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    Lehman Brothers court, building on Semcrude and Swedbank decisions, denies triangular setoff by swap counterparty
    2011-10-11

    The United States Bankruptcy Court for the Southern District of New York (the Court), has held that section 553(a) of the Bankruptcy Code prohibits a swap counterparty from setting off amounts owed to the debtor against amounts owed by the debtor to affiliates of the counterparty, notwithstanding the safe harbor provision in section 561 of the Bankruptcy Code and language in the ISDA Master Agreement permitting the swap counterparty to effect “triangular” setoffs. In re Lehman Brothers Inc., Case No. 08-01420 (JMP)(SIPA) (Bankr. S.D.N.Y. October 4, 2011).

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Common law, UBS, Lehman Brothers, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Bankruptcy Court for Southern District of New York prohibits triangular setoff provided for in safe harbored contract
    2011-10-12

    On October 4, 2011, the United States Bankruptcy Court for the Southern District of New York ruled that a contractual right of a triangular (non-mutual) setoff was unenforceable in bankruptcy, even though the contract was safe harbored. In re Lehman Brothers, Inc., No. 08-01420 (JMP), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Concession (contract), Standing (law), Liquidation, Common law, UBS, Lehman Brothers, Title 11 of the US Code, Trustee, Delaware Supreme Court, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman bankruptcy court denies contractual right to three-party setoff in bankruptcy
    2011-10-05

    The Bankruptcy Court for the Southern District of New York has held that a cross-affiliate netting provision in an ISDA swap agreement is unenforceable in bankruptcy. In the SIPA proceedings of Lehman Brothers Inc. (LBI), UBS AG (UBS) sought to offset UBS’s obligation to return excess collateral to LBI against claims purportedly owed by LBI to UBS subsidiaries, UBS Securities and UBS Financial Services.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Collateral (finance), Foreign exchange market, Swap (finance), Concession (contract), Common law, Subsidiary, UBS, International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Howard S. Beltzer , Brian Trust
    Location:
    USA
    Firm:
    Mayer Brown
    Credit default swaps and the bankrupt counterparty — entering the undiscovered country
    2008-09-19

    The credit default swap (“CDS”) has never been tested in bankruptcy proceedings on any significant scale, particularly under recent amendments to the Bankruptcy Code. In part, this is because the CDS market is a very recent phenomenon. CDS market participants also make considerable efforts to avoid holding a credit default swap where the counterparty has gone into bankruptcy.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Caplin & Drysdale, Chartered, Bankruptcy, Credit (finance), Collateral (finance), Swap (finance), Hedge funds, Credit risk, Asset-backed security, Bailout, Default (finance), Collateralized debt obligation, Lehman Brothers cases, Credit default swap, UBS, International Swaps and Derivatives Association, Lehman Brothers, Bear Stearns, Title 11 of the US Code, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Caplin & Drysdale, Chartered
    Champerty clarified: a victory for activist distressed debt and claims investors
    2009-11-03

    In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Security (finance), Fraud, Accounts receivable, Interest, Mortgage loan, Foreclosure, Default (finance), Distressed securities, Mortgage-backed security, Commercial mortgage, Merrill, UBS, Second Circuit
    Authors:
    Lawrence V. Gelber , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Picard cannot make it so: Madoff trustee’s recoveries curtailed again
    2011-11-08

    In a client advisory sent by our office a few months ago, we described a decision in the Madoff saga in which the District Court for the Southern District of New York (the Court) closed off a potential avenue of significant recovery for the Madoff Trustee (the Trustee) and the Ponzi scheme victims by denying the Trustee standing to pursue certain claims against feeder funds – firms that sent investors’ funds to Madof

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Mintz, Bankruptcy, Security (finance), Fraud, Safe harbor (law), Standing (law), Good faith, Due diligence, Bad faith, Common law, Title 11 of the US Code, JPMorgan Chase, UBS, Westlaw, US District Court for SDNY, Trustee
    Location:
    USA
    Firm:
    Mintz
    Can a Noteholder Sue Under TIA § 316(b) to Recover Accelerated Debt?
    2017-02-28

    In a decision last month, DCF Capital, LLC v. US Shale Solutions, LLC (Sup. Ct. NY Co. Jan. 24, 2017), a New York State Supreme Court justice held that a noteholder that had properly accelerated indenture debt may sue to collect that debt notwithstanding the operation of a standard no-action clause. This holding, while appealing from a noteholder perspective, may not be compelled by Section 316(b) of the Trust Indenture Act on which it rests and is contrary to some prior case law.

    Background

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, UBS, Second Circuit, US District Court for SDNY, Tenth Circuit, New York Supreme Court
    Authors:
    Abbe L. Dienstag
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Bankruptcy Court for Southern District of New York prohibits triangular setoff provided for in safe harbored contract
    2011-10-12

    On October 4, 2011, the United States Bankruptcy Court for the Southern District of New York ruled that a contractual right of a triangular (non-mutual) setoff was unenforceable in bankruptcy, even though the contract was safe harbored. In re Lehman Brothers, Inc., No. 08-01420 (JMP), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Concession (contract), Standing (law), Liquidation, Common law, Title 11 of the US Code, UBS, Lehman Brothers, Delaware Supreme Court, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Mark C. Ellenberg , Peter M. Friedman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Champerty clarified: a victory for activist distressed debt and claims investors
    2009-11-03

    In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Security (finance), Fraud, Accounts receivable, Interest, Mortgage loan, Foreclosure, Default (finance), Distressed securities, Mortgage-backed security, Commercial mortgage, Merrill Lynch, UBS, Second Circuit
    Authors:
    Lawrence V. Gelber , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Lehman bankruptcy court denies contractual right to three-party setoff in bankruptcy
    2011-10-05

    The Bankruptcy Court for the Southern District of New York has held that a cross-affiliate netting provision in an ISDA swap agreement is unenforceable in bankruptcy. In the SIPA proceedings of Lehman Brothers Inc. (LBI), UBS AG (UBS) sought to offset UBS’s obligation to return excess collateral to LBI against claims purportedly owed by LBI to UBS subsidiaries, UBS Securities and UBS Financial Services.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Collateral (finance), Foreign exchange market, Swap (finance), Common law, Subsidiary, Title 11 of the US Code, UBS, International Swaps and Derivatives Association, Lehman Brothers, Delaware Supreme Court, United States bankruptcy court, US District Court for SDNY
    Authors:
    Howard S. Beltzer , Brian Trust
    Location:
    USA
    Firm:
    Mayer Brown

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