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    Can a claims purchaser acquire claims free of defects?
    2012-06-22

    The Delaware bankruptcy court in the KB Toys, Inc. cases recently held that a claims purchaser takes a claim subject to certain disabilities of the claim as held by the seller, regardless of whether the claim transfer is deemed a “sale” or an “assignment.” SeeIn re KB Toys, Inc., Case No. 04-10120 (KJC) (Bankr. Del. May 4, 2012). In so ruling, the Delaware court’s decision is somewhat at odds with the decision issued by the District Court for the Southern District of New York in the Enron bankruptcy cases. See Enron Corp. v.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bankruptcy, Good faith, Enron, US District Court for the Southern District of New York
    Authors:
    Christy L. Rivera
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Beyond mere subordination: are your waivers worth the paper they are printed on?
    2012-06-22

    After several years of unusually few corporate defaults, there has recently been an uptick in corporations failing to satisfy their bond and loan obligations. In a number of cases, the debts in question are part of multiple-lien or multi-tranche financing structures that incorporate complex subordination packages. The agreements at issue often go beyond merely subordinating rights to payments.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Debt, US District Court for the Southern District of New York
    Authors:
    Eric Daucher
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    An oversecured lender’s right to default interest and late payment penalties
    2012-06-22

    It is common for lenders to require borrowers to agree to pay a higher interest rate, known as the default rate, following an event of default under a loan. Some loan agreements also require the borrower to pay a fee in the event of a late payment. If the borrower files for bankruptcy protection, the Bankruptcy Code affords special protection to secured creditors with respect to collecting interest.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Debtor, Interest, Real estate investment trust, Default (finance)
    Authors:
    Marc B. Roitman
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    PBGC asks bankruptcy court to treat prior sale of interest in debtor as prohibited attempt to evade ERISA pension liability
    2012-06-22

    The Pension Benefit Guaranty Corporation (PBGC) filed an objection on June 14, 2012, in the Delaware bankruptcy court proceedings of RG Steel ("Debtor"), challenging a recent sale by RG Steel's parent entity ("Parent") of a 25-percent ownership stake in the Debtor. If the sale is respected, Parent would fall outside of the Debtor's "controlled group" under the Employee Retirement Income Security Act (ERISA), with the result that Parent may cease to have joint liability for the Debtor's unfunded pension obligations.

    Filed under:
    USA, Delaware, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Interest, Pension Benefit Guaranty Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Duane Morris LLP
    The challenge of resolving future claims in bankruptcy
    2012-06-22

    It is common knowledge that the Bankruptcy Code provides a debtor with a “fresh start” by allowing it to discharge prepetition claims. Similarly, section 363 of the Bankruptcy Code allows a trustee or debtor in possession to sell property of the estate “free and clear” of prior claims. These two concepts, while relatively straightforward, raise a fundamental question — when does a creditor hold a “claim” for purposes of the Bankruptcy Code?

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bankruptcy, Debtor, Due process, Debtor in possession, Title 11 of the US Code
    Authors:
    Michael Distefano
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Not required, but still appropriate - Judge Glenn appoints examiner in ResCAP
    2012-06-22

    The chapter 11 case of mortgage lender and servicer Residential Capital, LLC (“ResCap”) is fascinating on a number of levels. Its parent company, Ally Financial, Inc.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Kelley Drye & Warren LLP
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    The Supreme Court confirms that secured creditors have the right to credit bid in plan sales
    2012-06-22

    In the 2010 decision of In re Philadelphia Newspapers, 599 F.3d 298 (3d. Cir. 2010), the Third Circuit Court of Appeals concluded that a plan proponent could deny a secured creditor the right to credit bid on its collateral when the sale was made pursuant to a plan of reorganization. That holding was a surprise to many given that secured creditors were specifically authorized to credit bid in stand-alone sales under section 363 of the Bankruptcy Code. A year or so later, another circuit court, the Seventh Circuit Court of Appeals, came to the opposite conclusion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Debtor, Federal Reporter, Secured creditor, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    Douglas E. Deutsch
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    FDIC and Treasury issue orderly liquidation rule
    2012-06-25

    On June 22nd, the Federal Deposit Insurance Corporation ("FDIC") and the Treasury Department issued a final rule on the calculation of the maximum obligation limitation ("MOL"), as specified in the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). The MOL limits the aggregate amount of outstanding obligations that the FDIC may issue or incur in connection with the orderly liquidation of a covered financial company. The new rule is effective July 23, 2012.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Winston & Strawn LLP, Federal Deposit Insurance Corporation (USA), US Department of the Treasury
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Vitro: Chapter 15 and the limits of comity: Texas bankruptcy court refuses to enforce third-party release provisions in Mexican plan of reorganization
    2012-06-25

    On June 13, 2012, Judge Harlin D. Hale of the United States Bankruptcy Court for the Northern District of Texas refused to enforce provisions of a Mexican plan of reorganization that purported to extinguish guarantees by the debtor’s non-debtor subsidiaries.  In refusing to enforce the non-debtor release, Judge Hale held both that the release of non-debtor guarantors was contrary to United States public policy and that the release did not merit enforcement under the specific criteria of chapter 15 for granting relief to a foreign debtor.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Injunction, Comity, United States bankruptcy court
    Authors:
    Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Who’s SARE-y now? No “whole business enterprise” exception to single asset real estate provisions of Bankruptcy Code
    2012-06-25

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Debtor, Bank of America
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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