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    Bankruptcy Court finds tenant cannot assume commercial lease after waiving rights to seek relief from forfeiture under California law
    2014-09-24

    The US Bankruptcy Court for the Central District of California (the "Court") recently upheld the validity of a commercial lease provision by which a debtor/tenant waived its rights to seek relief from forfeiture (i.e., termination) of the lease under California law. As a result, the debtor/tenant had no right in the bankruptcy case to assume the lease. In re Art and Architecture Books of the 21st Century, Case No. 2:13-bk-14135-RK (September 18, 2014).

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Real Estate, Katten Muchin Rosenman LLP, Leasehold estate, Waiver, US District Court for Central District of California
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Delaware court enforces subordination agreements despite senior indenture trustee’s late filing of senior claims
    2014-07-29

    The United States District Court for the District of Delaware, on July 21, 2014, held that an indenture trustee’s late filing of senior claims did not waive the lenders’ contractual subordination rights, reversing the bankruptcy court. In re Franklin Bank Corporation, 2014 U.S. Dist. LEXIS 98327 (D. Del. July 21, 2014). Nor did the senior trustee’s late filing show inequitable conduct warranting equitable subordination of the tardily filed senior claims to timely filed junior claims.

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Waiver, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Wave goodbye to bankruptcy waivers? (court rules LLC’s prepetition waiver of bankruptcy protection contrary to public policy)
    2014-05-30

    Secured creditors naturally want to be repaid. Sometimes secured creditors go as far as asking a debtor to waive its right to seek bankruptcy protection. Although such clauses are frequently held to be unenforceable, we previously have discussed exceptions for LLCs.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Waiver, Secured creditor, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Oregon Bankruptcy Court refuses to enforce bankruptcy waiver in LLC operating agreement
    2014-05-13

    The Bankruptcy Code impairs lenders’ rights in various ways.  Accordingly, lenders have long attempted to devise methods of preventing borrowers from filing for bankruptcy protection.  Such attempts generally have not been successful -- courts hold that as a general matter, a borrower’s pre bankruptcy waiver of the right to file bankruptcy is against public policy and is void.  See, e.g., Klingman v. Levinson,831 F.2d 1292, 1296 n.3 (7th Cir.

    Filed under:
    USA, Oregon, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Bankruptcy, Debtor, Waiver, Limited liability company, Ninth Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Holland & Hart LLP
    Oregon bankruptcy court throws out pre-bankruptcy waiver
    2014-05-12

    The inclusion of pre-bankruptcy waivers in “standard issue” credit documents has generated a host of litigation in bankruptcy cases about the enforceability of such provisions.

    Filed under:
    USA, Oregon, Insolvency & Restructuring, Litigation, Bracewell LLP, Bankruptcy, Debtor, Waiver, Covenant (law), United States bankruptcy court
    Location:
    USA
    Firm:
    Bracewell LLP
    Supreme Court set to rule on waiver of Article III rights
    2014-04-30

    Bankruptcy practitioners are anxiously awaiting a U.S. Supreme Court ruling that will determine whether a party can waive its right to trial before an Article III tribunal.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Bankruptcy, Debtor, Waiver, Federal Reporter, Article III US Constitution, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Burr & Forman LLP
    Proof of claim could cost you your privilege
    2014-02-07

    Bankruptcy Court Holds Attorney's Signature on Proof of Claim Form Renders Attorney a Fact Witness to Allegations in Proof of Claim, Waiving Attorney-Client and Work-Product Privileges

    Filed under:
    USA, Insolvency & Restructuring, Legal Practice, Litigation, Akerman LLP, Waiver, Work-product doctrine, Attorney-client privilege, Witness, Prima facie, United States bankruptcy court
    Authors:
    Steven R. Wirth , Jason L. Margolin
    Location:
    USA
    Firm:
    Akerman LLP
    Ninth Circuit prohibits bankruptcy courts from entering judgments on fraudulent conveyance claims against non-claimants
    2012-12-13

    The Ninth Circuit recently held that: (1) bankruptcy courts lack the constitutional authority to enter a final judgment on all fraudulent transfer claims against non-claimants, whether brought under state or federal law, and (2) a defendant can waive such an argument by not asserting the applicability of Stern v. Marshall1 at the trial level.2 Further, in dicta, the court noted that bankruptcy courts may issue proposed findings of fact and conclusions of law in matters in which the bankruptcy court cannot issue final orders.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Waiver, Title 11 of the US Code, US Constitution, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Can you preserve your claims against a borrower after filing a 1099-C cancellation of debt?
    2012-06-25

    Borrowers who file a bankruptcy petition are always looking for creative new challenges to claims asserted by their bank creditors.  In recent years, debtors have argued that a bank’s issuance of an Internal Revenue Code form 1099-C “Cancellation of Debt” has the effect of waiving the bank’s claims against the borrower, and should preclude the bank from having an allowed claim in the bankruptcy case.  Fortunately, some recent court opinions state that a bank’s issuance of a 1099-C does not constitute a waiver, and the bank remains entitled to enforce its claim in a subsequent bank

    Filed under:
    USA, North Carolina, Banking, Insolvency & Restructuring, Litigation, Poyner Spruill LLP, Bankruptcy, Debtor, Waiver, Debt, Internal Revenue Code (USA)
    Authors:
    Diane P. Furr , Lisa P. Sumner
    Location:
    USA
    Firm:
    Poyner Spruill LLP
    Court finds defendants knowingly waived right to jury trial, affirms such waivers must be clear
    2011-12-19

    Lehman Brothers Holdings, Inc. v. Bethany Holdings Group, LLC, et al., 2011 WL 3427013, (S.D.N.Y. Aug. 5, 2011)

    CASE SNAPSHOT

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Reed Smith LLP, Surety, Waiver, Jury trial, Default (finance), Lehman Brothers
    Authors:
    Kathleen A. Murphy
    Location:
    USA
    Firm:
    Reed Smith LLP

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