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    EFIH First Lien Trustee Petitions for Certiorari to Resolve Circuit Split over Pre-Plan Settlements
    2016-08-17

    On August 3, 2016, Delaware Trust Company, as trustee for the EFIH first lien notes, filed a petition for certiorari with the United States Supreme Court, asking the Court to review the Energy Future Holding debtors’ settlement with the EFIH first lien noteholders.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, United States bankruptcy court, Third Circuit
    Authors:
    Debora Hoehne
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Post-Petition Interest in a Solvent Case: What Interest Rate Controls?
    2016-08-18

    In today's low interest rate environment, the difference between a contractual interest rate and the federal judgment rate can be quite significant. It is not surprising, therefore, that this issue has become hotly litigated in cases involving solvent Chapter 11 debtors. Recently, the U.S. District Court for the Northern District of Illinois, in Colfin Bulls Funding A v. Paloian (In re Dvorkin Holdings), 547 B.R. 880 (N.D. Ill.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Discovery, Default (finance), US Congress, The Legal Intelligencer, United States bankruptcy court, US District Court for Northern District of Illinois
    Authors:
    Rudolph J. Di Massa, Jr. , Lawrence J. Kotler , Catherine B. Heitzenrater
    Location:
    USA
    Firm:
    Duane Morris LLP
    Delaware Bankruptcy Court Rules Gift Cards Not Eligible for Priority Treatment
    2016-08-19

    Decision clarifies standards for priority treatment under section 507(a)(7); important implications in retail bankruptcy cases for debtors, creditors - and consumers

    Overview

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Retail, Debtor, Unsecured debt, Consideration, Legal burden of proof, US Congress, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    William J. Hanlon
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Circuit Courts Divided Following Seventh Circuit's Section 546(e) Safe Harbor Decision
    2016-08-22

    On July 26, 2016, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that the Bankruptcy Code section 546(e) "safe harbor" applicable to constructive fraudulent transfers that are settlement payments made in connection with securities contracts does not protect "transfers that are simply conducted through financial institutions (or the other entities named in section 546(e)), where the entity is neither the debtor nor the transferee but only the conduit."FTI Consulting, Inc. v. Merit Management Group, LP, 2016 BL 243677.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Shareholder, Debtor, Security (finance), Fraud, Safe harbor (law), Federal Reporter, Leveraged buyout, Title 11 of the US Code, Second Circuit, United States bankruptcy court, Eleventh Circuit, Sixth Circuit, Seventh Circuit
    Authors:
    Bruce Bennett , Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Too Clever by Half: Bankruptcy Court Re-characterizes Debt Owed to Insider as Equity
    2016-08-22

    In a new, unpublished decision1 in the U.S. Court of Appeals, the Fourth Circuit affirmed a bankruptcy court’s order re-characterizing a portion of a loan to a bankruptcy debtor purchased by a creditor as equity instead of debt, impairing that creditor’s ability to recover from the debtor.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Adams and Reese LLP, Bankruptcy, Debtor, Interest, Limited liability company, Debt, Good faith, Due diligence, Secured loan, United States bankruptcy court, Fourth Circuit
    Authors:
    Andrew J. McBride
    Location:
    USA
    Firm:
    Adams and Reese LLP
    Buyer Beware: a Sale “Free and Clear” is not Free and Clear of Claims Whose Holders Were not Provided Notice of the Sale Hearing
    2016-08-16

    The Second Circuit’s recent opinion in The Matter of: Motors Liquidation Company, 2016 WL 3766237 (2nd Cir. 2016) should give pause to all buyers of assets from bankruptcy estates.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Bankruptcy, Debtor, Federal Reporter, Due process, Remand (court procedure), Prejudice, Fifth Amendment, General Motors, Due Process Clause, Eighth Circuit, Second Circuit, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Holland & Hart LLP
    No Turnover of the Make-whole Amount in the EFH Bankruptcy
    2016-08-16

    In a pair of decisions in 2015, the United States Bankruptcy Court of the District of Delaware determined that neither the first lien notes trustee nor the second lien notes trustee of Energy Future Intermediate Holdings Corp. (“EFIH”), a subsidiary of Energy Future Holdings (“EFH”), was entitled to receive a make-whole on the repayment of the corresponding indebtedness resulting from the acceleration of that debt in the EFH bankruptcy case.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Collateral (finance), Interest, Debt, Liquidation, Title 11 of the US Code, Trustee, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Joshua Brody , Jennifer R. Sharret
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    7th Cir. Deepens Split on FDCPA Liability for ‘Time-Barred’ Claims
    2016-08-11

    Filing a proof of claim with a bankruptcy court representing a debt subject to an expired state law limitations period does not violate the federal Fair Debt Collection Practices Act (FDCPA) under an opinion released yesterday from the Seventh Circuit Court of Appeals.

    Under the ruling, in Owens v. LVNV, the Seventh Circuit joins the Eighth Circuit Court of Appeals in rejecting the Eleventh Circuit’s holding under Crawford v. LVNV that such proofs of claim violate the FDCPA.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Debtor, Debt, Fair Debt Collection Practices Act 1977 (USA), United States bankruptcy court, Seventh Circuit
    Authors:
    Donald Maurice
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    A Setoff Question of First Impression
    2016-08-12

    The Bankruptcy Court for the District of Delaware recently faced a question of first impression: whether an allowed postpetition administrative expense claim can be used to set off preference liability. In concluding that it can, the court took a closer look at the nature of a preference claim.

    Facts and Arguments

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Fraud, Limited liability company, Tyson Foods, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Moshe Fink
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    6th Cir. BAP Holds In Rem Foreclosure Not Disguised In Personam Collection Effort
    2016-08-15

    The Bankruptcy Appellate Panel of the Sixth Circuit recently held that a condominium unit owners association did not violate a debtor’s Chapter 7 discharge order by scheduling a sheriff’s sale to complete a prepetition foreclosure.

    Rejecting the bankruptcy court’s conclusion that the in rem foreclosure sale was scheduled to induce payment of discharged pre-petition condominium fees, the Sixth Circuit BAP noted that “all foreclosure litigation potentially can induce payments of discharged debt to avoid a foreclosure sale.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Debt, Mortgage loan, Foreclosure, Condominium, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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