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    The dilemma facing landlords
    2009-06-16

    A question facing many landlords is whether, when a tenant company faces insolvency and shows no intention of continuing to trade from the premises, they should take back the property and seek to relet it?

    There are several key issues here, including:

    • rates liability
    • mitigating losses
    • ability to recover from third parties and former tenants.

    A landlord's decision has often turned on the type of insolvency faced by the tenant.

    If a liquidator disclaims the lease:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Real Estate, Gowling WLG, Surety, Unsecured debt, Landlord, Leasehold estate, Covenant (law), Debt, Deed, Liability (financial accounting), Liquidation, Liquidator (law)
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Debt Relief Orders – the latest tool in the debt relief toolbox
    2009-04-07

    For debtors with limited liabilities, little surplus income and minimal gross assets, the new Debt Relief Order (DRO) is a further tool to consider in managing their debts. DROs, which came into force on 6 April 2009, are aimed at those who find they are unable to pay off their debts within a reasonable time but for whom other forms of debt relief, such as bankruptcy or Individual Voluntary Arrangements, are unavailable, or perhaps unaffordable.

    What are the criteria for a DRO?

    A DRO can be applied for where the debtor:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Gowling WLG, Credit (finance), Debtor, Unsecured debt, Dividends, Board of directors, Debt, Debt relief, Liability (financial accounting), Credit rating
    Authors:
    Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Creditor's wishes prevail over appointment of administrator
    2008-09-25

    When there is a dispute as to which administrator should be appointed, the wishes of the creditor, for whose benefit the administration was, takes precedence.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Shareholder, Unsecured debt, Unsecured creditor
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Fixed and floating charge holders cannot participate in prescribed part for shortfalls
    2008-02-08

    Secured creditors with an unsecured shortfall cannot claim a share of the prescribed part of the floating charge realisations set aside for unsecured creditors under Section 176A of the Insolvency Act 1986. This applies whether the secured creditor is the holder of a fixed or a floating charge (or both).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Share (finance), Unsecured debt, Dividends, Debt, Secured creditor, Insolvency Act 1986 (UK), Enterprise Act 2002 (UK)
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Equitable subordination in Canada — waiting for the right facts
    2014-05-06

    What does the U.S. doctrine of equitable subordination have to do with Canada? Superficially, the answer may be: not much. But for many financing and insolvency professionals here in Canada, there remains a palpable sense that the U.S. doctrine will eventually, if not inevitably, find its way fully across the U.S. border into Canada. So, perhaps the more appropriate response really ought to be: not much, at least not yet! It is because of this anticipation that it is worthwhile, from time to time, to summarize the central aspects of the U.S.

    Filed under:
    Canada, USA, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Debtor, Unsecured debt, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    James J. Shanks
    Location:
    Canada, USA
    Firm:
    Gowling WLG
    U.S. Supreme Court to Weigh in on Structured Dismissals and Settlements Circumventing the Bankruptcy Code’s Priority Scheme
    2016-07-12

    On June 28, 2016, the U.S. Supreme Court agreed to hear a challenge to a Third Circuit-affirmed settlement and dismissal of the chapter 11 cases of Jevic Transportation, Inc. (“Jevic”) and certain of its affiliates. SeeOfficial Comm. of Unsecured Creditors v. CIT Grp./Bus. Credit Inc. (In re Jevic Holding Corp.), 787 F.3d 173 (3d Cir. 2015), cert. grantedCzyzewski v. Jevic Holding Corp., No. 15-649, 2016 WL 3496769 (U.S. 2016).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cole Schotz PC, Wage, Bankruptcy, Unsecured debt, Class action, Federal Reporter, Leveraged buyout, US Code, Worker Adjustment and Retraining Notification Act 1988 (USA), Sun Capital Partners, SCOTUS, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Jacob S. Frumkin
    Location:
    USA
    Firm:
    Cole Schotz PC
    When a secured loan turns into unsecured debt: the irreversibility of discharged registrations
    2015-02-05

    A discharge is effective whether or not the secured party intended to discharge that particular registration.  That was the decision of the United States Court of Appeals for the Second Circuit,1 which left JP Morgan unsecured for $1.5 billion as a result of a paperwork mix-up. Case law in Ontario and elsewhere in Canada suggests that the decision here would be the same.  Consequently, lawyer

    Filed under:
    Canada, USA, Insolvency & Restructuring, Litigation, DLA Piper, Unsecured debt, Secured loan
    Authors:
    M. Sandra Appel
    Location:
    Canada, USA
    Firm:
    DLA Piper
    LBIE administrators extend September 17, 2010 proof of debt submission deadline for Consensual Approach participants
    2010-09-17

    Previously, on June 16, 2010, the Joint Administrators (the “Administrators”) of Lehman Brothers International (Europe) (“LBIE”) announced that they would be testing the feasibility of their so-called Consensual Approach to the resolution of LBIE’s unsecured creditor claims. They anticipated the Consensual Approach would be applicable to financial trading creditors ("FTCs") and conceptually outlined the Consensual Approach as follows:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Schulte Roth & Zabel LLP, Unsecured debt, Dividends, Data, Option (finance), Debt, Precondition, Unsecured creditor, Federal Trade Commission (USA), Lehman Brothers
    Authors:
    Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Notice of intended dividend; bar date of December 31, 2010, established for preferential and unsecured claims against LBIE
    2010-01-06

    The Joint Administrators (the “Administrators”) of Lehman Brothers International (Europe) (“LBIE”) have issued a notice, dated December 4, 2009 (the “Notice”), pursuant to Rule 2.95(1) of the U.K. Insolvency Rules 1986, announcing their intent to make a distribution (by payment of an interim dividend) to preferential creditors (if any) and unsecured, non-preferential creditors of LBIE. The Notice was authorized on December 2, 2009, by an order of the High Court of Justice (Companies Court) in London (the “U.K. Court Order”).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Schulte Roth & Zabel LLP, Unsecured debt, Dividends, Debt, Lehman Brothers, High Court of Justice
    Location:
    United Kingdom
    Firm:
    Schulte Roth & Zabel LLP
    Claim resolution agreement, segregated assets, U.K. high court rulings
    2009-12-17

    As previously described in our Alert of Oct.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Share (finance), Conflict of laws, Unsecured debt, Debt, Liquidation, Election, Pro rata, Lehman Brothers, High Court of Justice
    Authors:
    Lawrence V. Gelber , Craig Stein , Ron Feldman
    Location:
    United Kingdom
    Firm:
    Schulte Roth & Zabel LLP

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