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    Tousa roller coaster
    2012-05-24

    The bankruptcy case of TOUSA, Inc. and its various subsidiaries (collectively “Tousa”) is one where lenders have seen their fortunes rise and fall. On March 15, 2012, they fell again when the Eleventh Circuit1 (the “Circuit Court”) reversed the District Court’s opinion and reinstated the Bankruptcy Court’s order, which had disgorged over $400 million from Tousa’s senior lenders and avoided certain guarantees and liens granted to them by the Conveying Subsidiaries (defined below).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Subsidiary
    Authors:
    Raniero D'Aversa , Jonathan P. Guy , Amy G. Pasacreta
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    First bankruptcy filed by a public pension fund
    2012-05-24

    On April 17, 2012, the Northern Mariana Islands Retirement Fund (the “Fund”) became the first United States public pension fund to seek formal bankruptcy protection. The Fund, which provides retirement benefits to government employees of the Commonwealth of the Northern Mariana Islands (the “Commonwealth”) a U.S. territory, listed $256 million in assets and $1 billion in liabilities and has alleged it will exhaust its claims paying ability by as early as 2014. ”

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Mintz, Bankruptcy, US Department of Justice
    Authors:
    William W. Kannel , Eric R. Blythe
    Location:
    USA
    Firm:
    Mintz
    Eleventh Circuit Court of Appeals reinstates TOUSA Bankruptcy Court decision
    2012-05-25

    In Senior Transeastern Lenders v. Official Committee of Unsecured Creditors (In re TOUSA, Inc.), the Eleventh Circuit Court of Appeals reinstated the decision of the United States Bankruptcy Court for the Southern District of Florida (the “Bankruptcy Court”) in which the Bankruptcy Court avoided the liens given by TOUSA’s subsidiaries to new lenders and permitted the recovery of the proceeds of the new loan from other TOUSA lenders that had taken the funds in repayment of their TOUSA guaranteed loans.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Seyfarth Shaw LLP, Bankruptcy, Surety, Collateral (finance), Refinancing, Subsidiary, US Code, United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    What is the ordinary course of business defense? Exploring this common defense to preference cases
    2012-05-25

    Avoidance Preferences Generally

    As many creditors have experienced firsthand, the bankruptcy code allows a debtor, trustee or other estate representative to recover certain payments made within 90 days of the date a bankruptcy case was filed.

    Filed under:
    USA, Insolvency & Restructuring, Wiley Rein LLP
    Location:
    USA
    Firm:
    Wiley Rein LLP
    In re Heritage Highgate, Inc.: timing is everything to secured creditors facing valuation issues
    2012-05-25

    On May 14, 2012, the United States Court of Appeals for the Third Circuit upheld a ruling by the Bankruptcy Court for the District of New Jersey that the fair market value of a creditor’s collateral as of the plan’s confirmation date is the proper method of valuing a secured creditor’s claim pursuant to section 506(a) of the Bankruptcy Code.  The Third Circuit also adopted a “burden-shifting framework,” finding that a secured creditor will bear the ultimate burden of proving the extent to which its claims are secured pursuant to section 506(a).

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Collateral (finance), Legal burden of proof, Fair market value, Valuation (finance), Secured loan, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    TOUSA redux: the Eleventh Circuit Court of Appeals affirms bankruptcy court’s avoidance of constructively fraudulent transfers and reverses the district court
    2012-05-18

    The outcome of the TOUSA appeal has been much anticipated and closely watched by the lending community, their counsel and advisors, and legal scholars. On May 15, 2012, the Eleventh Circuit Court of Appeals issued its opinion (found here), reversing the District Court for the Southern District of Florida and affirming the Bankruptcy Court for the Southern District of Florida, at least insofar as to the bankruptcy court’s factual findings, but not remedies.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Bankruptcy, Subsidiary, United States bankruptcy court, Eleventh Circuit
    Authors:
    Dennis J. Connolly , Jason H. Watson , John C. Weitnauer (Kit) , David A. Wender , William S. Sugden , Jonathan T. Edwards
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Bankruptcy sale orders may not always prevent successor liability claims against asset purchasers
    2012-05-18

    A purchaser of assets from a debtor in bankruptcy may not be able to rely entirely on bankruptcy court approval of the sale to bar a claim arising long after the sale and based on a claimed defect in a product sold by the debtor years prior to its bankruptcy.

    Although bankruptcy court sale orders routinely shield asset purchasers from successor liability claims, that protection is not unlimited, particularly where a claimant did not and could not have received notice of the sale.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Hogan Lovells, Bankruptcy, Debtor, United States bankruptcy court
    Authors:
    Edward C. Dolan , Robin E. Keller , Stephen J. Zempolich , Khang V. Tran
    Location:
    USA
    Firm:
    Hogan Lovells
    In re TOUSA, Inc.—Eleventh Circuit reinstates widely criticized fraudulent transfer decision
    2012-05-18

    On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued an opinion in the TOUSA, Inc.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, King & Spalding LLP, Fraud, Debt, Refinancing, United States bankruptcy court, Eleventh Circuit
    Authors:
    Sarah Borders , W Austin Jowers , Mark Maloney , Michael Rupe , Jeffrey Dutson
    Location:
    USA
    Firm:
    King & Spalding LLP
    Just when I thought I was out . . . Eleventh Circuit rules in TOUSA that refinanced lenders can be “pulled back in” and held liable if a replacement loan is a fraudulent transfer
    2012-05-18

    On May 15, 2012, the Eleventh Circuit Court of Appeals upheld a ruling by the U.S. Bankruptcy Court for the Southern District of Florida, which required certain lenders to return $403 million in prepetition payments they had received from TOUSA, Inc.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Refinancing, United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Eleventh Circuit reverses TOUSA district court decision and holds lenders liable for fraudulent transfer
    2012-05-21

    The United States Court of Appeals for the Eleventh Circuit, on May 15, 2012, reversed a district court's February 2011 decision that lenders were not liable on a fraudulent transfer claim. In re TOUSA, Inc., ___ F.3d ___, 2012 U.S. App. LEXIS 9796 (11th Cir. 5/15/12).[1] It rejected the district court's finding that corporate subsidiaries had received "reasonably equivalent value" when they encumbered their assets to secure a loan made to them and their corporate parent.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, United States bankruptcy court, Eleventh Circuit
    Authors:
    Michael L. Cook , David M. Hillman
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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