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    The fallout from Cherryland - will the non-recourse carve-out guaranty ever be the same again?
    2012-06-12

    The Issue  

    The issue is whether the insolvency of a borrower under a non-recourse loan can trigger recourse liability for itself and its “bad boy,” non-recourse carve-out guarantors.  

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Haynes and Boone LLP, Debtor, Mortgage-backed security, Secured loan
    Authors:
    Trevor Hoffmann , Lawrence Mittman
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    RadLAX: credit bidding is cleared for takeoff by U.S. Supreme Court
    2012-06-05

    The U.S. Supreme Court in RadLAX Gateway Hotel, LLC v. Amalgamated Bank, ___ S. Ct. ___, 2012 WL 1912197 (May 29, 2012), held that a debtor may not confirm a chapter 11 "cramdown" plan that provides for the sale of collateral free and clear of existing liens, but does not permit a secured creditor to credit-bid at the sale. The unanimous ruling written by Justice Scalia (with Justice Kennedy recused) resolved a split among the Third, Fifth, and Seventh Circuits.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Limited liability company, Secured creditor
    Authors:
    Kevyn D. Orr , Beth Heifetz , Dan T. Moss
    Location:
    USA
    Firm:
    Jones Day
    In destabilizing decision for secured lenders, 11th Circuit reverses TOUSA district court
    2012-06-07

    On May 15, 2012, the Eleventh Circuit Court of Appeals issued a fraudulent transfer ruling in TOUSA, Inc.'s chapter 11 case with wide-ranging implications for the financing community. As discussed herein, this decision weakens protections for secured lenders, especially when extending credit to distressed borrowers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Pillsbury Winthrop Shaw Pittman LLP, Bankruptcy, Subsidiary, United States bankruptcy court, Eleventh Circuit
    Authors:
    Andrew M. Troop , Brandon R. Johnson
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP
    Walking in empty shoes: Fifth Circuit allows excess carrier’s contractual subrogation claim despite purported assignment of insured’s rights to a third-party claimant
    2012-06-08

    Where an insured has assigned away its rights to recover available insurance, the insured’s “empty shoes” do not necessarily prevent an excess carrier that pays defense costs rightfully owed by primary carriers from pursuing the primary carriers based a contractual subrogation theory.  An excess carrier proceeding on this basis typically “stands in the shoes of the insured,” obtaining only those rights held by the insured.  Nonetheless, the Fifth Circuit Court of Appeals found last week that where an excess carrier picks up the bill for an insured’s defense, it may recover fr

    Filed under:
    USA, California, Texas, Insolvency & Restructuring, Insurance, Litigation, Duane Morris LLP, Bankruptcy, Fifth Circuit
    Authors:
    Jason M. Horst
    Location:
    USA
    Firm:
    Duane Morris LLP
    Important secured creditor protection upheld by Supreme Court
    2012-06-08

    In a unanimous decision, on May 29, 2012, the Supreme Court of the United States upheld an important protection against “cramdown” afforded to lenders in Chapter 11 cases.RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. , No. 11-166 (May 29, 2012). In RadLAX, the Supreme Court held that a Chapter 11 debtor could not deprive a secured creditor of its right to credit bid for property to be sold under a plan of reorganization.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Holland & Knight LLP, Debtor, Interest, Secured creditor, United States bankruptcy court
    Authors:
    Richard E. Lear , John J. Monaghan
    Location:
    USA
    Firm:
    Holland & Knight LLP
    The TOUSA two-step: who gets to dance in bankruptcy?
    2012-06-04

    Occasionally we find a bankruptcy case that we know will be of interest to lenders, and this is one of them. I’m calling this one a “two-step” not just because it makes for a catchy title, but also because this is the second time we’ve seen this case, and this time the outcome is less favorable.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy
    Authors:
    Susan C. Alker
    Location:
    USA
    Firm:
    Reed Smith LLP
    U.S. Supreme Court resolves circuit split in favor of secured lenders’ credit-bid rights in chapter 11 bankruptcy cases
    2012-06-04

    The U.S. Supreme Court issued a unanimous decision on May 29, 2012, finding that a chapter 11 bankruptcy plan of liquidation is not confirmable over a secured lender’s objection if such plan prohibits the lender from credit bidding at a sale of its collateral.1 See RadLAX Gateway Hotel, LLC et al. v. Amalgamated Bank, No. 11-166, 566 U.S. ___ (2012).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Collateral (finance), United States bankruptcy court, Fifth Circuit, Seventh Circuit
    Authors:
    James B. Sowka
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Supreme Court confirms credit bid rights of secured creditors
    2012-06-04

    The United States Supreme Court, in the case of Radlax Gateway Hotel, LLC v. Amalgamated Bank (“Radlax”), ruled that secured creditors have the same right to credit bid in collateral sales under a plan of reorganization as they do in sales under Section 363 of the Bankruptcy Code (“Section 363 Sales”).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Manatt Phelps & Phillips LLP, Credit (finance), Debtor, Collateral (finance), Secured creditor, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    Carl L. Grumer
    Location:
    USA
    Firm:
    Manatt Phelps & Phillips LLP
    Supreme Court holds secured creditor has absolute right to credit bid at a plan sale
    2012-06-04

    Whether a secured creditor has an absolute right to credit bid at a sale under a chapter 11 plan has been the subject of conflicting decisions rendered by the Third, Fifth and Seventh Circuits.1 The United States Supreme Court has resolved these inconsistent rulings with its decision in RadLAX Gateway Hotel, LLC, et al., v. Amalgamated Bank, 2 which affirmed the Seventh Circuit’s holding that a secured creditor has an absolute right to credit bid in a sale under a chapter 11 plan.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Collateral (finance), Secured creditor, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    Alan W Kornberg , Stephen J. Shimshak , Alice Belisle Eaton
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Supreme Court clarifies lenders' right to credit bid
    2012-06-04

    In Radlax Gateway Hotel, LLC v.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Debtor, Supreme Court of the United States
    Authors:
    Stephen Selbst , Paul Rubin
    Location:
    USA
    Firm:
    Herrick Feinstein LLP

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