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    Tenth Circuit holds that judicial estoppel applies to bar lawsuit of debtors who sought to recover damages in excess of amount disclosed in bankruptcy proceedings
    2013-09-11

    The United States Court of Appeals for the Tenth Circuit recently shut down litigation filed by plaintiffs who had represented to a Bankruptcy Court that their claims were worth far less than they were attempting to recover in a lawsuit filed in federal district court. Queen v. TA Operating, LLC, --- F.3d ----, 2013 WL 4419322, (10th Cir. Aug. 20, 2013).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, Estoppel, United States bankruptcy court, Tenth Circuit
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Tenth Circuit: fraudulently transferred assets not estate property until recovered
    2013-07-31

    The U.S. Court of Appeals for the Tenth Circuit―in Rajala v. Gardner, 709 F.3d 1031 (10th Cir. 2013)―has joined the Second Circuit and departed from the Fifth Circuit by holding that an allegedly fraudulently transferred asset is not property of the estate until recovered pursuant to section 550 of the Bankruptcy Code and therefore is not covered by the automatic stay. According to the court, its decision “gives Congress’s chosen language its ordinary meaning, and abides by a rule against surplusage.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Second Circuit, Fifth Circuit, Tenth Circuit
    Authors:
    Jennifer L. Seidman
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit joins Fourth Circuit in holding that absolute priority rule applies to individual chapter 11 cases
    2013-06-12

    Dill Oil Company, LLC v. Stephens, No. 11-6309 (10th Cir., Jan. 15, 2013)

    CASE SNAPSHOT

    The Court of Appeals for the Tenth Circuit, in a case of first impression before the court, joined the Fourth Circuit in holding that the absolute priority rule remains applicable in individual chapter 11 cases.

    FACTUAL BACKGROUND

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Unsecured debt, Secured creditor, United States bankruptcy court, Fourth Circuit, Tenth Circuit
    Authors:
    Alison Wickizer Toepp
    Location:
    USA
    Firm:
    Reed Smith LLP
    SCOTUS lets stand security interest in proceeds of bankruptcy transfer of FCC license
    2013-06-05

    On May 13, 2013, the Supreme Court declined to review the ruling of the United States Court of Appeals for the Tenth Circuit1 that had held that a security interest may extend to the “proceeds” of the future transfer of a license holder’s interest in its Federal Communications Commission (“FCC”) broadcast license and that, under applicable state law, the security interest attached upon execution of the security agreement, despite the fact that the parties did not contemplate a transfer of the license at that time.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Cahill Gordon & Reindel LLP, Debtor, Federal Communications Commission (USA), Title 11 of the US Code, Supreme Court of the United States, Tenth Circuit
    Authors:
    Chérie R. Kiser , Joel H. Levitin , Richard A. Stieglitz Jr.
    Location:
    USA
    Firm:
    Cahill Gordon & Reindel LLP
    Pre-petition security license in proceeds of FCC license continues post-petition – Tracy Broadcasting overturned
    2013-02-18

    In re Tracy Broadcasting Corporation, No. 11-1453 (10th Cir., Oct. 16, 2012)

    CASE SNAPSHOT

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Reed Smith LLP, Federal Communications Commission (USA), United States bankruptcy court, Tenth Circuit
    Authors:
    Christopher O. Rivas
    Location:
    USA
    Firm:
    Reed Smith LLP
    Judgments against Ponzi scheme net gainers are dischargeable in bankruptcy
    2012-08-27

    On August 20th, the U.S. Court of Appeals for the Tenth Circuit reversed a trial court's ruling finding that judgments against Ponzi scheme "net gainers" were non-dischargeable in bankruptcy. The debtors were early investors in what turned out to be a Ponzi scheme and received more money than they invested. When the Ponzi scheme was uncovered, the state State of Oklahoma sued the debtors for unjust enrichment but not for any securities violations. After the State obtained a judgment on the unjust enrichment claim, the debtors declared bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Tenth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Keogh plan with qualification defects found to be exempt from bankruptcy estate
    2012-06-27

    Generally, retirement plan benefits are excluded from a bankruptcy estate. However, if the retirement plan is not covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA), a separate exemption from the bankruptcy estate must be found. Some retirement plans are not covered by Title I of ERISA because they do not cover employees, which, for this purpose, excludes the sole owner of a business and the owner’s spouse. These types of plans are commonly referred to as “Keogh” plans.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Tax, Hodgson Russ LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Tenth Circuit
    Authors:
    Peter K. Bradley , Anita Costello Greer , Michael J. Flanagan , Richard W. Kaiser , Arthur A. Marrapese III , Ryan M. Murphy
    Location:
    USA
    Firm:
    Hodgson Russ LLP
    Equitable mootness and arbitration: first impressions in the Ninth Circuit
    2012-04-01

    2012 is shaping up as a year of bankruptcy first impressions for the Ninth Circuit. The court of appeals sailed into uncharted bankruptcy waters twice already this year in the same chapter 11 case. On January 24, the court ruled in In re Thorpe Insulation Co., 2012 WL 178998 (9th Cir. Jan. 24, 2012) ("Thorpe I"), that an appeal by certain nonsettling asbestos insurers of an order confirming a chapter 11 plan was not equitably moot because, among other things, the plan had not been "substantially consummated" under the court's novel construction of that statutory term.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit, Tenth Circuit
    Authors:
    Paul D. Leake , Peter J. Benvenutti , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit holds automatic stay applies to debtor’s appeal of pre-petition action against it, joining most other circuits
    2012-03-15

    TW Telecom Holdings Inc. v. Carolina Internet Ltd., Case No. 11-1068 (10th Cir. Nov. 15, 2011)

    CASE SNAPSHOT

    The Tenth Circuit Court of Appeals reversed its longstanding position, and held that section 362(a) of the Bankruptcy Code does automatically stay the debtor’s appeal of an action commenced against the debtor prior to the bankruptcy filing, regardless of whether the debtor is the appellant or the appellee. This decision aligns the Tenth Circuit with at least nine other circuits.  

    FACTUAL BACKGROUND

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Tenth Circuit
    Location:
    USA
    Firm:
    Reed Smith LLP
    Failure to provide mortgage note precludes relief from bankruptcy stay
    2012-02-06

    On February 1st, the Tenth Circuit held that Deutsche Bank failed to establish it was a "party of interest" entitled to relief from a bankruptcy petition's automatic stay. After Deutsche Bank's foreclosure of the Millers' home was stayed by the latter's bankruptcy petition, the bank obtained relief from the stay. On appeal, the Tenth Circuit reversed and remanded. The bank failed to provide the original note to the bankruptcy court and did not provide the original or a copy to the bankruptcy appellate panel.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Winston & Strawn LLP, Deutsche Bank, Tenth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP

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