Fifth Circuit Rejects Breach of Fiduciary Duty and Fraudulent Transfer Claims
By Michael L. Cook*
Recently, the Eighth Circuit Court of Appeals issued a ruling that overdraft payments advanced by Banks which are later repaid by their customer constitute preferential transfers under the Bankruptcy Code. In re Agriprocessors, Inc., involved a meat packing company which periodically overdrew its bank accounts, and the bank issued provisional credit to cover the overdrafts. The bank initially denominated those overdrafts as “intraday” overdrafts until the midnight settlement deadline, at which point they became “true” overdrafts.
Innovation and creativity are essential for competitive advantage and success in a global economy. The attendant intellectual property assets are the product of substantial capital investment, and companies should carefully manage risks associated with such assets.
Providing an exception to the axiom that no good deed goes unpunished, a Texas bankruptcy court recently declared nondischargeable a debt owed to a guarantor who had been forced to pay the debtor’s defaulted student loan.
The Eleventh Circuit recently reaffirmed the “person aggrieved” doctrine in In re Petricca, 17-10325, 2018 WL 1020046, at *1 (11th Cir. Feb. 22, 2018). The person aggrieved doctrine provides that a person may appeal from a bankruptcy court’s order only if he is a person aggrieved by the order. The doctrine limits the right to appeal a bankruptcy court order to those parties having a direct and substantial interest in the question being appealed.
A 92-year-old landlord who leased a storefront to a marijuana dispensary will receive a new hearing after a court dismissed her bankruptcy caseon the grounds that acceptance of rent payments from the dispensary disqualified her from bankruptcy relief.
On March 20, the CFPB released updated FAQs to support the implementation of the 2016 Mortgage Servicing Final Rule. Specifically, the updated FAQs pertain to the mortgage-servicing provisions regarding bankruptcy, which are effective April 19. The CFPB released ten bankruptcy-related question and answers.
In the typical day-to-day experience in bankruptcy proceedings, the debtor’s ability to assume or reject executory contracts and leases under Section 365 of the Bankruptcy Code is seen from the sometimes-unfortunate perspective of the creditor.
Certified to the Privacy Shield? Great! So you’re done in terms of GDPR compliance, right? Think again.
As we have discussed in previous newsletters, no matter where you are in the world, the General Data Protection Regulation (GDPR) applies to you if you are collecting or processing personal data of any EU individual. The law goes into effect in May.