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    When your borrower files bankruptcy - a 10-point checklist
    2011-10-10

    This past quarter end once again reminded us that the economy remains weak and borrowers who have managed to hang on for the past three or four years are running out of staying power. The topic again arose - what to do when a borrower files bankruptcy? Faced with the prospect of throwing good money after bad, some lenders bury their head in the sand and simply wait it out, often with terrible results. Others charge ahead aggressively and run up large legal bills that are not justified by the amount of the obligation or the difficulty of recovery.

    Filed under:
    USA, Insolvency & Restructuring, Jeffer Mangels Butler & Mitchell LLP, Contractual term, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Property tax, Accounts receivable, Debt, Liability (financial accounting), Secured creditor, Uniform Commercial Code (USA), Trustee
    Authors:
    Richard A. Rogan
    Location:
    USA
    Firm:
    Jeffer Mangels Butler & Mitchell LLP
    New decision confirms that secured creditors may have lien on economic value of FCC license
    2011-08-24

    In a recent decision1 involving TerreStar Networks, Inc., and its affiliates (“TerreStar” or the “Debtors”), the United States Bankruptcy Court for the Southern District of New York held that the Debtors’ noteholders held a valid lien on the economic value of a license granted to TerreStar by the Federal Communications Commission (“FCC”) and that nothing in Article 9 of the New York Uniform Commercial Code (the “NYUCC”) or Section 552 of the Bankruptcy Code invalidated that lien.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Bankruptcy, Costs in English law, Debtor, Unsecured debt, Interest, Secured loan, Federal Communications Commission (USA), Sprint Corporation, Title 11 of the US Code, Uniform Commercial Code (USA), United States bankruptcy court
    Authors:
    Sharon L. Levine , Wojciech F. Jung , Thomas Livolsi
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    Right of set-off trumps secured interest absent control agreement
    2007-02-19

    An appeals court in Kentucky has issued a reminder to secured lenders of the importance of drawing up control agreements that establish a lender’s interest in a debtor’s assets contained in depository accounts.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Collateral (finance), Accounts receivable, Interest, Limited liability company, Common law, Default (finance), Secured creditor, Uniform Commercial Code (USA)
    Location:
    USA
    Firm:
    Reed Smith LLP
    Assignments of equipment lease payment streams were loans, not sales
    2007-02-19

    The Bankruptcy Appellate Panel of the Ninth Circuit has ruled that assignments of equipment lease payment streams were not automatically perfected. Because the debtor failed to perfect the assignees’ interests in the payment streams, the bankruptcy trustee could bring an action to avoid those interests.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bond (finance), Debtor, Interest, Personal property, Uniform Commercial Code (USA), Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    First opinions: bankruptcy courts’ recent rulings on Twenty Day Claims
    2007-04-01

    As part of the 2005 revisions of the Bankruptcy Code, Congress greatly enhanced the priority of claims asserted by suppliers of goods to debtors in the 20-day period immediately prior to a debtor’s bankruptcy filing by enacting new section 503(b)(9). This new provision raises several interesting issues, some of which were addressed by two recent cases examining the question of when such claims are to be paid.

    The Language of Section 503(b)(9)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Precondition, US Congress, Uniform Commercial Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Want to avoid successor liability? Then market aggressively
    2007-02-19

    A company’s failure to meaningfully market its assets led to the dismissal of its attempted chapter 11 reorganization. As a result, a Massachusetts court held in a detailed opinion that an acquiring company was the successor to the company it acquired, and therefore liable for an $8.8 million debt.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Shareholder, Debtor, Unsecured debt, Marketing, Debt, Bench trial, Secured loan, Uniform Commercial Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    UCC Standing Blocked in Recent Sabine Decision
    2016-04-27

    What showing must creditors make to be granted the right to prosecute claims on behalf of the bankruptcy estate?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Standing (law), Debtor in possession, Uniform Commercial Code (USA), Second Circuit
    Authors:
    James Michael Peck , Benjamin Butterfield
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    When Worlds Collide: Article 2 of The Uniform Commercial Code and Chapter 11
    2016-04-19

    Picture the scene: You have just received word that your customer has filed Chapter 11. You had followed my ad-vice (see article Reducing a Customer’s Accounts Receiva-ble in the Zone of Insolvency), and put the customer on a cash-before-delivery basis and demanded assurances of performance. You were successful in reducing the ac-counts receivable owed, and avoiding preference liability in doing so.

    The customer, now a Chapter 11 debtor, calls and de-mands that you continue to ship, and resume credit terms.

    Filed under:
    USA, Insolvency & Restructuring, Shumaker Loop & Kendrick, Credit risk, Uniform Commercial Code (USA)
    Authors:
    David H. Conaway
    Location:
    USA
    Firm:
    Shumaker Loop & Kendrick
    Financing statement filed without debtor's authorization
    2015-11-06

    Under the Uniform Commercial Code (UCC), a secured party can perfect its lien on certain of a debtor's assets by the filing of a UCC-1 financing statement. However, Section 9-509 of the UCC provides that a party may file such a financing statement only if the debtor authorizes the filing: either expressly in an authenticated record or, more commonly, by executing a security agreement. The UCC does not specify when a debtor must provide such authorization, but the U.S.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Duane Morris LLP, Debtor, Uniform Commercial Code (USA)
    Authors:
    Rudolph J. Di Massa, Jr. , Chad E. Odhner
    Location:
    USA
    Firm:
    Duane Morris LLP
    The SemCrude bankruptcy: commodity traders prevail against related fraud and U.C.C. claims
    2015-08-24

    Introduction

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Eversheds Sutherland (US) LLP, Fraud, Uniform Commercial Code (USA)
    Authors:
    Mark D. Sherrill , David M. McCullough , Cheryl I. Aaron
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP

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