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    Recent decisions underscore importance of carefully drafted make-whole premium provisions in loan documents
    2013-10-21

    What you need to know:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Choate Hall & Stewart LLP, Debtor, Debt, Refinancing, Second Circuit, United States bankruptcy court
    Authors:
    John F. Ventola , Douglas R. Gooding , Sean M. Monahan , Kevin J. Simard , Peter M. Palladino , Andrew J. Hickey
    Location:
    USA
    Firm:
    Choate Hall & Stewart LLP
    Detroit bankruptcy eligibility trial begins, art collection could hang in the balance
    2013-10-23

    Trial begins today in the U.S. Bankruptcy Court in Detroit over whether the city of Detroit is even eligible for the Chapter 9 bankrupcty protection it sought earlier this year.  The major point of contention is whether Detroit may, under the Michigan constitution, seek bankrupcty in a way that would reduce pension payments (as it would reduce payment to all its creditors).

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Sullivan & Worcester LLP, Balance sheet, United States bankruptcy court
    Authors:
    Nicholas O'Donnell
    Location:
    USA
    Firm:
    Sullivan & Worcester LLP
    Court holds that San Bernardino is eligible to file for Chapter 9
    2013-10-24

    On October 16, 2013, the U.S. Bankruptcy Court for the Central District of California ruled that the City of San Bernardino is eligible for protection under chapter 9 of the Bankruptcy Code.  In re City of San Bernardino, Cal., Case No. 12-28006, 2013 WL 5645560 (Bankr. C.D. Cal. Oct. 16, 2013).

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, US District Court for Central District of California
    Authors:
    Thomas Curtin , Mark C. Ellenberg , Lary Stromfeld
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bank has no obligation to inform borrower of bank’s impending failure
    2013-10-25

    One of the ironic issues for failing banks has been the fact that banks that they have had to continue to deal with their borrowers and depositors in the ordinary course of business even though they are already in the queue for resolution by the FDIC. So for example, loans continue to get renewed and documents executed. What happens if you renew a loan shortly before the bank fails, do you have some sort of defense to enforcement of the loan when the successor bank or the FDIC makes demand on you?

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Surety, Debtor, Fraud, Fiduciary, Federal Deposit Insurance Corporation (USA)
    Authors:
    Jerry Blanchard
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Japanese parent liable for unfunded benefits in subsidiary employer’s plan
    2013-10-25

    An employer that sponsors a single-employer defined benefit pension plan was acquired by a Japanese parent.  The employer entered into bankruptcy and, as part of the proceedings, the Pension Benefit Guaranty Corporation (the “PBGC”) terminated the pension plan.  The PBGC then sought in federal court to recover the amount of the unfunded liability from the Japanese parent.  The PBGC also sought payment of the termination premium designed to be payable when a reorganizing company emerges from bankruptcy and to collect that premium from the parent.  The pare

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Defined benefit pension plan, Pension Benefit Guaranty Corporation
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Recent bankruptcy developments impacting the landlord-tenant relationship
    2013-10-12

    In drafting the provisions of the Bankruptcy Code relating to nonresidential real property, Congress intended commercial landlords to be “entitled to significant safeguards.”1 Examples of the protections afforded to commercial landlords include requiring a debtor to remain current in its payment of post-petition rent;2 allowing landlords to drawdown on a letter of credit without prior bankruptcy court approval;3 permitting landlords to setoff pre-petition unpaid rent against a security deposit and/or lease rejection damages;4 recognizing that a tenant’s possessory rights in nonresident

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Faegre Drinker Biddle & Reath LLP, Bankruptcy, Debtor, Landlord, Leasehold estate, United States bankruptcy court
    Authors:
    Marita S.Erbeck
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath LLP
    “Bad boy” guaranties and bankruptcy: New York court enforces non-recourse carve-out guaranty
    2013-10-14

    A recent New York court decision has cleared the way for lenders to seek recovery against non-recourse carve-out, or “bad boy,” guarantors during a pending mortgage foreclosure action if a borrower files for bankruptcy. In so doing, the court answered a question that, surprisingly, was thus far apparently unanswered in a reported decision in New York: whether New York’s “one action rule” under RPAPL § 1301 bars a lender from obtaining a money judgment against a “bad boy” guarantor for the debt if a mortgage borrower files for bankruptcy while a foreclosure action is underway.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Bankruptcy, Debtor, Debt, Foreclosure
    Authors:
    John P. Doherty , Robert J. Sullivan
    Location:
    USA
    Firm:
    Alston & Bird LLP
    In re Residential Capital, LLC, et al.
    2013-10-01

    In a recent decision [1] arising from the In re Residential Capital LLC, et al.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Debtor
    Authors:
    William Hao
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Suit for misuse of investment funds does not allege act in performance of “mortgage broker services” within definition of “insured services”
    2013-10-08

    The United States District Court for the Northern District of Texas has held that underlying claims that the insureds misused investment funds intended for the purchase of nonperforming mortgages did not allege negligent acts, errors, or omissions in performing “mortgage broker services” within the policy’s definition of “Insured Services.”  Axis Surplus Ins. Co. v. Halo Asset Mgmt., LLC, 2013 WL 5416268 (N.D. Tex. Sept. 27, 2013).

    Filed under:
    USA, Texas, Capital Markets, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Breach of contract, Mortgage loan, Negligence
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Supreme Court leaves standing Seventh Circuit’s opinion in favor of Barnes & Thornburg lender client
    2013-10-08

    The Supreme Court of the United States denied a petition for writ of certiorari of the debtor, Castleton Plaza, LP, in Castleton Plaza, LP v. EL-SNPR Notes Holdings, LLC, Case No. 12-1422, meaning the prior opinion from the Seventh Circuit Court of Appeals in In the Matter of Castleton Plaza, LP, 707 F.3d 821 (7th Cir. 2013), remains intact, protecting creditors who are faced with being shortchanged by a reorganization plan proposed by a debtor that attempts to transfer the future ownership of the debtor to an insider without first putting the ownership stake up for auction.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Barnes & Thornburg LLP, Debtor, Interest, Standing (law), United States bankruptcy court, Seventh Circuit
    Authors:
    Alan K. Mills , David M. Powlen , Jonathan Sundheimer
    Location:
    USA
    Firm:
    Barnes & Thornburg LLP

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