(Bankr. E.D. Ky. Nov. 22, 2016)

The bankruptcy court grants the creditor’s motion to modify the stay to allow the creditor to proceed with the state court real property foreclosure action. The court finds that cause exists for stay relief for reasons including that this second bankruptcy filing by the debtor was pending for three months, the debtor’s plan depended on a sale of the property, the debtor had not taken any action to proceed with the sale, and there was no proof that the debtor’s spouse (co-owner of the property) would consent to the sale. Opinion below.

The Bankruptcy Code gives a trustee the power to avoid pre-petition fraudulent and preference transfers made by a debtor, except that a trustee may not avoid a transfer that is "made by or to (or for the benefit of)" a party enumerated in 546(e) of the Code "in connection with a securities contract." Although 546(e) has been applied in various circumstances, there is little court guidance on whether 546(e) protects transfers made to repay commercial mortgage-backed securities ("CMBS") loans. One case in particular has applied 546(e) to dismiss such an avoidance action: Krol v.

The proposed bankruptcy sale of Golfsmith International Holdings to Dick’s Sporting Goods was recently approved, after the privacy ombudsman recommended that almost 10,000,000 consumer records (i.e., the personal information of consumers) of Golfsmith International Holdings can be transferred to Dick’s Sporting Goods.

In a decision released on November 17, 2016, the Third Circuit Court of Appeals reversed the holding of the Delaware Bankruptcy Court, affirmed by the District Court, that EFIH is not required to pay make-whole payments. In re Energy Future Holdings Corp., 16-1351, _ F.3d _ (3d Cir. Nov. 17, 2016).

Summary of Facts

In a recent decision (“Energy Future Holdings”) poised to have wide-reaching implications, the Third Circuit Court of Appeals reversed the decisions of the Bankruptcy and the District Courts to hold that a debtor cannot use a voluntary Chapter 11 bankruptcy filing to escape liability for a “make-whole” premium if express contractual language requires such payment when the borrower makes an optional redemption prior to a date certain.

A recent decision by Judge Sontchi in the Bankruptcy Court for the District of Delaware casts some light on the methods that representatives of non-U.S. debtors can—and can’t—use to track down those who owe such debtors money.

The coming year will likely continue to be a tumultuous year for health care providers, suppliers, and payers, as they adapt to meet new challenges and market forces, particularly in light of the open questions as to the viability and continued existence of the Affordable Care Act (ACA) and recent comments made by members of the incoming Trump administration.

Debt indentures often contain what is known as a “make-whole” provision, which requires the borrower, upon an early repayment of the debt, to make an additional payment to the lender to compensate the lender for its anticipated, bargained-for interest rate yield over the entire debt term.

In a recent November 17, 2016 opinion, Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC, Case No. 16-1351, the Third Circuit Court of Appeals reversed two lower court opinions by holding that make-whole premiums can be enforceable even if the debt was automatically accelerated by a voluntary bankruptcy filing.

A debtor cannot recover sanctions or attorneys’ fees under 11 U.S.C. § 362(k) when the debtor admits to having suffered no actual damages and the filing of a motion for sanctions was not necessary to remedy a stay violation.[1] Denying the debtor’s motion for sanctions, the U.S.