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    Tenth Circuit BAP: Bankruptcy Courts Have Exclusive Jurisdiction to Determine Whether Claims Are Estate Property
    2020-12-11

    In Hafen v. Adams (In re Hafen), 616 B.R. 570 (B.A.P. 10th Cir. 2020), a bankruptcy appellate panel from the Tenth Circuit ("BAP") held that the bankruptcy court is the only court with subject-matter jurisdiction to decide whether a claim or cause of action is property of a debtors' bankruptcy estate. As a consequence, the BAP held that the bankruptcy court abused its discretion by permitting a state court to determine whether creditors had "standing" to sue third-party recipients of allegedly fraudulent transfers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Tenth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    First Impressions: Tenth Circuit BAP Rules that Section 364 of the Bankruptcy Code Does Not Apply to Chapter 11 Exit Financing
    2020-12-11

    The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to obtain credit or financing during the course of a bankruptcy case is often crucial to the debtor's prospects for either maintaining operations pending the development of a confirmable plan of reorganization or facilitating an orderly liquidation designed to maximize asset values for the benefit of all stakeholders. In a chapter 11 case, financing (and/or cash infusions through recapitalization) also is often a key component of the reorganized debtor's ability to operate post-bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Tenth Circuit
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit: Bankruptcy Trustee May Recover Only the Actual Property (Not Proceeds) Fraudulently Transferred to Subsequent Transferees
    2020-12-11

    The ability of a bankruptcy trustee to avoid certain transfers of a debtor's property and to recover the property or its value from the transferees is an essential tool in maximizing the value of a bankruptcy estate for the benefit of all stakeholders. However, a ruling recently handed down by the U.S. Court of Appeals for the Tenth Circuit could, if followed by other courts, curtail a trustee's avoidance and recovery powers. In Rajala v. Spencer Fane LLP (In re Generation Resources Holding Co.), 964 F.3d 958 (10th Cir. 2020), reh'g denied, No.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Tenth Circuit, U.S. Court of Appeals
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New Mexico Bankruptcy Court Reaffirms Committee Eligibility for Derivative Standing Despite Contrary Tenth Circuit B.A.P. Precedent
    2020-10-21

    In an important affirmation of the rights and duties of a creditors’ committee, Bankruptcy Judge David T. Thuma of the United States Bankruptcy Court for the District of New Mexico has confirmed that a bankruptcy court may confer derivative standing on a committee to assert estate claims if a debtor in possession declines to assert them.[1]

    Filed under:
    USA, New Mexico, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Tenth Circuit
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    New Mexico Bankruptcy Court Reaffirms Committee Eligibility for Derivative Standing Despite Contrary Tenth Circuit B.A.P. Precedent
    2020-10-21

    In an important affirmation of the rights and duties of a creditors’ committee, Bankruptcy Judge David T. Thuma of the United States Bankruptcy Court for the District of New Mexico has confirmed that a bankruptcy court may confer derivative standing on a committee to assert estate claims if a debtor in possession declines to assert them.[1]

    Filed under:
    USA, New Mexico, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Tenth Circuit
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Debtors May Discharge Private Student Loans in Bankruptcy Coming Soon to a Circuit Near You
    2020-10-07

    In what appears to be more good news for those with student loan debt, the Tenth Circuit recently joined the Fifth Circuit by holding that certain private student loans are dischargeable in bankruptcy.

    In McDaniel v. Navient Solutions, LLC, No. 18-1445 (10th Cir. Aug. 31, 2020), the Tenth Circuit held that an educational loan does not constitute “an obligation to repay funds received as an educational benefit” under Section 523(a)(8)(A)(ii) of the Bankruptcy Code.

    Section 523(a)(8) of the Code provides, in pertinent part:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Public, Michael Best & Friedrich LLP, Fifth Circuit, Tenth Circuit
    Authors:
    Joseph D. Brydges , Reza Hajisanei
    Location:
    USA
    Firm:
    Michael Best & Friedrich LLP
    10th Circ. BAP Joins Majority in Finding Section 523(a)(6) Requires Injury to Be Willful and Malicious
    2020-10-01

    In In re Smith, (B.A.P. 10th Cir., Aug. 18, 2020), the U.S. Bankruptcy Appellate Panel for the U.S. Court of Appeals for the Tenth Circuit recently joined the majority of circuit courts of appeals in finding that a creditor seeking a judgment of nondischargeability must demonstrate that the injury caused by the prepetition debtor was both willful and malicious under Section 523(a)(6) of the Bankruptcy Code.

    Factual Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Duane Morris LLP, Title 11 of the US Code, Bankruptcy Appellate Panel, Tenth Circuit
    Authors:
    Keri L. Costello , Rudolph J. Di Massa, Jr.
    Location:
    USA
    Firm:
    Duane Morris LLP
    Tenth Circuit Limits Bankruptcy Protections for Private Student Loans
    2020-09-10

    Millions of Americans are grappling with student debt on top of the challenges posed by the coronavirus pandemic and the economic recession. Unlike other categories of personal debt, most student loans are nondischargeable absent a showing that the debtor is experiencing an “undue hardship.” Of the over $1.6 trillion in student loan debt, over $50 billion is comprised of private loans. On August 31, 2020, in McDaniel v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Public, Thompson Hine LLP, Coronavirus, Fifth Circuit, Tenth Circuit
    Authors:
    Jessica E. Salisbury-Copper , Jennifer L. Maffett-Nickelman , Jessica Kincaid
    Location:
    USA
    Firm:
    Thompson Hine LLP
    Tenth Circuit Affirms Order Allowing Discharge of Private Student Loans
    2020-09-04

    On August 31, 2020, the Tenth Circuit affirmed the United States Bankruptcy Court for the District of Colorado’s holding that certain student loans not guaranteed by a governmental unit may be discharged in bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Tenth Circuit
    Authors:
    Amanda K. Blackmon , Ethan G. Ostroff
    Location:
    USA
    Firm:
    Troutman Pepper
    Supreme Court Strikes Down “Bob Richards” Rule, Impacting Consolidated Group Members’ Entitlement to Tax Refunds in Bankruptcy Proceedings
    2020-02-28

    On February 25, 2020, in Rodriguez v. FDIC,1 the U.S. Supreme Court unanimously rejected the application of the so-called “Bob Richards” rule, a judicial doctrine that was developed in the context of a bankruptcy case almost 60 years ago concerning ownership of tax refunds secured by the parent corporate entity on behalf of a bankrupt subsidiary included in a consolidated group tax return.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Tax, O'Melveny & Myers LLP, Bankruptcy, Internal Revenue Service (USA), Ninth Circuit, Tenth Circuit
    Authors:
    Alexander Anderson , John J. Rapisardi , Billy Abbott , Alexander Roberts , Matthew P. Kremer , Dawn Lim
    Location:
    USA
    Firm:
    O'Melveny & Myers LLP

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