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    New bankruptcy cram down and foreclosure prevention legislation introduced
    2009-02-26

    This week, Representative John Conyers introduced the “Helping Families Save Their Homes Act of 2009” (H.R. 1106) (the “Act”), which has been circulated in advance of a vote by the House of Representatives anticipated as early as today. Additional amendments have been offered to the bill, but it is unclear which, if any, will be incorporated into the final text. It is not expected that the Senate will consider its version of the bill until mid-March.

    Filed under:
    USA, Insolvency & Restructuring, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Mortgage loan, Foreclosure, Mortgage-backed security, Pro rata, US House of Representatives, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Urban Communicators ruling overturned: secured lenders entitled to presumption of post-petition interest at contract rates
    2009-01-30

    In the March 2008 issue, we discussed a decision from the In re Urban Communicators PCS, Ltd. Partnership1 case. In that decision, the United States Bankruptcy Court for the Southern District of New York held that under section 506(b) of the Bankruptcy Code, the Bankruptcy Court could limit the rate of postpetition interest to be paid to an over-secured creditor to an amount less than the contract interest rate.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Unsecured debt, Interest, Consideration, Debt, Default (finance), Secured creditor, Prejudice, Compound interest, Title 11 of the US Code, Federal Communications Commission (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Failed mitigation efforts do not prevent lessor’s claim
    2008-07-31

    In Giant Eagle, Inc. v. Phar-Mor, Inc.,1 the United States Court of Appeals for the Sixth Circuit held that a lessor-claimant whose lease was rejected pursuant to section 365(a) of Title 11 of the Bankruptcy Code was entitled to a claim for future-rent damages against the debtor, even though the lessor had entered into a nearly identical substitute lease. The Court concluded that efforts to mitigate damages by the lessor would not be considered in reducing the actual damage claim when those efforts failed to reduce the actual harm suffered by the lessor.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Consideration, Liquidated damages, Default (finance), Title 11 of the US Code, United States bankruptcy court, Sixth Circuit, US District Court for Northern District of Ohio
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Supreme Court limits stamp tax exemption
    2008-06-30

    On June 16th, the Supreme Court of the United States issued a decision that is likely to have a significant impact on how debtors will sell assets in bankruptcy. InFlorida Department of Revenue v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Tax exemption, Debtor, Unsecured debt, Statutory interpretation, Stamp duty, Title 11 of the US Code, US Congress, SCOTUS, United States bankruptcy court, Eleventh Circuit, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Breach of fiduciary duty claims dismissed, but conduct might still support equitable subordination or recharacterization
    2008-06-30

    In Mukamal v. Bakes,1 the trustee of two trusts created under a chapter 11 plan of reorganization filed a complaint (the “Complaint”) against the former directors and officers of the debtors, the dominant shareholders of the debtors and the debtors’ accounting firm, alleging, among other things, various breaches of fiduciary duties.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Shareholder, Debtor, Unsecured debt, Collateral (finance), Arbitration clause, Waiver, Fiduciary, Audit, Board of directors, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Losing Your Marbles: A Sensible Interpretation of Section 316 of the Trust Indenture Act
    2017-01-27

    The U.S. Court of Appeals for the Second Circuit issued its ruling in Marblegate Asset Management, LLC v. Education Management Corp. that provided much needed clarity to creditors and issuers involved in out-of-court restructurings affecting noteholders. The issue for the court was whether Education Management Corp. (“EDMC”) violated the Trust Indenture Act (the “TIA”) when it implemented a restructuring that impaired the rights of one of its unsecured noteholders, Marblegate Asset Management, LLC (the “Noteholder”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Unsecured debt, Asset management, Secured loan, Second Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Mandatory premium payments due on account of post-petition pension plan termination are pre-petition contingent claims
    2008-05-31

    Introduction

    In Oneida Ltd. v. Pension Benefit Guaranty Corp. (In re Oneida Ltd.),1 the United States Bankruptcy Court for the Southern District of New York addressed whether a premium payment created by the Deficit Reduction Act of 2005 (“DRA”)2 for pension plans terminated as part of a chapter 11 restructuring is a pre-petition claim or a post-petition administrative expense. The Court held that the statutorily mandated premium payment was a contingent pre-petition claim and was discharged upon confirmation of the debtor’s plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Unsecured debt, Retirement, Liquidation, Bankruptcy discharge, US Code, Title 11 of the US Code, Pension Benefit Guaranty Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    SDNY Bankruptcy Court rules that Borders gift card holders are not “known creditors” entitled to actual notice of a bankruptcy bar date
    2012-08-31

    Judge Martin Glenn of the Bankruptcy Court for the Southern District of New York recently ruled that Borders gift card holders did not qualify as “known creditors.” The Court concluded that the gift card holders were entitled only to publication notice rather than actual notice of the bar date for filing bankruptcy claims in Borders’ chapter 11 case.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Unsecured debt, United States bankruptcy court, US District Court for SDNY
    Authors:
    Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Creditor’s pre-petition release of debtor - guarantor voided by Bankruptcy Appellate Panel
    2008-03-27

    In In re SNTL Corp.,1 the United States Bankruptcy Appellate Panel of the Ninth Circuit recently decided that if a creditor is required in another proceeding to disgorge as a preference a payment that had been guaranteed by the debtor, the debtor’s liability as guarantor may be revived, provided that the agreement releasing the debtor from its guarantee obligation to the creditor explicitly permits such revival.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Surety, Debtor, Unsecured debt, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Judge Gropper denies the appointment of an official committee of equity holders in Kodak’s Chapter 11 cases
    2012-07-16

    On June 28, 2012, Judge Allan Gropper of the United States Bankruptcy Court for the Southern District of New York declined to appoint an official committee of equity holders in Kodak’s chapter 11 cases.  The bankruptcy court determined that the appointment of an official committee was not warranted at that time, given that the costs to the bankruptcy estates would be substantial and equity’s interests were already represented by other constituencies seeking to maximize value and by a sophisticatedad hoc group of shareholders.  In re Eastman Kodak Company, Case No

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Unsecured debt, United States bankruptcy court
    Authors:
    Audrey Aden Doline , Matthew J. Oliver
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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