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    TOUSA 3.0: Eleventh Circuit holds lenders to high standards
    2012-06-01

    In a much anticipated opinion,In re TOUSA, Inc., --- F.3d ----, 2012 WL 1673910 (11th Cir. May 15, 2012), the Eleventh Circuit Court of Appeals has resolved a disagreement between the Bankruptcy Court and District Court for the Southern District of Florida by upholding the Bankruptcy Court’s findings—to the chagrin of lenders, who are now arguably exposed to new liabilities and higher standards of due diligence.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Mintz, Federal Reporter, Liability (financial accounting), United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Mintz
    Supreme Court affirms secured creditors’ credit bid rights under plan
    2012-06-01

    The United States Supreme Court unanimously[1] held that secured creditors have a statutory right to credit bid their debt at an asset sale conducted under a so-called "cramdown" plan. RadLAX Gateway Hotels, LLC et al., v. Amalgamated Bank (In re River Road Hotel Partners, LLC),__S.Ct.__ No. 11-166, 2012 WL 1912197 (U.S. May 29, 2012).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Credit (finance), Debtor, Collateral (finance), Federal Reporter, Secured creditor, Supreme Court of the United States
    Authors:
    Lawrence V. Gelber , James T. Bentley
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    For bankruptcy fraud, it's not material
    2012-06-01

    Misstatements in bankruptcy filings need not be material to run afoul of 18 U.S.C. 1519, according to this opinion from the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Day Pitney LLP, Bankruptcy
    Location:
    USA
    Firm:
    Day Pitney LLP
    Supreme Court confirms that secured creditors have a presumptive right to “credit bid” in a sale of their collateral conducted pursuant to a Chapter 11 bankruptcy plan
    2012-06-01

    On May 29, 2012, the United States Supreme Court issued its much-anticipated decision in the Chapter 11 bankruptcy cases for RadLAX Gateway Hotel, LLC and its affiliate (together, the “Debtors”). The Court held that when a debtor proposes to sell a secured creditor’s collateral free and clear of the creditor’s lien pursuant to a Chapter 11 bankruptcy plan, the debtor cannot deny the creditor the opportunity to “credit bid” in the sale without cause.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Statutory interpretation, Secured creditor, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    Raniero D'Aversa , Jonathan P. Guy , James W. Burke
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Bankruptcy Court determines that property transfer by corporation in which debtor holds a 50% interest does not constitute a transfer of assets of the bankruptcy estate
    2012-06-01

    The United States Bankruptcy Court for the District of New Jersey recently found that a debtor’s transfer of property owned by a corporation in which the debtor allegedly held a 50% interest did not automatically constitute a transfer of assets of the debtor’s bankruptcy estate. After the debtor filed a voluntary Chapter 7 bankruptcy petition, the Chapter 7 trustee filed an adversary complaint alleging that the debtor purposefully had executed a post-petition mortgage lien on certain real property owned by a corporation of which the debtor was a 50% owner.

    Filed under:
    USA, New Jersey, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Bankruptcy, Debtor, Interest, United States bankruptcy court
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Supreme Court protects credit bid in hotel bankruptcy
    2012-06-01

    How Does RadLAX Impact Conventional Chapter 11 Plan Structures?

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Proskauer Rose LLP, Bankruptcy, Debtor, Collateral (finance), Interest, Federal Reporter, Federal Communications Commission (USA), Bank of New York Mellon
    Authors:
    Martin J Bienenstock , Irena M Goldstein , Timothy Q Karcher
    Location:
    USA
    Firm:
    Proskauer Rose LLP
    Unanimous Supreme Court rules that chapter 11 debtors cannot use bankruptcy code’s “cramdown” provisions to eliminate a secured creditor’s right to credit bid
    2012-05-31

    In a major victory for secured creditors, the United States Supreme Court, on May 29, 2012, unanimously held that a chapter 11 plan involving a sale of secured property must afford the secured creditor the right to credit bid for the property under section 363(k) of title 11 of the United States Code (the “Bankruptcy Code”).1 In so holding, the Supreme Court resolved the split that had emerged among the United States Circuit Courts of Appeals, as illustrated by the Seventh Circuit’s decision below,2 which contrasted with recent decisions from the Third and Fifth Circui

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Thompson Hine LLP, Credit (finance), Debtor, Secured creditor, US Code, Title 11 of the US Code, Supreme Court of the United States, Seventh Circuit
    Authors:
    Alan R. Lepene , Andrew L. Turscak, Jr. , James Henderson
    Location:
    USA
    Firm:
    Thompson Hine LLP
    11th Circuit reinstates Tousa fraudulent transfer decision
    2012-05-29

    Litigation arising from the Tousa, Inc. fraudulent transfer claims has been working its way through the legal system since 2009, and the recent decision issued by the 11th Circuit Court of Appeals (the “11th Circuit”), has significant ramifications for any party holding debt, whether that debt is secured, unsecured, original issue or purchased on the secondary market. Regardless of the type of debt, or its source, Tousa illustrates that lenders must heighten their due diligence efforts to protect themselves from the risk of a lawsuit alleging fraudulent transfer liability.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, Unsecured debt, Collateral (finance), Due diligence
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Supreme Court upholds credit bidding in what it calls an “easy case”
    2012-05-31

    In a decision of considerable importance for bankruptcy debtors and lenders, the Supreme Court handed down its ruling earlier today in RadLAX Gateway Hotel, LLC v. Amalgamated Bank, --- S.Ct. ----, 2012 WL 1912197 (2012). In this highly anticipated decision, the Supreme Court held that a debtor may not confirm a plan under the “cramdown” provision of 11 U.S.C. § 1129(b)(2)(A) where the plan proposes to sell a secured lender’s collateral without affording the creditor the opportunity to credit-bid for the collateral.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Locke Lord LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Consideration, Secured creditor, Secured loan
    Authors:
    Jason Marechal Cerise , Joseph B. DiRago
    Location:
    USA
    Firm:
    Locke Lord LLP
    Supreme Court resolves conflict in circuit courts regarding credit bidding
    2012-05-29

    On May 29, 2012, the United States Supreme Court resolved a split among the federal courts of appeals on an important bankruptcy issue, agreeing with arguments Morrison & Foerster advanced on behalf of Amalgamated Bank. In a unanimous opinion in RadLAX Gateway Hotel, LLC v. Amalgamated Bank,1 the Court held that a Chapter 11 plan of reorganization that provides for a sale of a secured creditor’s collateral free and clear of liens must afford that secured creditor the right to credit bid.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Debtor, Collateral (finance), Secured creditor, Supreme Court of the United States
    Authors:
    Deanne E. Maynard , Adam Lewis , Norman S. Rosenbaum
    Location:
    USA
    Firm:
    Morrison & Foerster LLP

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