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    Debtor’s claim against lender and special servicer for breaching duty to act in good faith and to deal fairly survives motion to dismiss
    2013-10-15

    In Burcam Capital II, LLC v. Bank of America, N.A., et al, No. 13-00063-8 (Bankr. E.D. N.C. Oct. 1, 2013), an adversary proceeding filed in In re: Burcam Capital II, LLC, No. 12-04729-8, in the United States Bankruptcy Court for the Eastern District of North Carolina, the court held that the Debtor Plaintiff alleged sufficient facts to support a claim that its lender and the special servicer of the loan breached their duty to act in good faith and to deal fairly.

    Filed under:
    USA, North Carolina, Banking, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Good faith, Bank of America, United States bankruptcy court
    Authors:
    Lorraine Sarles
    Location:
    USA
    Firm:
    Alston & Bird LLP
    That makes two for the FDIC: 11th Circuit Court of Appeals issues another precedential decision interpreting tax sharing agreements in bankruptcy, awards ownership of tax refund to FDIC
    2013-10-16

    The Bottom Line: 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Federal Deposit Insurance Corporation (USA), Eleventh Circuit
    Authors:
    Daniel M. Eggermann
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Financial ruin and the duty to settle within policy limits
    2013-10-17

    A liability insurance company has the right to take over the defense of a policyholder and to control all settlement discussions.  What happens if the carrier fails to pursue settlement negotiations with sufficient zeal, knowing full well that it was leaving the insured exposed to liability above policy limits?  You may be at risk in California if your insurer does this to you.

    Filed under:
    USA, California, Insolvency & Restructuring, Insurance, Litigation, Kilpatrick Townsend & Stockton LLP, Liability insurance
    Authors:
    Carl A. Salisbury , Barry J. Fleishman
    Location:
    USA
    Firm:
    Kilpatrick Townsend & Stockton LLP
    Pensions trustees’ ‘loan to own’ strategy: a trend to come?
    2013-10-17

    Summary

    Eastman Kodak Corporation (Kodak US), the US parent of the Kodak group, filed for chapter 11 protection in the US on 19 January 2012. It successfully emerged from bankruptcy on 3 September 2013 as a new restructured technology company focused on imaging for businesses. Many other Kodak companies throughout the world were able to avoid following in their parent’s footsteps and were maintained as going concern businesses while the US bankruptcy process was ongoing.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Freshfields Bruckhaus Deringer, Pension Protection Fund, United States bankruptcy court
    Authors:
    Dawn Heath , Emma Gateaud , Julia Chirnside
    Location:
    USA
    Firm:
    Freshfields Bruckhaus Deringer
    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
    Artificial impairment: recent case law a warning for secured creditors
    2013-10-09

    In bankruptcy, cramdown is one of the biggest risks that a secured creditor faces. Through the power of cramdown, a debtor (or other plan proponent) can effectively restructure the claim of a secured creditor including to extend the maturity date, reduce the interest rate or alter the timing of repayment.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Arnold & Porter, Bankruptcy, Debtor, Maturity (finance), Good faith, Cashflow, Secured creditor, Title 11 of the US Code
    Authors:
    Benjamin Mintz , Jonathan Agudelo
    Location:
    USA
    Firm:
    Arnold & Porter
    Judgment on willful and malicious trade secret claim is not dischargeable in bankruptcy
    2013-10-09

    Bankruptcy is intended to provide a fresh start and discharge outstanding debt.  But some debt is not dischargeable in bankruptcy.  A Virginia bankruptcy court held last week that a judgment against the debtor for intentional trade secret misappropriation is not dischargeable.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Debtor, Injunction, Embezzlement, US Code
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Second Circuit in AMR Corp. – “no make-whole” based on plain meaning of indentures and discusses consequences of section 1110 payments
    2013-10-11

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Default (finance), Title 11 of the US Code, Second Circuit
    Authors:
    Benjamin C. Wolf
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    A safe harbor for trustees and bondholders: using section 546(e) to protect trustees and bondholders from avoidance actions
    2013-10-12

    Section 546(e) of the Bankruptcy Code offers a strong defense for holders of bonds, notes and other securities to preference and fraudulent transfer actions brought in bankruptcy proceedings. Essentially, any payment made to settle or complete a securities transaction, including repurchases and redemptions of bonds, notes and debentures, is protected from avoidance under the Bankruptcy Code. For many years, however, this powerful defense was rarely used. When the defense was raised, it was usually in the context of protecting payments made in leveraged buy-outs.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Faegre Drinker Biddle & Reath LLP, Bond (finance), Bankruptcy, Security (finance), Commodity broker, Liquidation, Debenture, Commercial paper
    Authors:
    Andrew E. Weissman
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath LLP

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