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    In Brief: Delaware Bankruptcy Court Clarifies Burden of Proof for Automatic Stay Relief
    2016-12-02

    In In re Abeinsa Holding, Inc., 2016 BL 335099 (Bankr. D. Del. Oct. 6, 2016), the U.S. Bankruptcy Court for the District of Delaware addressed what it perceived to be a flaw in the approach that many courts apply to motions for relief from the automatic stay.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Surety, Debtor, Breach of contract, Legal burden of proof, Title 11 of the US Code, Second Circuit, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Split Ninth Circuit Requires Default Interest to Cure Default
    2016-12-02

    A Chapter 11 debtor “cannot nullify a preexisting obligation in a loan agreement to pay post-default interest solely by proposing a cure,” held a split panel of the U.S. Court of Appeals for the Ninth Circuit on Nov. 4, 2016. In re New Investments Inc., 2016 WL 6543520, *3 (9th Cir. Nov. 4, 2016) (2-1).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Ninth Circuit, United States bankruptcy court
    Authors:
    Michael L. Cook , Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Delaware Bankruptcy Court Limits Access to Emails in Cross-Border Bankruptcy Case
    2016-11-29

    A recent decision by Judge Sontchi in the Bankruptcy Court for the District of Delaware casts some light on the methods that representatives of non-U.S. debtors can—and can’t—use to track down those who owe such debtors money.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, IT & Data Protection, Litigation, Chadbourne & Parke LLP, Bankruptcy, United States bankruptcy court
    Authors:
    James Salwen
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Third Circuit Rules That Make-Whole Claims of Energy Future’s Bondholders Are Enforceable in Chapter 11 Proceeding
    2016-11-28

    In a November 17, 2016 ruling likely to impact ongoing debt restructurings, pending bankruptcy proceedings and negotiations of new debt issuances, the Third Circuit recently overturned refusals by both the Delaware bankruptcy court and district court to enforce “make-whole” payments from Energy Futures Holding Company LLC and EFIH Finance Inc. (collectively, “EFIH”) to rule that the relevant indenture provisions supported the payments. The case was remanded to the bankruptcy court for further proceedings.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, K&L Gates LLP, Bankruptcy, Debt, United States bankruptcy court, Third Circuit
    Authors:
    Vanessa G. Spiro , Charles A. Dale III
    Location:
    USA
    Firm:
    K&L Gates LLP
    New Delaware Chapter 11 Filing - Xtera Communications, Inc.
    2016-11-16

    On November 15, 2016, Texas-based Xtera Communications, Inc. and seven of its affiliates filed voluntary petitions for chapter 11 bankruptcy relief in the United States Bankruptcy Court for the District of Delaware (Case No: 16-12577). XTERA is a leading provider of high-capacity, cost-efficient optical transport solutions that it sells to telecommunications service providers.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Cole Schotz PC, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Norman L. Pernick , Nicholas J. Brannick
    Location:
    USA
    Firm:
    Cole Schotz PC
    Ninth Circuit Rules That A Purchaser of An Insider’s Claim Should Not Be Deemed an Insider for the Purposes of Voting on a Plan of Reorganization
    2016-11-11

    Before a bankruptcy court may confirm a chapter 11 plan, it must determine if any of the persons voting to accept the plan are “insiders,”i.e., individuals or entities with a close relationship to the debtor. Because the Bankruptcy Code’s drafters believed that insider transactions warrant heightened scrutiny the classification of a creditor as an “insider” can have a profound impact on a debtor’s ability to reorganize.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cooley LLP
    9th Cir. Holds Debtor’s Acknowledgement of Debt Does Not Excuse Untimely Proof of Claim
    2016-11-14

    The U.S. Court of Appeals for the Ninth Circuit recently held that if a creditor wishes to participate in the distribution of a debtor’s assets under Chapter 13, it must timely file a proof of claim, and the debtor’s acknowledgment of the debt owed to the creditor does not relieve the creditor of this affirmative duty.

    A copy of the opinion is available at: Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Debtor, Debt, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Federal Appeals Court Rules That Bankrupt Debtors’ Choice to "Surrender" Real Property Waives Their Right to Contest Foreclosure
    2016-10-28

    Under Section 521(a)(2)(A) of the federal bankruptcy code, a debtor in a chapter 7 bankruptcy must file a statement within 30 days of the bankruptcy filing notifying the court, creditors and the trustee whether the debtor intends to retain or surrender property encumbered by a mortgage.  In its October, 2016 decision in the case of In re Failla, the 11th Circuit Court of Appeals, in affirming rulings from the bankruptcy court and the federal district court, held that once a chapter 7 debtor elects to "surrender" mortgaged property, he is precluded from thereafter opposing

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Shumaker Loop & Kendrick, United States bankruptcy court
    Authors:
    Mark D. Hildreth
    Location:
    USA
    Firm:
    Shumaker Loop & Kendrick
    Interest payments do not qualify as protected settlement payments under Section 546(e)
    2016-10-31

    In the decision of Motors Liquidation Co. Avoidance Action Trust v. JPMorgan Chase Bank, N.A. (In re Motors Liquidation Co.), 552 B.R. 253 (Bankr. S.D.N.Y. 2016), the SDNY bankruptcy court held that prepetition interest payments on a term loan did not qualify as “settlement payments” under Section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Security (finance), Safe harbor (law), Interest, Unsecured creditor, JPMorgan Chase, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Carl D. Neff
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    The Best Offense is a Good Defense: While the Eighth Circuit’s Decision in In re Opportunity Fund LLC Highlights Consequences and Potential Pitfalls of Substantive Consolidation, the Bankruptcy Court Ultimately Dismisses Fraudulent Transfer Claims against the Lenders
    2016-11-01

    In our previous two news alerts,1 we examined decisions that potentially undermine key elements of the legal structures that lenders created in response to their experiences in the United States Bankruptcy Courts during the real estate downturn of 1988 through 1992, including the involuntary restructure of their indebtedness and liens under the cram-down provisions of title 11 of the United States Code (the “Bankruptcy Codeâ€).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Haynes and Boone LLP, Eighth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Haynes and Boone LLP

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