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    Nobleman and Lane revisted - reminder that wholly unsecured mortgages on a debtor's principal residence can be avoided
    2010-05-07

    Many bankruptcy practitioners are familiar with the general tenet that an obligation secured only by a mortgage on the Debtor’s principal residence is immune from modification or avoidance by the Debtor. Sections 1123(b)(5) and 1322(b)(2) of the Bankruptcy Code protect residential mortgages from being “stripped-down” to the value of the subject real estate or subjecting the terms of the underlying obligation to modification.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Frost Brown Todd LLP, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Collateral (finance), Federal Reporter, Mortgage loan, Title 11 of the US Code, Supreme Court of the United States, Sixth Circuit
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Lehman decision limits setoff rights in ISDA Master Agreements
    2010-05-07

    On May 5, 2010, the United States Bankruptcy Court for the Southern District of New York issued a decision declaring that a party’s right to setoff in an ISDA Master Agreement is unenforceable in bankruptcy unless strict mutuality exists. (Decision and Order).

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Debtor, Safe harbor (law), Debt, Default (finance), International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Jonathan P. Guy , Thomas C. Mitchell
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    When are goods received for the purpose of asserting administrative priority status under Section 503(b)(9) of the Bankruptcy Code?
    2010-05-06

    A bankruptcy court recently held that in order for a supplier of goods on credit to establish an administrative claim under Bankruptcy Code section 503(b)(9) in the bankruptcy case of its buyer, the supplier will need to show that its buyer "physically" received the goods within 20 days prior to the buyer's bankruptcy filing, regardless of when title to the goods passed. In Re Circuit City Stores, Inc., et al., Case No. 08-35653, No. 7149 (Bankr. E.D. VA April 8, 2010).

    Filed under:
    USA, Virginia, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Retail, Credit (finance), Debtor, Unsecured debt, Prima facie, United States bankruptcy court
    Authors:
    Robert Sahyan
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Lehman bankruptcy court rules safe harbors do not override setoff mutuality requirement
    2010-05-06

    On May 5, 2009, Judge James Peck, the Bankruptcy Judge in the Lehman Brothers bankruptcy cases, held that the safe harbor provisions of the Bankruptcy Code do not override the mutuality requirements for setoff under section 553(a) of the Bankruptcy Code. As a consequence, the Bankruptcy Court prohibited Swedbank, a non-debtor counter party to a swap agreement, from setting off pre-petition claims against Lehman against funds collected for Lehman’s account postpetition. See In re Lehman Bros. Holdings Inc., Bankr. Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Waiver, Safe harbor (law), Swap (finance), Debt, Concession (contract), International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Ignorance is not bliss: court sanctions client and counsel for unfamiliarity with data systems
    2010-05-03

    According to the U.S. Bankruptcy Court for the Southern District of New York, a lack of bad faith is no longer a defense to court sanctions for failure to produce documents in a timely manner. That court, in In re A&M Florida Properties II, recently awarded sanctions against both a party and its counsel for the counsel’s failure to become familiar with the client’s email and data-retention policies and systems— despite the absence of any bad faith or willful delay.1

    Filed under:
    USA, New York, Insolvency & Restructuring, IT & Data Protection, Litigation, Morgan, Lewis & Bockius LLP, Motion to compel, Negligence, eDiscovery, Bad faith, Refinancing, Spoliation of evidence, United States bankruptcy court
    Location:
    USA
    Firm:
    Morgan, Lewis & Bockius LLP
    FDIC Notice of Proposed Rulemaking for safe harbor protection for securitizations
    2010-05-12

    On May 11, the Board of Directors of the FDIC approved a Notice of Proposed Rulemaking (the “NPR”) proposing a rule which would govern the treatment by the FDIC, as conservator or receiver of a failed insured depository institution (a “Bank”), of financial assets previously transferred by such Bank in a securitization or participation transaction. The proposed rule would create a safe harbor to confirm legal isolation of these financial assets if certain conditions are satisfied.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Securitization & Structured Finance, Orrick, Herrington & Sutcliffe LLP, Collateral (finance), Safe harbor (law), Board of directors, Interest, Accounting, Depository institution, Secured creditor, Federal Deposit Insurance Corporation (USA), FSAB, Credit rating agency, GAAP
    Authors:
    Howard S. Altarescu , Mark M. Racic
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Lehman court limits ISDA Master Agreement set-off rights
    2010-05-12

    On May 5th, the United States Bankruptcy Court for the Southern District of New York issued a decision declaring that a party's right to setoff in an International Swaps and Derivatives Association, Inc. ("ISDA") Master Agreement is unenforceable in bankruptcy unless "strict mutuality" exists.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Surety, Safe harbor (law), Debt, Default (finance), International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Time is running out to defer income recognition from debt-equity exchanges
    2010-05-11

    Restructures of financially distressed firms often involve debt-equity exchanges. The concept is straightforward: the company issues equity to its lenders in exchange for their cancellation of some of the company’s debt. The company’s debt burden and interest payment expenses are reduced and its balance sheet is strengthened.

    Filed under:
    USA, Insolvency & Restructuring, Tax, Stoel Rives LLP, Debtor, Security (finance), Interest, Limited liability company, Debt, Liquidation, Balance sheet, Election, Distressed securities, Internal Revenue Code (USA)
    Location:
    USA
    Firm:
    Stoel Rives LLP
    The next Chapter (11) in buying distressed hotels: bankruptcy sales
    2010-05-19

    These are tough times in the hotel business. The recession has squeezed room rates and net operating income. The credit crunch means new borrowing is available only at lower loan to value ratios near 50%, on already beaten down values. At the same time, many tens of billions of dollars of existing hotel loans are maturing or otherwise in default, leaving the owners with little ability to sell or refinance at for amounts sufficient to pay off existing debt.

    Filed under:
    USA, Insolvency & Restructuring, Leisure & Tourism, Farella Braun + Martel LLP, Bankruptcy, Debt, Foreclosure, Collective bargaining agreements, EBITDA, Refinancing, Default (finance), Secured loan, Credit crunch, Title 11 of the US Code
    Authors:
    Dean M. Gloster , Gary Kaplan
    Location:
    USA
    Firm:
    Farella Braun + Martel LLP
    Planning for valuation issues: the sooner the better
    2010-05-19

    Value is the central feature of any real estate restructuring, whether you are a debtor in need of cash, a creditor looking to recover collateral or an equity holder considering an additional investment.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Pillsbury Winthrop Shaw Pittman LLP, Debtor, Collateral (finance), Valuation (finance)
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP

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