Recent Second Circuit and Ninth Circuit opinions highlight the dispute over whether or not the Bankruptcy Code authorizes allowance of claims for post-petition legal fees incurred by unsecured creditors. Specifically, while not all Circuits agree, in the wake of the 2007 United States Supreme Court decision Travelers Casualty & Surety Co. of North America v. Pacific Gas & Electric Co., 549 U.S.
One of the fundamental principles of commercial law is the freedom to contract with a particular party, or to refuse do so. "As a general rule, businesses are free to choose the parties with whom they will deal, as well as the prices, terms and conditions of that dealing." See Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 555 U.S. 438 (2009). However, the Bankruptcy Code may permit a court to alter this fundamental principle in certain circumstances. A bankruptcy court did just that in In re Mathson Industries, Inc., 423 B.R. 643 (E.D. Mich. 2010).
In re Furrs Supermarkets, Inc., No. 11-01-10779 SA (Bankr. D.N.M. Aug. 15, 2012)
CASE SNAPSHOT
The U.S. Bankruptcy Court for the Eastern District of Tennessee ruled in August that an LLC’s creditor could not pierce the LLC’s veil to assert its claim against the LLC’s sole member. In a twist, the LLC’s member, not the LLC, was the debtor in bankruptcy. In re Steffner, No. 11-51315, 2012 WL 3563978 (Bankr. E.D. Tenn., Aug. 17, 2012).
In Salyersville Nat’l Bank v. Bailey (In re Bailey), 664 F.3d 1026 (6th Cir.
Most people are familiar with the two most common forms of bankruptcy protection under the Bankruptcy Code – Chapter 7 liquidations and Chapter 11 reorganizations. But like individuals and companies, municipalities can also file for bankruptcy protection under Chapter 9 of the Bankruptcy Code. Now the city of Stockton, California has become the largest city to file for municipal bankruptcy protection following major municipal bankruptcy filings in Jackson County, Alabama and Harrisburg, Pennsylvania.
Introduction
Sprint Nextel Corporation v. U.S. Bank N.A. (In re TerreStar Networks, Inc.), Case No. 10-15446 (Bankr. S.D.N.Y., Aug. 19, 2011)
CASE SNAPSHOT
On November 22, 2011, the Court of Appeals for the Eleventh Circuit issued a per curiam opinion that piqued the interest of bankruptcy practitioners nationwide and sent secured creditors scrambling to ensure that their rights to a deficiency claim had been properly preserved in pending bankruptcy cases. The Eleventh Circuit held that the IRS had waived its right to an unsecured deficiency by filing a proof of claim that evidenced a secured claim but failed to note that a portion of the claim may be unsecured.
The United States Supreme Court has unanimously held that federal bankruptcy law does not preclude an unsecured creditor from recovering attorney’s fees authorized under a prepetition contract and incurred postpetition in bankruptcy-related litigation with the debtor.