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    Bad news for debtors in single asset real estate Chapter 11 cases: the Buttermilk Towne Center decision prohibiting use of postpetition rents
    2011-02-07

    The Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals1 recently issued an opinion of importance in bankruptcy cases involving commercial real estate as the debtor’s only asset, such as a shopping center or office building.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Barnes & Thornburg LLP, Bond (finance), Bankruptcy, Debtor, Collateral (finance), Commercial property, Leasehold estate, Interest, Debt, Mortgage loan, Foreclosure, Default (finance), Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Authors:
    Patrick E. Mears , John T. Gregg
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP
    Meet the mess, cont'd -- former Governor Cuomo asked to mediate Madoff trustee's lawsuit against Mets owners
    2011-02-14

    Judge Burton Lifland, the bankruptcy judge overseeing the liquidation proceedings of Bernard L.

    Filed under:
    USA, Arbitration & ADR, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Limited liability company, Discovery, Mediation, Liquidation, Attorney's fee, Title 11 of the US Code, Trustee
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Hospital's bankruptcy examiner identifies millions of dollars in unauthorized payments; cites law firm for breach of duty
    2011-02-15

    In a case illustrating the effective use of a bankruptcy examiner, the examiner appointed by the court in the North General Hospital bankruptcy case has concluded that the hospital made over $3 million in unauthorized post-bankruptcy filing payments to the detriment of unsecured creditors. Prior to its bankruptcy filing, North General Hospital and certain related corporate debtors operated a hospital in the Harlem section of Manhattan.

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Wiley Rein LLP, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Fiduciary, Debt, Liquidation, Severance package, Title 11 of the US Code, Chief financial officer
    Authors:
    H. Jason Gold , Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    TOUSA: indirect benefits and impossible burdens - district court “quashes” bankruptcy court decision
    2011-02-15

    On February 11, 2011, the Hon. Alan Gold of the United States District Court for the Southern District of Florida reversed the October 30, 2009 fraudulent conveyance finding issued by the Bankruptcy Court in the TOUSA case as it pertained to lenders involved in TOUSA’s Transeastern joint venture.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bankruptcy, Credit (finance), Market liquidity, Debt, Liability (financial accounting), Joint venture, Subsidiary, Deutsche Bank, Title 11 of the US Code, United States bankruptcy court, Eleventh Circuit, US District Court for Southern District of Florida
    Authors:
    Seven Rivera , Thomas J. Hall , Thomas J. McCormack
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    United States district court overturns widely criticized fraudulent transfer decision – (In re TOUSA, Inc., No. 10-60017-CIV/Gold (S.D. Fla. Feb. 11, 2011))
    2011-02-16

    The United States District Court for the Southern District of Florida has reversed a bankruptcy court order that had required a group of lenders (“Transeastern Lenders”) to disgorge, as a fraudulent transfer, approximately $421 million paid to them by a joint venture partner (“TOUSA”) in satisfaction of their legitimate, uncontested loans to the joint venture that TOUSA had guaranteed. Together with pre-judgment interest, the total amount to be paid by the Transeastern Lenders was in excess of $480 million.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, Winston & Strawn LLP, Bond (finance), Bankruptcy, Interest, Market liquidity, Debt, Joint venture, Default (finance), Subsidiary, Memorandum opinion, Title 11 of the US Code, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    U.S. District Court affirms Lehman ruling raising concern on cross-affiliate netting
    2011-02-16

    A recent opinion by the U.S. District Court for the Southern District of New York affirms a 2010 ruling by the Lehman Brothers bankruptcy court, which rendered certain netting and setoff provisions unenforceable in bankruptcy. The core holding – that a counterparty cannot offset pre-petition and post-petition amounts – should come as no surprise to market participants.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Eversheds Sutherland (US) LLP, Bankruptcy, Safe harbor (law), Swap (finance), Concession (contract), Lehman Brothers cases, International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    TOUSA fraudulent transfer award against lenders reversed
    2011-02-16

    In a thorough appellate decision, a United States District Court in Florida has reversed the portion of a Bankruptcy Court’s determination that the repayment of over $400 million in loans was a fraudulent transfer. As discussed in more detail below, the decision is significant in the context of complex, multiple entity structures in determining (i) which affiliated entity (or unpaid creditors of that entity) can recover a transfer and (ii) what constitutes reasonably equivalent value for the transfer.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, White Collar Crime, Dentons, Bond (finance), Security (finance), Interest, Limited liability company, Debt, Joint venture, Remand (court procedure), Bench trial, Subsidiary, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Peter D. Wolfson , Robert E. Richards
    Location:
    USA
    Firm:
    Dentons
    Third Circuit affirms discounted cash flow as commercially reasonable measure of repurchase agreement damages claim
    2011-02-18

    The United States Third Circuit Court of Appeals (the "Third Circuit") issued an opinion on February 16, 2011 in the American Home Mortgage chapter 11 proceeding that upheld a determination by the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") on the valuation of a creditor’s claim that in connection with the termination and acceleration of a mortgage loan repurchase agreement.1 The decision is significant because the Third Circuit affirmed the Bankruptcy Court’s decision that the post-acceleration market value of the mortgage loans was not a relevant m

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dentons, Debtor, Statutory interpretation, Mortgage loan, Default (finance), Market value, Valuation (finance), Discounted cash flow, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Aimee M. Cummo , Hugh M. McDonald , E. Lee Smith
    Location:
    USA
    Firm:
    Dentons
    TOUSA fraudulent transfer decision reversed by district court
    2011-02-22

    Reversing a controversial decision and judgment of the bankruptcy court, the United States District Court for the Southern District of Florida has held that a group of lenders who received payment in settlement of their defaulted debt from the proceeds of new loans secured by the assets of certain subsidiaries of TOUSA, Inc. which were not themselves liable on that debt, did not receive fraudulent transfers.

    Filed under:
    USA, Florida, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, Katten Muchin Rosenman LLP, Debtor, Interest, Debt, Foreclosure, Good faith, Default (finance), Subsidiary, Title 11 of the US Code, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Florida district court sends strong message regarding expansive interpretation of fraudulent conveyance law in bankruptcy
    2011-02-18

    In a 113-page decision (click here to read decision) that is sure to be applauded by lenders and bond traders alike, Judge Alan S. Gold of the United States District Court for the Southern District of Florida, in overturning a Bankruptcy Court opinion that has caused lenders much concern, has issued a stern ruling that provides a bulwark against efforts by creditors and trustees in bankruptcy to expand the scope of the fraudulent conveyance provisions under the Bankruptcy Code.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bond (finance), Bankruptcy, Surety, Unsecured debt, Debt, Joint venture, Default (finance), Subsidiary, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Sandra E. Mayerson , Nicholas J. Brannick
    Location:
    USA
    Firm:
    Squire Patton Boggs

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