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    File For Bankrupcty When You Have Enough Assets To Pay Your Debts, Then Hide Some Assets . . . What Could Go Wrong?
    2016-10-13

    I don't usually post about bankruptcy or criminal law issues, but the facts from a recent decision from the U.S. Court of Appeals for the Third Circuit, which involved both bankruptcy and criminal law issues, were too intriguing to ignore.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Porzio Bromberg & Newman PC, Bankruptcy, United States bankruptcy court, Third Circuit
    Authors:
    Peter J. Gallagher
    Location:
    USA
    Firm:
    Porzio Bromberg & Newman PC
    Third Circuit Reaffirms Statute of Limitations for Foreclosing Accelerated Loan
    2016-10-11

    The United States Court of Appeals for the Third Circuit recently reaffirmed that a foreclosure action commenced more than six years after the loan was accelerated could still be within the applicable statute of limitations. SeeIn re: Gordon Allen Washington; Gordon Allen Washington v. Bank of New York Mellon, As Tr. for the Certificate-Holders of the CWABS, Inc., Asset-Backed Certificates, Series 2007-5, 2016 WL 5827439 (3d Cir. Sept. 30, 2016). In the case, the borrowed executed a mortgage and promissory note in February 2007.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Riker Danzig LLP, Third Circuit
    Authors:
    Michael R. O’Donnell
    Location:
    USA
    Firm:
    Riker Danzig LLP
    Third Circuit denies summary judgment in issue of pre-emption
    2016-09-05

    On August 29, 2016, the Third Circuit released a precedential opinion (the “Opinion”) which opined on whether filing an involuntary bankruptcy petition could qualify as tortious interference under state law. The Third Circuit’s Opinion is available here. This Opinion was issued in Rosenberg v. DVI Receivables XVII, LLC, Case No. 15-2622. The District Court had ruled that the tortious interference claim was preempted by § 303(i) of the Bankruptcy Code.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Federal preemption, Bankruptcy, Tortious interference, Ninth Circuit, Third Circuit, US District Court for Eastern District of Pennsylvania
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Motion for stay pending appeal - denied in district court
    2016-08-24

    On August 23, 2016, Judge Sue L. Robinson of the Delaware District Court issued an Order denying an appellant’s motion for stay pending appeal. The decision was issued in a appeals arising from the Molycorp Bankruptcy (which is docketed, at case 15-11357 in the Delaware Bankruptcy Court). The appeals are docketed in the District Court as Case Numbers 16-286 and 16-288. A copy of the Opinion is available here.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Use of Tender Offers in Bankruptcy to Effect a Pre-confirmation Settlement
    2016-08-16

    The Third Circuit recently affirmed that a debtor in Chapter 11 can use a tender offer to settle claims without running afoul of the Bankruptcy Code. Although In re Energy Future Holdings Corp.is limited to its particular facts and circumstances, the decision could lead to increased use of tender offers prior to confirmation of a bankruptcy plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Interest, Debt, Maturity (finance), Leveraged buyout, Tender offer, Accrued interest, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    John Bessonette , Nathan Hyman
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    EFIH First Lien Trustee Petitions for Certiorari to Resolve Circuit Split over Pre-Plan Settlements
    2016-08-17

    On August 3, 2016, Delaware Trust Company, as trustee for the EFIH first lien notes, filed a petition for certiorari with the United States Supreme Court, asking the Court to review the Energy Future Holding debtors’ settlement with the EFIH first lien noteholders.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, United States bankruptcy court, Third Circuit
    Authors:
    Debora Hoehne
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    A Setoff Question of First Impression
    2016-08-12

    The Bankruptcy Court for the District of Delaware recently faced a question of first impression: whether an allowed postpetition administrative expense claim can be used to set off preference liability. In concluding that it can, the court took a closer look at the nature of a preference claim.

    Facts and Arguments

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Fraud, Limited liability company, Tyson Foods, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Moshe Fink
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Court strikes unapproved filing
    2016-08-15

    On August 9, 2016, Judge Kevin Carey of the Delaware Bankruptcy Court issued an Order both dismissing a complaint and striking a defendant’s Notice of Supplemental Authority. The decision was issued in the Quantum Foods bankruptcy, in the adversary proceeding No. 16-50045. A copy of the Opinion is available here.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Third Circuit
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    No Turnover of the Make-whole Amount in the EFH Bankruptcy
    2016-08-16

    In a pair of decisions in 2015, the United States Bankruptcy Court of the District of Delaware determined that neither the first lien notes trustee nor the second lien notes trustee of Energy Future Intermediate Holdings Corp. (“EFIH”), a subsidiary of Energy Future Holdings (“EFH”), was entitled to receive a make-whole on the repayment of the corresponding indebtedness resulting from the acceleration of that debt in the EFH bankruptcy case.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Collateral (finance), Interest, Debt, Liquidation, Title 11 of the US Code, Trustee, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Joshua Brody , Jennifer R. Sharret
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    The Third Circuit Weighs In Again on the Meaning of “Unreasonably Small Capital” in Constructively Fraudulent Transfer Avoidance Litigation
    2016-08-08

    In the November/December 2014 edition of the Business Restructuring Review, we discussed a decision handed down by the U.S. District Court for the District of Delaware addressing the meaning of “unreasonably small capital” in the context of constructively fraudulent transfer avoidance litigation. In Whyte ex rel. SemGroup Litig. Trust v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Bankruptcy, Conflict of laws, Debtor, Unsecured debt, Fraud, Interest, Federal Reporter, Debt, Conveyancing, Cashflow, Title 11 of the US Code, Trustee, Third Circuit, Seventh Circuit, US District Court for District of Delaware
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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