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    Delaware Court rules that creditors' post-petition plan support agreement does not constitute improper solicitation
    2013-03-13

    Due to the substantial time and effort involved in negotiating and confirming a Chapter 11 reorganization plan, and the potential for improperly solicited votes to be disqualified, plan proponents generally are well advised to adhere strictly to the plan voting and disclosure requirements of the Bankruptcy Code.  A recent Delaware bankruptcy court decision, In re Indianapolis Downs, LLC,1 indicates that creditors who actively negotiate the terms of a debtor's reorganization can, under certain circumstances, enter into a formal plan support agreement with the debtor

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Leslie W. Chervokas , Paul Rubin
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Senator Coons to lead Subcommittee on bankruptcy and the courts: legislative implications
    2013-03-19

    The Senate Judiciary Committee in February approved Delaware Democratic Senator Chris Coons to head the Subcommittee on Bankruptcy and the Courts for the 113th Congress. This gives Coons oversight of the nation’s bankruptcy court system, as well as court administration and management, judicial rules and procedures, the creation of new courts and judgeships, and legal reform and liability issues.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, ArentFox Schiff, Bankruptcy, US Senate, US Senate Committee on the Judiciary, US House Committee on the Judiciary, US Democratic Party, United States bankruptcy court
    Authors:
    Philip S. English , James A. Hunter , Mette H. Kurth
    Location:
    USA
    Firm:
    ArentFox Schiff
    Bankruptcy court denies reinsurers’ motion to determine debt owed to them is nondischargeable
    2013-03-05

    A Massachusetts bankruptcy court denied the motion for summary judgment of reinsurers Trenwick America Reinsurance Corporation and Unum Life Insurance Company, which sought to determine that debtor Malcom C. Swasey’s debt owed them was nondischargeable in bankruptcy. The underlying dispute centered on the reinsurers’ claim that Swasey and companies he controlled, IRC, Inc. and IRC Re, engaged in fraud and breached a contract under which IRC Re was to provide retrocessional coverage in connection with a workers’ compensation program.

    Filed under:
    USA, Massachusetts, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Reinsurance, Collateral estoppel, United States bankruptcy court
    Authors:
    Ben Seessel
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Secured lender’s full credit bid barred later recovery from guarantors
    2013-03-06

    The U.S. Court of Appeals for the Fifth Circuit held on Feb. 28, 2013, that a secured lender’s full credit bid for a Chapter 11 debtor’s assets at a bankruptcy court sale barred any later recovery from the debtor’s guarantors. In re Spillman Development Group, Ltd., ___ F.3d ___, 2013WL 757648 (5th Cir. 2/28/13). A “credit bid” allows a creditor to “offset its [undisputed] claim against the purchase price,” a right explicitly granted by Bankruptcy Code (“Code”) § 363(k). 3 Collier, Bankruptcy, ¶ 363.06[10], at 363-59 (16th rev. ed. 2010).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Surety, Debtor, Tortious interference, Secured loan, United States bankruptcy court, Fifth Circuit
    Authors:
    Adam C. Harris , Lawrence V. Gelber , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Tribal corporate bankruptcy petition raises issues of first impression for bankruptcy court
    2013-03-07

    On March 4, 2013, ‘SA’ NYU WA, Inc., a tribally-chartered corporation wholly owned by the Hualapai Indian Tribe, filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court, District of Arizona. This is a very important case for tribes and any party conducting business with tribes because the petition will raise a question of first impression for the Bankruptcy Court. The Bankruptcy Court will have to decide whether a tribal corporation is eligible to be a debtor under the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Debtor, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Christine L. Swanick , Wilda Wahpepah
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    An insider’s guide to evading absolute priority? Seventh Circuit: new value competition requirements apply to insiders
    2013-03-07

    In Chapter 11 bankruptcy cases, the absolute priority rule requires a debtor’s creditors be paid in full before equity investors receive any value. However, existing equity investors occasionally seek to invest new money in the plan of reorganization process and argue that such investment justifies retention of equity in the reorganized company; equity which otherwise would pass to impaired creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mintz, Bankruptcy, Debtor, Secured creditor, United States bankruptcy court, Seventh Circuit
    Authors:
    Eric R. Blythe
    Location:
    USA
    Firm:
    Mintz
    Weathering the storm: Fifth Circuit permits artificial impairment of unsecured trade creditors to cram down plan acceptance on secured lender
    2013-03-07

    Bankruptcy Code § 1129(a)(10) provides that in order for a plan proponent to “cram down” - i.e., force acceptance of - a plan of reorganization on a dissenting class of creditors, at least one impaired class of creditors must vote in favor of the plan. Because a plan is often not accepted by all classes entitled to vote, the ability to procure at least one impaired, accepting class in order to cram down a dissenting class is essential in achieving plan confirmation.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Debtor, Unsecured debt, Interest, Secured loan, United States bankruptcy court, Fifth Circuit
    Authors:
    Stephen Pezanosky , Trevor Hoffmann , John D. Beck , Yonit Caplow
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    SDNY denies payment of administrative expense claim by relying on the operative document as a whole and rejecting a statutory rule of construction
    2013-02-26

    On December 13, 2012, Judge Vincent L. Briccetti from the United States District Court of the Southern District of New York denied the appellant Notes Trustee’s request to compel payment of an administrative expense claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Statutory interpretation, Motion to compel, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    U.S. District Court reverses U.S. Bankruptcy Court decision allowing Illinois mortgage to be avoided for failure to state interest rate and maturity date
    2013-03-01

    In a ruling on February 28, 2013, the U.S. District Court for the Central District of Illinois reversed the February 29, 2012 order of the U.S. Bankruptcy Court for the Central District of Illinois allowing a bankruptcy trustee to avoid an Illinois mortgage as to unsecured creditors for lack of “constructive notice” because the mortgage did not expressly state the maturity date of and interest rate on the underlying debt (In Re Crane, Case 12-2146, U.S. Dist. Ct., C.D. IL, February 28, 2013).

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Dykema Gossett PLLC, Unsecured debt, Mortgage loan, Maturity (finance), Constructive notice, United States bankruptcy court
    Authors:
    Michael S. Kurtzon , Matthew S. Raczkowski , Michael D. Rothstein
    Location:
    USA
    Firm:
    Dykema Gossett PLLC
    In re Crane reversed on appeal: Illinois statutory mortgage form held to be permissive, not mandatory; incorporation by reference held to be sufficient
    2013-03-04

    The United States District Court for the Central District of Illinois has arguably driven the last nail into the coffin of In re Crane, the much criticized decision of the United States Bankruptcy Court for the Central District of Illinois. The coffin was already set in place after the Illinois legislature passed S.B.0016 late last year, which was signed into law by Gov.

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Reed Smith LLP, Mortgage loan, Maturity (finance), United States bankruptcy court
    Authors:
    Daniel J. Slattery , Ann E. Pille
    Location:
    USA
    Firm:
    Reed Smith LLP

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