In 2017, the U.S. Court of Appeals for the Second Circuit held in In re MPM Silicones, LLC that the appropriate interest rate for replacement notes issued to secured creditors under a “cramdown” Chapter 11 plan must be a market rate if an “efficient market” exists. If no such market exists, however, the formula rate (effectively, the prime rate plus 1-3 percent) must be applied.

On January 15th, 2019, the U.S. Bankruptcy Court for the Northern District of Ohio held that the end user of an electricity forward contact was not entitled to the benefits of the safe harbor provisions under Section 556 of the Bankruptcy Code. Section 556 allows a “forward contract merchant” to terminate a forward contract post-petition based on an ipso facto clause in the contract and exempts such actions from the automatic stay.

The U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage loan with a post-plan maturity date was not discharged in a Chapter 13 bankruptcy because the plan did not “provide for” the debt and modify the repayment terms of the mortgage.

The Eleventh Circuit also held that the debt was not discharged because discharge would violate 11 U.S.C. § 1322(b)(2)’s anti-modification provision for mortgages secured by the debtor’s principal residence.

Beauty Brands, LLC, along with two subsidiaries and affiliates, has filed a petition for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 19-10031).

Pursuant to 11 U.S.C. § 365, a debtor or bankruptcy trustee has the option, subject to court approval, of electing one of the following three alternatives with respect to an executory contract: (a) assuming the contract, (b) assuming and assigning the contract to a third party, or (c) rejecting the contract. Assumption of the contract, or assumption and assignment results in the agreement remaining in effect post-bankruptcy.

Pursuant to 11 U.S.C. § 1322(b)(2), a Chapter 13 bankruptcy plan cannot modify the rights of a secured creditor whose claim is only secured by an “interest in real property that is the debtor’s principal residence.” On December 6, the Eleventh Circuit held that this provision prevents the discharge of a mortgage in a Chapter 13 bankruptcy, regardless of whether the plan “provided for” the mortgage or whether the mortgagee filed a proof of claim.

Many of us were raised to believe that Santa Claus delivers our gifts before we wake up on Christmas Day. If you believe, behave, and send your wish list on time, you are virtually certain to receive what you want for Christmas. As we grow older, some of us (not me) begin to doubt the existence of Santa. But, with the growth of e-commerce within the last decade, no one can deny that more and more gifts are being delivered Santa-style. And for those who do not believe, well, the lesson has been costly. 

The Bottom Line

In In re ENNIA Caribe Holding N.V., 18-12908 (Bankr. S.D.N.Y. Dec. 20, 2018), a bankruptcy court in the Southern District of New York recognized a foreign insurance company’s rehabilitation proceeding in Curaçao as a “foreign main proceeding,” pursuant to Chapter 15 of the Bankruptcy Code, over objections from the insurance company’s nondebtor parent company. In doing so, the court examined, among other things, what is required for a “collective proceeding” in a foreign insolvency.

What Happened

Democrats now control both houses of the New York Legislature as well as the Governor’s office. A host of legislation may be in the offing. One expected piece of legislation will be passage of the Child Victim Act (CVA).

Background

The Bankruptcy Protector

On January 3rd, the United States Court of Appeals for the Tenth Circuit issued an opinion in U.S. v. Parish Chemical Company, in which it addressed the issue of equitable mootness in a non-bankruptcy appeal.

Facts of the Case