The Bottom Line

The purpose of bankruptcy is to provide for an orderly process by which a debtor’s assets can be fairly divided and distributed among creditors.

It is also meant to ensure that debtors can start fresh. Not all of a debtor’s assets are available to creditors—the Bankruptcy Code allows a debtor to keep certain assets safe in bankruptcy through various asset exemptions available under both state and federal law. One such exemption is Michigan’s bankruptcy-specific homestead exemption.

Lehman’s ‘unknown unknowns’, and the secrets that came to light

This article was first published on the Financial Times website on 10 September 2018.

When the administrators and lawyers walked into the Bank Street offices of Lehman Brothers on a sunny Sunday afternoon ten years ago, little did they know the complexity of the task which awaited them.

For all their vast experience, legal knowledge and financial acumen, this was a major challenge.

The Third Circuit denied a $275 million break-up fee to a bidder that was unsuccessful in its attempt to buy the crown-jewel assets in the high-profile EFH bankruptcy case. In re Energy Future Holdings Corp., No 18-1109, 2018 U.S. App. LEXIS 25945 (3rd Cir. Sept. 13, 3018). The court held that the bidder’s efforts didn’t result in a benefit to the debtors’ estates.

Federal bankruptcy judges, who are not appointed under Article III of the Constitution, do not have the power to enter a final judgment in all matters that come before them. Pursuant to 28 U.S.C. § 157(b)(2), they generally may enter a judgment in all cases under the Bankruptcy Code or in certain proceedings defined as “core proceedings.”

Bankruptcy

Legal Alert

Authors

George P. Angelich Partner New York, NY 212.457.5423 [email protected]

M. Douglas Flahaut Counsel Los Angeles, CA 213.443.7559 [email protected]

Kraus Carpet Inc., along with five subsidiaries and affiliates, has filed a petition for recognition of a foreign proceeding under chapter 15 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12057).

Joining the Fourth, Fifth, Eighth and Ninth Circuit Courts of Appeal, the Eleventh Circuit recently held that new value does not need to remain unpaid in order to support the subsequent new value defense in a preference action.  See Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC), Case No. 17-13588, 2018 WL 3850101 (11th Cir.

On August 14, 2018, the United States Court of Appeals for the Eleventh Circuit issued a decision holding that section 547(c)(4) of the Bankruptcy Code, which provides a defense to the avoidance of preferential transfers to the extent the transferee provided new value to the debtor,[1] does not require new value to remain unpaid as of the date the bankruptcy petition was filed.

Consider the common commercial loan collection situation: a business debt collateralized by relatively permanent collateral (real property or durable non-mobile equipment such as a printing press) and transient collateral (inventory, accounts receivable and cash).[1] Frequently, there is also potentially recoverable unsecured debt because the collateral is insufficient to pay the entire debt and (a) the collateral does not include all the borrower’s