On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued a decision[1] in the much-watched litigation involving the residential construction company, TOUSA, Inc. ("TOUSA"). The decision reversed the prior decision of the District Court, [2] reinstating the ruling of the Bankruptcy Court.[3]
Background
A highly significant ruling involving fraudulent transfers recently decided by the Eleventh Circuit could have a far-reaching impact on distressed lending and investing. In Senior Transeastern Lenders v. Official Committee of Unsecured Creditors (In re TOUSA, Inc.), 2012 WL 1673901 (11th Cir.
On May 29, 2012, in RadLAX Gateway Hotel, LLC v. Amalgamated Bank, the United States Supreme Court unanimously held that a debtor may not confirm a chapter 11 plan of reorganization providing for the “free and clear” sale of a secured creditor’s collateral, without permitting the secured creditor to credit bid at the sale.
On May 14, 2012, the Third Circuit Court of Appeals in In re Heritage Highgate, Inc., et al., No. 11-1889 (3d Cir. May 14, 2012) clarified the burden of proof with respect to the valuation and ultimate allowance of alleged secured claims under Bankruptcy Code section 506(a).
Two years ago we published an alert about the decision of the United States Court of Appeals for the Third Circuit in In re Philadelphia Newspapers, LLC, 599 F.3d 298 (3d Cir. 2010). That case held that in a sale of a debtor’s assets under a Chapter 11 bankruptcy plan of reorganization, the debtor could prohibit credit bidding by secured creditors. Now the Supreme Court of the United States has rejected the reasoning behind that holding and ruled that under normal circumstances a secured creditor’s right to credit bid cannot be taken away by a plan’s bidding structure.
Yesterday, the Supreme Court of the United States ruled that a Chapter 11 plan that provides for the sale of assets free and clear of a creditor’s lien must allow the creditor to “credit bid” at the sale. In upholding the Seventh Circuit’s decision,1RadLAX Gateway Hotel, LLC v. Amalgamated Bank resolved the circuit split on this issue between the Seventh Circuit, on the one hand, and the Third and Fifth Circuits, on the other.
BANKRUPTCY CODE
Yesterday, the United States Supreme Court held that sales of assets pursuant to chapter 11 plans must permit credit bidding by their secured lenders in order to satisfy the requirements for confirmation of a chapter 11 “cramdown” plan.1
The U.S. Supreme Court has ruled that a secured creditor cannot be denied its right to “credit bid”—i.e., to offset the amount of its debt against the purchase price of assets, rather than bidding in cash—in sales of collateral undertaken in connection with plans of reorganization under Chapter 11 of the Bankruptcy Code. In so ruling, the Court resolved a widely publicized split of authority among the Circuit Courts of Appeal, and rejected the Third Circuit’s ruling in the Philadelphia Newspapers case.1
In what it described as “an easy decision,” the U.S. Supreme Court issued its eagerly anticipated decision in RadLAX Gateway Hotel, LLC et al. v. Amalgamated Bank1 on May 29, 2012.
Madoff trustee Irving Picard is seeking to recoup nearly $65 billion for investors. However, he has only been able to procure approximately $9 billion. Of that $9 billion, approximately $6.4 billion is tied up in challenges, leaving only $2.6 billion for Picard to disburse. Picard has actually paid investors around $330 million, while reserving the remaining $2.3 billion in customer accounts.