報載曾為全球第二大的加密貨幣交易所FTX於2022年11月聲請美國破產法第11章破產重組，其破產重組計畫終於在2024年10月獲得美國德拉瓦州破產法院法官核准。受益於加密貨幣價值的大幅提升及美國國稅局同意減少稅捐債權之數額，FTX的用戶可獲得以破產當時加密貨幣的美元計價之賠償，若以此計算，大部分的用戶均可取回全額賠償及部分利息。

雖然仍有用戶認為加密貨幣現在之價值遠高於FTX破產時的價值，若無法返還用戶原本持有之加密貨幣，根本不算是全額賠償。但無論如何，在破產程序中債權人能獲得全額賠償及部分利息，是相當少見的狀況。

■美為讓債務人重獲新生，對稅捐債權保障可有所退讓

In Harrington v Purdue Pharma,¹ the United States Supreme Court held that so-called “non-consensual third-party releases” were not permitted in restructuring plans proposed under Chapter 11 of the US Bankruptcy Code. A “third-party release” arises where creditors are asked to vote on a restructuring plan or scheme which not only proposes to release the debtor company (i.e. the company that has petitioned for bankruptcy or is proposing the scheme) from all liability but to also release other third parties from any associated liability.

Introduction

The common law of assignments for benefit of creditors (“ABC”) has been around for centuries.

ABC is a business debtor’s voluntary liquidation tool—typically utilized in cooperation with a major secured creditor.

Historically, ABCs are attractive to debtors and creditors alike as an efficient, mostly out-of-court tool for maximizing the liquidation value of a business—for the benefit of creditors.

Situations Partner Kai Zeng in London Kai Zeng, who advises on cross-border restructurings and special situations matters, has joined the firm in London as a partner in the Restructuring Department and Finance and Hybrid Capital & Special Situations groups.

Kai advises sponsors, debtors, creditors and strategic investors on restructurings of stressed and distressed businesses, as well as hedge and credit funds, investments banks and private equity firms on their review and diligence of European investment opportunities in par, stressed and distressed transactions.

Section 548 of the bankruptcy code authorizes a trustee, debtor, or other appropriate party to avoid actual and constructive fraudulent transfers that occurred prepetition. In order to prove that a transfer was an actual fraudulent transfer, the trustee (or another appropriate plaintiff) must prove that the debtor made the transfer “with actual intent to hinder, delay or defraud any entity to which to debtor was or became…indebted.” 11 U.S.C. §548(a)(1)(A).

Does a Chapter 7 debtor have appellate standing to protect the homestead exemption?

That’s an issue addressed (sort of) in Karamoussayan v Massachusetts Department of Revenue (In re Karamoussayan), Case No. 22-041, First Circuit Bankruptcy Appellate Panel (decided April 11, 2024).

Chronology

Here’s a chronology.

September 9, 2022 — Debtor files a voluntary Chapter 13 petition

The Delaware Chancery Court placed Arrowood Indemnity Company in liquidation on November 8, 2023, by a liquidation order. The court found Arrowood to be insolvent by the court, and appointed a receiver to liquidate Arrowood’s assets, evaluate any claims made against Arrowood and evaluate the payment of claims made against it.

Background

An involuntary bankruptcy can be a powerful tool in a creditor's arsenal. Involuntary bankruptcies are rarely filed, however, because of the significant risk of liability for the petitioning creditor if the case is dismissed. A creditor considering filing an involuntary bankruptcy must understand the requirements for filing involuntary bankruptcy cases, which are strictly construed and applied, and be mindful of the associated risks.

In re Main Street Business Funding, LLC, No. 23-2430 (3d Cir. Sept. 5, 2024) (Ambro, J.), the Third Circuit confirmed that an all-assets lien that extends to after-acquired property does not extend to a borrower’s commercial tort claims unless described with sufficient particularity under the Uniform Commercial Code (“UCC”). The court also confirmed that commercial tort claims can constitute proceeds of collateral, but that the commercial tort claims here did not constitute proceeds of the loan at issue in the case.

Background