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    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
    Third Circuit Clarifies the Inner Workings of Foreclosure on Repo Collateral
    2020-01-06

    In the fifth opinion involving the repo liquidation saga of HomeBanc, the Third Circuit addressed several crucial issues involving the liquidation and valuation of repo collateral in bankruptcy. In re HomeBanc Mortg. Corp., 2019 WL 7161215 (3d Cir. Dec. 24, 2019).

    Background

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    Appointing a Future Claims Representative: Recent Developments
    2019-10-11

    A New Jersey District Court recently addressed several issues in connection with the appointment of a future claims representative (“FCR”). In light of the recent increase in mass-tort bankruptcy cases, exploring these issues is timely.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Debtor, Title 11 of the US Code
    Location:
    USA
    Firm:
    Dechert LLP
    House Bill Would Amend the Bankruptcy Code to Provide for the Resolution of Large Insolvent Financial Institutions
    2017-04-06

    A U.S. House of Representatives Bill would amend the Bankruptcy Code to establish new provisions to address the special issues raised by troubled nonbank financial institutions.

    Please click here to view table

    Filed under:
    USA, Insolvency & Restructuring, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Recent Developments in Acquisition Finance
    2016-01-12

    Two recent court decisions may result in a broadening of the range of options available to an equity sponsor in respect of an insolvent portfolio company. The first decision may provide increased flexibility in structuring asset sales in certain chapter 11 settings, by utilizing escrows and other techniques to potentially avoid the need to apply asset-sale proceeds strictly in accordance with creditor priorities under the U.S. Bankruptcy Code.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Dechert LLP, Conflict of interest, Unsecured debt, Fiduciary, Title 11 of the US Code, Delaware General Corporation Law
    Authors:
    Jeffrey M. Katz , Scott M. Zimmerman
    Location:
    USA
    Firm:
    Dechert LLP
    6th Cir. BAP Holds In Rem Foreclosure Not Disguised In Personam Collection Effort
    2016-08-15

    The Bankruptcy Appellate Panel of the Sixth Circuit recently held that a condominium unit owners association did not violate a debtor’s Chapter 7 discharge order by scheduling a sheriff’s sale to complete a prepetition foreclosure.

    Rejecting the bankruptcy court’s conclusion that the in rem foreclosure sale was scheduled to induce payment of discharged pre-petition condominium fees, the Sixth Circuit BAP noted that “all foreclosure litigation potentially can induce payments of discharged debt to avoid a foreclosure sale.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Debt, Mortgage loan, Foreclosure, Condominium, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    8th Cir. BAP Holds Lien Against Only One Tenant by Entirety Avoidable in Bankruptcy
    2016-03-08

    The U.S. Bankruptcy Appellate Panel for the Eighth Circuit recently affirmed an order of the bankruptcy court granting a debtor’s motion to avoid a judgment creditor’s lien on the debtor’s residence held in tenancy by the entirety with his non-debtor spouse, holding because the lien “fixed” under the Bankruptcy Code and thus impaired the debtor’s claimed exemption, it was avoidable.

    A copy of the opinion is available at:  Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Title 11 of the US Code, Eighth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Coleman Braun
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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