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    Bankruptcy court rejects FDIC’s claim for capital shortfall
    2010-09-23

    The next few years will see the “redevelopment” of the law in two critical areas involving bank failures where the Federal Deposit Insurance Corpora-tion (“FDIC”) is appointed receiver: (i) the relative rights and claims of creditors of a bank or savings and loan holding company, including the FDIC; and (ii) D&O and professional liability. Significant decisions are be-ginning to be issued with regard to the former.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Holding company, Depository institution, Bank holding company, Subsidiary, Title 11 of the US Code, Federal Deposit Insurance Corporation (USA), Federal Reserve Bank, United States bankruptcy court
    Authors:
    Thomas P. Vartanian , Robert H. Ledig , Glenn E. Siegel
    Location:
    USA
    Firm:
    Dechert LLP
    Are Critical Vendors Insulated from Preference Actions?
    2020-06-09

    No, says the Delaware Bankruptcy Court in In re Maxus Energy Corp. In Maxus, the defendant, Vista Analytical Laboratory, Inc. (“Vista” or the “Defendant”), a designated critical vendor, sought summary judgement dismissing the preference complaint. The Court denied summary judgement finding that the critical vendor status did not per se insulate Vista from preference actions.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Third Circuit overrules Frenville accrual test to hold that asbestos-related claims arise when the claimant is exposed
    2010-06-16

    The United States Court of Appeals for the Third Circuit on June 2, 2010, sitting en banc, overruled its own precedential holding in Avellino & Beines v. M. Frenville Co. (Frenville), 744 F.2d 332 (3d Cir. 1984), to hold that in the context of asbestos-related tort claims, a “claim” under the Bankruptcy Code arises when an individual is exposed pre-petition to a product giving rise to an injury rather than when the injury manifests itself. JED-WEN, Inc. v. Van Brunt (In re Grossman’s), No. 1563, slip op. at 18 (3d Cir. June 2, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Product Regulation & Liability, Dechert LLP, Bankruptcy, Conflict of laws, Retail, Debtor, Federal Reporter, US Code, Title 11 of the US Code, MFG.com, United States bankruptcy court, Fifth Circuit, Third Circuit, Fourth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    Subsequent Transferee Retains Jury Trial Rights Notwithstanding Initial Transferee’s Waiver
    2020-06-08

    It is well established that by filing a proof of claim in bankruptcy, a creditor submits itself to the equitable jurisdiction of the bankruptcy court and waives any right it would otherwise have to a jury trial with respect to any issue that “bears directly on the allowance of its claim.” Such a waiver normally applies in fraudulent transfer actions, since under Section 502(d) of the Bankruptcy Code the court must disallow a claim of any entity that received an avoidable transfer.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    Fifth Circuit holds foreign representatives may bring foreign law avoidance actions under Chapter 15 of Bankruptcy Code
    2010-04-05

    The United States Court of Appeals for the Fifth Circuit on March 17, 2010 held that foreign representatives appointed in a foreign insolvency proceed-ing have the authority to bring a foreign law based avoidance action in an ancillary bankruptcy proceeding commenced under Chapter 15 of the Bankruptcy Code, reversing the lower court opinions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, Liquidation, Subject-matter jurisdiction, US Code, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, US District Court for SDNY
    Location:
    USA
    Firm:
    Dechert LLP
    Fresh Air and Fresh Start: Are Environmental Liabilities Dischargeable?
    2020-05-06

    Two courts recently answered “yes,” finding that environmental claims brought against reorganized debtors by government entities were discharged under confirmed Chapter 11 plans of reorganization. In In re Exide Techs., 613 B.R. 79 (D. Del. 2020), the District of Delaware held that pre-petition, non-compensatory air quality penalties imposed on a Chapter 11 debtor by a state regulator were subject to discharge in bankruptcy. And in In re Peabody Energy Corp.

    I.Exide Techs.: the Bankruptcy Code’s Exceptions to Dischargeability

    Filed under:
    USA, Environment & Climate Change, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    Claims Based on Avoidable Transfer Cannot be “Washed Clean” in the Secondary Market
    2020-04-27

    Disagreeing with the much-critiqued SDNY opinion in Enron, the SDNY bankruptcy court disallowed claims brought by secondary transferees because the original claimants allegedly received millions of dollars in fraudulent transfers and preferences from the Debtors that have not been repaid. Deepening the district spilt on the nature of Section 502(d) of the Bankruptcy Code, the Court held that the defense barring fraudulent transfer-tainted claims focuses on claims—not claimants—and cannot be “washed clean” by a subsequent transfer in the secondary market.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Due diligence, Title 11 of the US Code
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    The U.S. Supreme Court Holds that Orders Granting or Denying Lift Stay Motions are Final
    2020-01-28

    The consequences of an order or judgement being final or interlocutory are enormous. An order from an interlocutory order requires leave since these orders are not appealable as of right. In addition, a failure to obtain leave may result in the issue becoming moot. This is especially so when motions to lift the stay are involved: if the motion is denied and is not immediately appealable, by the time the case is concluded, the issues will most likely be moot.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code, SCOTUS
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    5th Cir. Holds Bankruptcy Courts Cannot Enforce Discharge Injunctions From Other Districts
    2019-11-01

    The U.S. Court of Appeals for the Fifth Circuit recently held that a bankruptcy court lacks the power to enforce discharge injunctions entered in other districts, and that the debtors’ particular private education loans were not excepted from discharge.

    A copy of the opinion in Crocker v. Navient Solutions, LLC is available at: Link to Opinion.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Debtor, Student loan, Title 11 of the US Code
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    11th Cir. Holds No Violation of Bankruptcy Discharge for ‘Informational Statement’
    2019-09-19

    The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the bankruptcy court’s denial of a debtor-borrower’s motion for sanctions, which alleged that her mortgage loan servicer violated her bankruptcy discharge by mailing a communication in a purported attempt to collect upon a discharged debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Debtor, Title 11 of the US Code, Fair Debt Collection Practices Act 1977 (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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