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    Delaware District Judge Addresses the Not-So-Safe Harbor of Section 546(e)
    2018-01-16

    Delaware District Judge Leonard P. Stark has seemingly split with the Second Circuit and held that the safe harbor in Section 546(e) of the Bankruptcy Code does not bar fraudulent transfer claims brought on behalf of creditors under state law, ratifying a June 2016 opinion from Delaware Bankruptcy Judge Kevin Gross.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Safe harbor (law)
    Authors:
    Shane G. Ramsey , David M. Barnes, Jr.
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Retail Bankruptcies Likely to Increase
    2017-09-25

    Filed under:
    USA, Insolvency & Restructuring, Nelson Mullins Riley & Scarborough LLP
    Authors:
    Shane G. Ramsey
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Good Problems to Have: Recovery of Interest by Unsecured Creditors of a Solvent Chapter 11 Debtor
    2022-04-18

    The Bankruptcy Protector

    Imagine this: you sell a product to a company on credit at 8% interest until you are paid, and the company files for bankruptcy before repayment. Or maybe you are a hard money lender that made an unsecured loan at 18% to a company to bridge through hard times, and the company files for bankruptcy. Or maybe you are a secured creditor with a 5% loan on real estate, and after the borrower files for bankruptcy, you discover there is a defect in your mortgage and your lien can be stripped.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Not So Fast! How Poor Planning Can Doom Your Chapter 11 Filing
    2021-12-30

    A Texas bankruptcy court’s decision earlier this year to dismiss the National Rifle Association’s (“NRA”) chapter 11 bankruptcy case as a bad faith filing illustrates the perils of a poorly planned chapter 11 filing, and highlights the need, even in crisis situations, to establish solid objectives and develop a sound strategy prior to seeking relief under the Bankruptcy Code. In re Nat’l Rifle Ass’n of Am., 628 B.R. 262 (Bankr. N.D. Tex. 2021).

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Corporate governance
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Bankruptcy Venue — Between a Rock and a Hard Place
    2021-08-23

    The Bankruptcy Protector

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Coronavirus
    Authors:
    Gary M. Freedman
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    When is a “Mere Conduit” More Than A “Mere Conduit”? The Second Circuit Has a Clue
    2020-01-21

    Section 546(e) of the Bankruptcy Code is a safe harbor provision that establishes that a trustee or debtor-in-possession may not avoid a transfer “by or to... a financial institution.. in connection with a securities contract” other than under an intentional fraudulent conveyance theory. On December 19, 2019, the Second Circuit in Note Holders v.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Nelson Mullins Riley & Scarborough LLP, Title 11 of the US Code
    Authors:
    Shane G. Ramsey , John T. Baxter
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    First Circuit Provides ‘Guidance’ on Challenging Puerto Rico’s Debt Restructuring Statute
    2019-07-09

    At the very end of a recent opinion, the First Circuit seemingly provided guidance on how bondholders can attack the constitutionality of Puerto Rico’s debt restricting act, PROMESA (The Puerto Rico Oversight, Management, and Economic Stability Act). However, the apparent guidance offered by the First Circuit may only be fool’s gold.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, US Congress
    Authors:
    Graham Mitchell
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Supreme Court to Consider Limitation on Bankruptcy Trustee Avoidance Powers: Transfers Through "Conduits" at Issue
    2017-12-12

    In bankruptcy, one of the “powers” granted to a trustee is the ability to undo previously completed transactions in order to facilitate payments to creditors. However, the Bankruptcy Code prevents a trustee from unwinding certain types of transactions. The safe harbor provision of 11 U.S.C. § 546(e) protects financial institutions performing securities transactions from having to disgorge payments initially made by a now bankrupt company.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Title 11 of the US Code, SCOTUS, US District Court for Northern District of Illinois
    Authors:
    H. Jason Gold , David M. Barnes, Jr.
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Despite Jevic, Priority Skipping Found to be Permitted as Part of Final Approval of DIP Financing
    2017-09-19

    In In re Short Bark Industries Inc., 17-11502 (Bankr. D. Del. Sept. 11, 2017), Judge Kevin Gross of the United States Bankruptcy Court for the District of Delaware read the Supreme Court’s holding in Jevic narrowly in connection with a settlement of a dispute on DIP financing.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP
    Authors:
    Shane G. Ramsey
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Reviewing Late Payments for an Ordinary Course Defense
    2022-04-11

    The Bankruptcy Protector

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Bankruptcy
    Authors:
    Keith Poston
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP

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