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    Congoleum pre-packaged settlement is unreasonable and unenforceable against insurers
    2007-05-25

    The Superior Court of New Jersey has ruled that Congoleum's pre-packaged bankruptcy plan settling asbestos claims is not enforceable against its insurers. The court found that the plan was unreasonable and that, under the terms of the plan, insurance obligations are not triggered because it was not shown that Congoleum was "legally obligated to pay" the claimants who would receive payments. Congoleum Corp. v. Ace American Insurance Co., No. MID-L-8908-01 (N.J. Super. Ct. May 18, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Fraud, Statute of limitations, Federal Reporter, Good faith, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Inadequate consideration exclusion applies to claim for debt restructuring transaction
    2010-06-07

    The United States Court of Appeals for the Third Circuit, applying New York law, has held that an inadequate consideration exclusion unambiguously bars coverage for a lawsuit arising out of a debt restructuring transaction. Delta Financial Corp. v. Westchester Surplus Ins. Co. (In re Delta Financial Corp.), 2010 WL 1784054 (3d Cir. May 5, 2010).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Unsecured debt, Security (finance), Breach of contract, Fraud, Fiduciary, Consideration, Debt, Foreclosure, Misrepresentation, Cashflow, Debt restructuring, Certificate of deposit, Secured loan, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Third Circuit limits secured creditor's right to credit bid: "cram down" plan may be "fair and equitable" despite requiring cash bids
    2010-03-27

    On March 22, 2010, the United States Court of Appeals for the Third Circuit affirmed a lower court decision which held that secured creditors do not have an absolute right to credit bid at an auction of assets conducted in connection with a bankruptcy reorganization plan. The court ruled that secured creditors are only entitled to the "indubitable equivalent" of their claims under a specific subsection of the Bankruptcy Code. The "indubitable equivalent" could be the cash value of the assets upon which the creditor holds liens as determined through an auction process.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Credit (finance), Debtor, Interest, Secured creditor, Secured loan, US Code, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Supreme Court holds oral argument in Schwab v. Reilly: analyzing a trustee’s duty to object to a facially valid exemption to avoid the risk that an undervalued asset be deemed “fully exempt”?
    2009-11-03

    United States Supreme Court

    Washington, D.C.

    November 3, 2009

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Tax exemption, Bankruptcy, Debtor, Statutory interpretation, Interest, Consideration, SCOTUS, United States bankruptcy court, Third Circuit, Trustee
    Authors:
    Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    District Court holds that untimely objection waives Fifth Amendment objection in coverage dispute
    2008-08-11

    The United States District Court for the Western District of Pennsylvania dismissed an appeal of an order in Federal Insurance Co. v. Le-Nature's, Inc., 380 B.R. 747 (Bankr. W.D. Pa. 2008), in which the bankruptcy court granted the insurer's motion to compel discovery and ruled that the defendant waived all of his discovery objections, including objections based upon the Fifth Amendment's protection against self-incrimination, for failing timely to assert them. Federal Ins. Co. v. Le-Nature's, Inc., Civil Action No. 08-269 (W.D. Pa. July 25, 2008).

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Collateral (finance), Waiver, Discovery, Motion to compel, Fifth Amendment, United States bankruptcy court, Third Circuit, US District Court for Western District of Pennsylvania
    Location:
    USA
    Firm:
    Wiley Rein LLP
    So this is why judges bother to write dissenting opinions - Seventh Circuit decision on credit bidding vindicates Judge Ambro's Philadelphia Newspapers dissent
    2011-07-26

    Critics of last year’s decision on credit bidding by the Third Circuit Court of Appeals in the Philadelphia Newspapers chapter 11 case welcomed the Seventh Circuit’s recent unanimous opinion in River Road Hotel Partners LLC.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Credit (finance), Debtor, Collateral (finance), Debt, Dissenting opinion, Secured loan, US Congress, United States bankruptcy court, Third Circuit, Seventh Circuit, US District Court for Northern District of Illinois
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Take me to the River (Road): the Seventh Circuit prepares to weigh in on credit bidding
    2011-04-25

    The U.S. Court of Appeals for the Seventh Circuit has taken under advisement the latest case involving the now contentious issue of credit bidding.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Debtor, Collateral (finance), Dissenting opinion, Secured creditor, Majority opinion, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit, Seventh Circuit, US District Court for Northern District of Illinois
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Credit bidding after Philadelphia Newspapers: dissent 1, majority 0
    2010-10-29

    Bankruptcy lawyers who are regularly involved in distressed m&a deals have been wondering for the past few months about the potential fallout from Philadelphia Newspapers.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Credit (finance), Debtor, Dissenting opinion, Majority opinion, Secured loan, United States bankruptcy court, Third Circuit, Seventh Circuit, US District Court for Northern District of Illinois
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Houston Bankruptcy Court Splits With Third Circuit on “Statutory Impairment”
    2017-10-06

    Ultra court clarifies the requirements for classifying a creditor as “unimpaired” under a plan of reorganization.

    Key Points:

    • Texas bankruptcy court splits from Third Circuit in finding that a creditor must receive everything it is entitled to under non-bankruptcy law in order for the creditor to be “unimpaired.”

    • The decision does not require that unsecured creditors receive post-petition interest but provides that they will be “impaired” if they do not

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Third Circuit
    Authors:
    Jeffrey Mispagel
    Location:
    USA
    Firm:
    Latham & Watkins LLP
    Seventh Circuit disagrees with Philadelphia Newspapers and finds that credit bidding required for asset sales in bankruptcy plans
    2011-07-18

    When entering into secured transactions, most secured lenders long assumed that, even in a bankruptcy, their borrowers would not be able to sell encumbered assets free and clear of the lenders’ liens without the lenders’ consent or, without at least providing the lenders the opportunity to bid their secured debt at an auction.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Bankruptcy, Credit (finance), Debtor, Interest, Limited liability company, Secured creditor, Secured loan, US Congress, SCOTUS, United States bankruptcy court, Third Circuit, Seventh Circuit
    Authors:
    Caroline A. Reckler , Matthew L. Warren
    Location:
    USA
    Firm:
    Latham & Watkins LLP

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