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    Proceed with Caution: 11th Circuit Holds Debt Collectors May Face Penalties under FDCPA for Filing Proofs of Claims in Bankruptcy for Time-Barred Claims
    2016-06-01

    One of the more appealing aspects of the U.S. bankruptcy process is the relative ease in which parties in interest may file proofs of claim. In years passed all it took was to mail in a simple form to the bankruptcy court or claims agent and now it is even easier with the advent of email and electronic claims uploading. This relatively easy process, however, often comes with a plethora of invalid or unenforceable proofs of claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Debt, Consumer debt, Collection agency, Fair Debt Collection Practices Act 1977 (USA)
    Authors:
    Matthew Goren
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Blocking Member Provision in LLC Agreement Designed to Prevent Bankruptcy Filing Unenforceable
    2016-06-01

    A contractual waiver of an entity’s right to file for bankruptcy is generally invalid as a matter of public policy. Nonetheless, lenders sometimes attempt to prevent a borrower from seeking bankruptcy protection by conditioning financing on a covenant, bylaw, or corporate charter provision that restricts the power of the borrower’s governing body to authorize such a filing. One such restriction—a lender-designated “special member” with the power to block a bankruptcy filing—was recently invalidated by the court in In re Lake Mich.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Waiver, Limited liability company, Articles of incorporation, Bank of China, Second Circuit
    Authors:
    Mark A. Cody , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    US Special Purpose Vehicles’ Independent Directors and the Need for Fiduciary Duties
    2016-06-01

    Essentially all securitization structures utilize a bankruptcy remote entity, a/k/a special purpose entity (“SPE”), to reduce the lenders’ or investors’ exposure to a bankruptcy of the sponsor. A standard feature of SPEs is the appointment of an independent person (director, member, manager) to the body managing the SPEs. That independent person’s consent is required for “major decisions,” one of which is the filing of, or consenting to a bankruptcy of the SPE (hence the court’s reference to them as “blocking directors”).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, Fiduciary, Secured loan
    Location:
    USA
    Firm:
    Dechert LLP
    Seventh Circuit Rules That Prepetition Nonresidential Lease Termination Is Voidable “Transfer” in Bankruptcy
    2016-06-01

    Even before Congress added section 365(c)(3) to the Bankruptcy Code in 1984, it was generally understood that a nonresidential real property lease which has been validly terminated under applicable law prior to a bankruptcy filing by the debtor-former tenant cannot be assumed or assigned in bankruptcy. Moreover, the terminated leasehold interest is excluded from the debtor’s bankruptcy estate, and any action by the landlord to obtain possession of the formerly leased premises is not prohibited by the automatic stay.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Title 11 of the US Code, Seventh Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    It Ain’t Over Till (When?) — Finality of Bankruptcy Court Decisions
    2016-06-01

    The courts have long struggled with the question of whether particular orders entered by a bankruptcy court are final, and therefore appealable as a matter of right. It is generally recognized that a bankruptcy case is distinctly different from the usual civil case in that it is a framework within which a variety of disputes arise and are resolved. That distinction is recognized in 28 U.S.C. §158(d)(1), which provides that appeals as of right maybe taken not only from final judgments in cases but from “final judgments, orders, and decrees…in cases and proceedings….”

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Secured creditor, United States bankruptcy court, Seventh Circuit
    Authors:
    G. Christopher Meyer
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Vendor’s Checklist When a Customer Files for Bankruptcy
    2016-06-01

    Many vendors have had the unfortunate experience of a customer filing for bankruptcy.  If it hasn’t happened to you yet, it probably will at some point in the future.  There are certain steps a vendor should (or must) take to protect itself and maximize its opportunity to collect any debts owed by the customer.

    Filed under:
    USA, Insolvency & Restructuring, Jimerson & Cobb P.A., Bankruptcy, Debtor, Debt, United States bankruptcy court
    Authors:
    Austin B. Calhoun, Esq.
    Location:
    USA
    Firm:
    Jimerson & Cobb P.A.
    Duties of a Trustee Prior to Default: A Tale of a Lapsed UCC Filing
    2016-05-31

    A typical bond indenture provides that prior to the incurrence of an event of default, a trustee’s obligations are limited to those specifically set forth in the indenture. It is only following the occurrence of an event of default that the trustee’s duties of prudent conduct seem to ripen. This often leaves trustees and bondholders in a state of uncertainty over what actions, if any, a trustee may be obligated to take as the financial condition of an issuer worsens but has not yet crossed the default line. A recent case from the Eastern District of Pennsylvania, Becker v.

    Filed under:
    USA, Pennsylvania, Banking, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Interest, Bank of New York Mellon, Trustee
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Securing Lender Access to Insurance Proceeds in Bankruptcy
    2016-05-31

    In most financing transactions, particularly project finance transactions, lenders seek to obtain security over all of a borrower’s assets. One crucial asset that sometimes does not get sufficient attention is insurance proceeds. Lenders are accustomed to ensuring access to the borrower’s insurance coverage through “additional insured” or “loss payee” provisions.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Insurance, Haynes and Boone LLP, Bankruptcy, Debtor, Collateral (finance)
    Authors:
    Micah E. Skidmore
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Are you Covered? The Insured v. Insured Exclusion
    2016-05-31

    The availability of a debtor’s insurance policy can have a significant impact on its chapter 11 case. Indeed, in certain chapter 11 cases insurance proceeds may be a creditor’s only opportunity to potentially receive a recovery on meritorious claims. Relying on insurance proceeds, however, is not infallible. An insurance policy may, for example, contain a coverage exclusion that would preclude a claim. For instance, nearly all directors’ and officers’ liability insurance policies traditionally include an insured v.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Insurance, Litigation, Weil Gotshal & Manges LLP, Debtor, Liquidation, Liability insurance, Debtor in possession, Title 11 of the US Code
    Authors:
    Candace Arthur
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Current Case Law Update: Business Bankruptcy
    2016-05-31

    UNITED STATES SUPREME COURT Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015) Key Issue: Post-Stern v. Marshall, whether a Bankruptcy Court (as an Art. I court) has a proper delegation of authority from the District Court (as an Art. III court) to enter findings of fact and final orders on non-core issues upon the consent of the parties and, if so, whether consent must be express or may be implied? Holding: In a 5/1/3 opinion, relying heavily on Commodity Futures Trading Comm’n v. Schor, 478 U. S.

    Filed under:
    USA, Texas, Banking, Insolvency & Restructuring, Litigation, Carrington Coleman, Bankruptcy, Fraud, Article III US Constitution, United States bankruptcy court
    Location:
    USA
    Firm:
    Carrington Coleman

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