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    Creditors' interests come first
    2010-06-24

    In Pick v Sumpter and another, the first defendant's trustee in bankruptcy applied for an order for possession of the defendants' matrimonial home. At the hearing in May 2006, the evidence showed that the sum outstanding as at November 2005 was £25,571 but did not take into account legal costs. That sum was an estimate and did not take into account statutory interest on the bankrupt's debts beyond the date of the hearing, solicitor's costs of the possession hearing or any increase or decrease in the trustee's remuneration.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Costs in English law, Unsecured debt, Interest, Debt, Trustee
    Authors:
    Ian Weatherall , Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    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
    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
    Oversecured lender's contractual prepayment penalty held enforceable as unsecured claim against solvent debtor
    2007-11-16

    The Court of Appeals for the First Circuit recently held that an oversecured lender holds at least an unsecured claim for contractual prepayment penalties against a solvent debtor. UPS Capital Business Credit v. Gencarelli (In re Gencarelli), 2007 BL 91656 (1st Cir., Aug. 30, 2007). As the court explained, "[t]his is a difficult question that has significant ramifications for the commercial lending industry." Id. at 16.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Shareholder, Debtor, Unsecured debt, Statutory interpretation, Interest, Federal Reporter, Remand (court procedure), Secured creditor, Secured loan, Sixth Circuit, First Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Sixth Circuit affirms rejection of bad faith chapter 11 plan
    2016-02-12

    A Chapter 11 debtor’s impairment in its reorganization plan of two unsecured claims filed by its former lawyer and accountant “was transparently an artifice to circumvent the purposes of” the Bankruptcy Code (“Code”), held the U.S. Court of Appeals for the Sixth Circuit on Jan. 27, 2016. In re Village Green I G.P., 2016 WL 325163, at *2 (6th Cir. Jan. 27, 2016).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Unsecured debt, Sixth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit affirms dismissal of creditors' committee equitable subordination complaint
    2007-08-20

    The U.S. Court of Appeals for the Second Circuit, on July 9, 2007, decisively affirmed a bankruptcy court's dismissal of an equitable subordination complaint filed by a creditors' committee against eight investment fund lenders. Official Committee of Unsecured Creditors of Applied Theory Corporation v. Halifax Fund, L.P., et al. (In re Applied Theory Corporation), ___ F.3d ___, 2007 U.S. App. LEXIS 16180 (2d Cir. July 9, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Unsecured debt, Federal Reporter, Standing (law), Limited partnership, Investment funds, Secured creditor, Unsecured creditor, Secured loan, Second Circuit, United States bankruptcy court, Fourth Circuit, Trustee
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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