the requested relief, the Court analyzed whether an entity that acquires its interest in a mortgage loan through an assignment from Mortgage Electronic Registration Systems, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Dentons, Debtor, Res judicata and issue estoppel, Mortgage loan, Foreclosure, Standing (law), Secured creditor, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Dentons

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