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    NY Court of Appeals’ Ruling Results in Account Debtor Owing Its Counterparty’s Debts Under UCC Article 9
    2023-02-02

    In Worthy Lending LLC v. New Style Contractors. Inc., the New York Court of Appeals held that a security interest includes a lender’s right to force the borrower’s account debtors to remit payments directly to the lender, regardless of whether an event of default exists. Further, the court clarified that the Uniform Commercial Code (UCC) does not provide a distinction between a security interest and an assignment.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Uniform Commercial Code (USA)
    Authors:
    Deborah J. Enea , Steven Soffer
    Location:
    USA
    Firm:
    Troutman Pepper
    Post Siegel Ruling: Second Circuit Joins the Tenth Circuit in Ordering Refunds for Overpayment of U.S. Trustee Fees
    2023-02-01

    In a previous blog post from June 2022, we discussed the Tenth Circuit’s post-Sigel decision in John Q. Hammons Fall 2006 LLC v. U.S. Trustee (In re John Q. Hammons Fall 2006 LLC), 15 F.4th 1011 (10th Cir. Oct. 5, 2021), which held that the government must pay a refund to a Chapter 11 debtor based on what the debtor would have paid over the same time were the case in a Bankruptcy Administrator district.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Federal Circuit, US Court of Federal Claims
    Authors:
    Shane G. Ramsey
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    2nd Circ. Ruling Confirms Equitable Ownership Viability
    2023-02-01

    What does it mean to own something? When should the law acknowledge that somebody really owns something, even if they don't formally own it?

    And when will courts recognize the economic reality that one person — say, a judgment debtor — in truth owns something, notwithstanding that person's painstaking efforts to keep formal legal title in the hands of others?

    The law has long recognized doctrines to disregard the existence, or pierc the veil, of corporate entities to which a debtor has transferred assets.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Omni Bridgeway, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York, U.S. Court of Appeals
    Authors:
    Jeff Newton
    Location:
    USA
    Firm:
    Omni Bridgeway
    Some Bankruptcy Law History: Debtor Benefits Are Always A Tough Sell (Part III, The Bankruptcy Code)
    2023-02-01

    Bankruptcy benefits for individual debtors are a tough sell—always have been. That’s because no one likes bankruptcy—unless they need it.

    But relieving people from debts in unfortunate circumstances is essential to our collective way of life in these United States. That’s always been true.

    What follows is the third of three installments on some history of bankruptcy laws through the ages, beginning with ancient times—and to the present in these United States.

    Bankruptcy Code

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, Coronavirus, US Congress, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Bankruptcy Court Issues Ruling on Ownership of Celsius Account Assets
    2023-01-31

    The concept of “property of the estate” is important in bankruptcy because it determines what property can be used or distributed for the benefit of the debtor’s creditors. Defined by section 541 of the Bankruptcy Code, “property of the estate” broadly encompasses the debtor’s interests in property, with certain additions and exceptions provided for in the Code. See 11 U.S.C. § 541. Difficult questions can arise in a contractual relationship between a debtor and a counterparty about whether an entity actually owns a particular asset or merely has some contractual right.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Bankruptcy, Cryptocurrency, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    The Year In Bankruptcy: 2022
    2023-01-31

    One year ago, we wrote that, in early 2021, it was widely anticipated that the unprecedented pressure the COVID-19 pandemic brought to bear on the U.S. economy would lead to a boom in corporate bankruptcy filings. That boom never materialized. Instead, business bankruptcy filings in the U.S. plummeted in 2021. That trend continued until the last quarter of 2022.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Employee Retirement Income Security Act 1974 (USA), Supreme Court of the United States
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    First Impressions: The Eleventh Circuit Examines 20-Day Administrative Expense Claims and the Subsequent New Value Preference Defense
    2023-01-31

    The Bankruptcy Code confers "administrative expense" priority status on the claims of vendors for the value of goods that are shipped in the ordinary course of business and received by a debtor within 20 days of filing for bankruptcy. It also provides vendors and other creditors with various defenses to the avoidance of preferential payments received from the debtor during anywhere from 90 days to one year before filing for bankruptcy, depending upon whether the creditor is an "insider" of the debtor.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Due diligence, Eleventh Circuit
    Authors:
    Mark G. Douglas , Nathan P. Yeary
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit: Bad Faith Does Not Overcome Deferential Business Judgment Standard Applied to Assumption or Rejection of Contracts in Bankruptcy
    2023-01-31

    The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for debtors and to maximize the value of the bankruptcy estate for the benefit of all stakeholders. Bankruptcy courts generally apply a deferential "business judgment" standard to the decision of a trustee or DIP to assume or reject an executory contract or an unexpired lease.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Fifth Circuit
    Authors:
    Mark A. Cody , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    European leveraged finance: Choosing the right path
    2023-01-31

    European leveraged finance markets paused for breath in 2022, due to rising interest rates, volatile geopolitics and a tightening of financial markets across the board—but what can we expect in 2023?

    Filed under:
    European Union, United Kingdom, USA, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Public, White & Case, Foreign direct investment, Private equity, Climate change, Supply chain, Carbon neutrality, Euribor, Bank of England
    Location:
    European Union, United Kingdom, USA
    Firm:
    White & Case
    Modified Chapter 11 Plan Required Re-Solicitation and Re-Voting
    2023-01-30

    A modification of a Chapter 11 bankruptcy plan on the eve of the hearing on confirmation of that plan requires re-solicitation of votes and re-voting if the modification materially and adversely affects a class of claims or interests, i.e., equity holders, according to the Eleventh Circuit’s opinion in In re America-CV Station Group, Inc., 56 F.4th 1302 (11th Cir. Jan. 5, 2023).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Eversheds Sutherland (US) LLP, Bankruptcy, Eleventh Circuit
    Authors:
    Thomas M. Byrne
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP

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