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    Delaware bankruptcy court upholds make-whole claim equal to 37 percent of loan principal
    2013-04-26

    A lender’s right to recover a make-whole premium as part of its allowed claim in a bankruptcy case has been the subject of several recent court decisions. A Delaware bankruptcy court recently allowed a make-whole premium of $23.7 million on a $67 million term loan[1] and found that the premium was not “plainly disproportionate” to the creditor’s possible loss. As a result, the make-whole was not an unenforceable penalty under New York law. In re School Specialty, Inc., No. 13-10125, Slip Op. (Bankr. D. Del. Apr. 22, 2013).[2]

    Facts

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Interest, United States bankruptcy court
    Authors:
    David M. Hillman
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Where do your interests lie under Chapter 15 of the Bankruptcy Code?
    2013-04-30

    When doing business with a foreign company, it is important to identify the company’s “center of main interests” (“COMI”) as creditors may find themselves bound by the laws of the COMI locale. If a company initiates insolvency proceedings outside the U.S., it must petition a U.S. court under Chapter 15 of the Bankruptcy Code for recognition of the foreign proceeding.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mintz, Debtor, Liquidation, Title 11 of the US Code, Second Circuit
    Authors:
    Eric R. Blythe
    Location:
    USA
    Firm:
    Mintz
    Ambac seeks bankruptcy court approval of settlement with government resolving dispute arising out of tax treatment of credit default swaps
    2013-04-30

    On April 9, 2013, Ambac Financial Group, Inc. (“Ambac”) submitted a proposed settlement with the United States to the U.S. Bankruptcy Court for the Southern District of New York. If approved, the proposed settlement would resolve more than two years of litigation concerning the tax treatment of losses sustained by Ambac in connection with credit default swap contracts entered into during the 2008 financial crisis. The settlement would result in a payment by Ambac to the Government of $101.9 million, as well as possible future additional payments of up to $14.9 million.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Swap (finance), Credit default swap, United States bankruptcy court
    Authors:
    Thomas A. Humphreys , Stephen L. Feldman , Remmelt A. Reigersman , David J. Goett , David N. de Ruig
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    New agency guidance on resolution plans of U.S. and foreign banking organizations: moving to the hard questions
    2013-04-22

    On April 15, 2013, the Board of Governors of the Federal Reserve System (Federal Reserve) and the Federal Deposit Insurance Corporation (FDIC) issued additional guidance (Guidance) with respect to the 2013 resolution plan submissions of the U.S. and foreign banking organizations that filed their initial resolution plans on July 1, 2012 (First-Round Filers).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Gibson Dunn & Crutcher LLP, Federal Deposit Insurance Corporation (USA), Federal Reserve (USA)
    Authors:
    Alexander G. Acree , Kimble Charles Cannon , Arthur S. Long , C.F. Muckenfuss III , Colin C. Richard
    Location:
    USA
    Firm:
    Gibson Dunn & Crutcher LLP
    Chapter 11 single asset real estate cases dismissed for cause
    2013-04-16

    The United States Bankruptcy Appellate Panel of the 6th Circuit affirmed the Bankruptcy Court dismissal of five single – asset real estate Debtors’ Jointly Administered Chapter 11 cases under the “For Cause” dismissal provisions of the United States Bankruptcy Code, 11 U.S.C.A. § 1112 (b). see In re Creekside Senior Apartments, LP, et al., 2013 WL 1188061 (6th Cir. BAP Ky.)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Duane Morris LLP, Secured creditor, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Walter J. Greenhalgh
    Location:
    USA
    Firm:
    Duane Morris LLP
    Strategies for avoiding the headache of preference liability
    2013-04-17

     

    Although business bankruptcy filings have trended down in recent months, the lingering legacy of litigation prompted by the surge in filings at the outset of the U.S. financial crisis remains with us and continues to strike many general counsel with unexpected actions for recovery of payments made by the debtor in the run-up to a Chapter 11 case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy, Debtor, Debt
    Authors:
    James J. Holman
    Location:
    USA
    Firm:
    Duane Morris LLP
    Center of main interest – the Second Circuit weights in
    2013-04-18

    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) introduced the most comprehensive amendments to United States bankruptcy law in 25 years.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Liquidation, Second Circuit
    Authors:
    Sharon L. Levine , S. Jason Teele , Cassandra M. Porter
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    Court allows creditor to garnish top-hat plan benefits
    2013-04-18

    In Sposato v. First Mariner Bank, 2013 WL 1308582 (D. Md.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Winston & Strawn LLP
    Authors:
    Michael S. Melbinger
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Always be prepared: forecasting a business partner's financial problems and how to prepare
    2013-04-18

    As the American economy continues to slog through the ongoing Great Recession, even financially sound companies face challenges due to the continued economic malaise. In particular, a company that works with suppliers, customers and other business partners facing financial troubles needs to be prepared to handle the consequences of others' fiscal problems. Being attuned to signs of distress and taking defensive actions early can help strong companies avoid problems and be better positioned in the case of a significant event, such as a business partner filing for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, BakerHostetler, Bankruptcy, Debt
    Authors:
    Donald A. Workman , Christopher J. Giaimo , Dena S. Kessler
    Location:
    USA
    Firm:
    BakerHostetler
    Claims trading from the inside out: Ninth Circuit BAP holds that a non-insider claimant's vote on a plan is not discounted merely because the claimant purchased its claim from an insider
    2013-04-18

    In an unpublished decision in In re The Village at Lakeridge, LLC, BAP Nos. NV-12-1456 and NV-12-1474 (B.A.P. 9th Cir. Apr. 5, 2013), the United States Bankruptcy Appellate Panel of the Ninth Circuit held that a vote on a plan of reorganization submitted by a non-insider claimant is not to be disregarded under Bankruptcy Code section 1129(a)(10) merely because the claimant purchased the claim from an insider. In other words, the transferee of a claim does not step into the shoes of the transferor vis à vis the transferor’s status as an insider.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Debtor, Secured creditor, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    Michael M. Lauter
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP

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