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Post-Petition Transfers: Sixth Circuit Opines on 11 U.S.C. § 542 versus § 549

The United States Bankruptcy Appellate Panel of the Sixth Circuit recently clarified whether a trustee could rely upon 11 U.S.C. § 542, and in the process side-step 11 U.S.C. § 549, to recover an unauthorized post-petition...more

Do You Blur the Lines Between Your Separate Companies? The Courts Might Too.

Is your business divided into separate entities? It isn’t an uncommon practice. Business owners often establish separate legal entities to manage different aspects of their business. One reason for doing so is to prevent the...more

Allegedly Time-Barred Foreclosures Do Not Form Basis for FDCPA/FCCPA Lawsuits Outside Bankruptcy Context

In an order issued yesterday, Judge Dalton of the Middle District of Florida held that in a non-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a...more

US Lenders - Missing Parenthesis Could Cost You a Bundle

As the case of NNN Realty shows, years of litigation and legal costs could be avoided with proper use of punctuation marks. A lender made a secured real estate loan to several entities who owned the real estate as tenants in...more

CFPB files SCOTUS amicus brief in FDCPA case on filing bankruptcy proof of claim on time-barred debt

The CFPB has filed an amicus brief in the U.S. Supreme Court in support of the respondent/consumer in Midland Funding, LLC v. Aleida Johnson, a decision of the Eleventh Circuit that held Midland’s alleged filing of an...more

Debtors Who Misuse Collateral Can Lose the Benefit of Discharging their Debt in Bankruptcy

On November 21, 2016, in a case entitled In re Monson, the Eleventh Circuit Court of Appeals affirmed the Bankruptcy Court’s decision, which held that a debtor’s conduct constituted a willful and malicious injury to a...more

Exercise of Post-Petition Right to Setoff Without Court Permission Violated Automatic Stay

On November 16, 2016, the United States Bankruptcy Court for the Western District of Kentucky found that a creditor exercising its post-petition right to setoff without bankruptcy court permission had violated the automatic...more

Changes to Bankruptcy Rule 3002.1 Affect Mortgage Lenders

Almost every year, changes are implemented to the Federal Rules of Bankruptcy Procedure. On December 1, 2016, this year’s changes to the Bankruptcy Rules went into effect. The changes include revisions to Bankruptcy Rule...more

Yellowstone and the Barton Doctrine in the Third Circuit

The Barton doctrine, which has been imposed in “an unbroken line of cases … as a matter of federal common law,” In re Linton, 136 F.3d 544, 545 (7th Cir. 1998) (Posner, J.), requires that plaintiffs “obtain authorization from...more

Punt, Pass or Kick? Supreme Court Struggles With Jevic at Oral Argument

The U.S. Supreme Court heard oral arguments this week in the case of Czyzewski v. Jevic Holding Corp. Although veteran Court watchers caution about seeking to predict ultimate rulings based on justices’ questions and stated...more

Federal Appellate Court Rules That Post-Acceleration Payment in Bankruptcy Constitutes Optional Redemption

The linked Mintz Levin client advisory discusses a recent Third Circuit Court of Appeals ruling that held a “make-whole” optional redemption premium to be due upon a refinancing of corporate debt following its automatic...more

Supreme Court Weighs Granting Cert on Bankruptcy Issues Involving Surcharge and Voting Rights of Assignee of Insider Claim

The Supreme Court is considering whether to grant review of two bankruptcy cases. On October 3, 2016, the Supreme Court invited the Solicitor General to file briefs expressing the views of the United States. Because the...more

Third Circuit Enforces Make-Whole Premium for Notes Accelerated by Bankruptcy Filing

Some term loans allow borrowers to redeem debt. But to protect a lender’s expected yield, such loans often impose a “make-whole premium” on redemption. That is, they require compensation to the lender for the borrower’s...more

Clarity on Clawback Claims in Cayman

The Cayman Islands Court of Appeal recently smoothed the path for Cayman liquidators to pursue clawback claims. The decision clarifies the Cayman courts’ approach to voidable preference payments, making it easier for Cayman...more

Third Circuit Court of Appeals: Energy Future Required to Pay Make-Whole Payments

In a decision released on November 17, 2016, the Third Circuit Court of Appeals reversed the holding of the Delaware Bankruptcy Court, affirmed by the District Court, that EFIH is not required to pay make-whole payments. In...more

Third Circuit Upholds The Enforceability Of Make-Whole Premiums In Post-Bankruptcy Context

In a recent November 17, 2016 opinion, Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC, Case No. 16-1351, the Third Circuit Court of Appeals reversed two lower court opinions by holding that make-whole...more

Third Circuit Rules Make-Whole Provisions Enforceable in the Energy Future Bankruptcy

On November 17, the U.S. Court of Appeals for the Third Circuit (the “Court”) made clear its stance on the question of enforceability of make-whole provisions in bankruptcy. Bucking the recent trend seen in cases such as In...more

Third Circuit Rules in Favor of Noteholders on Make-Whole Provision in Debt Indenture

Debt indentures often contain what is known as a “make-whole” provision, which requires the borrower, upon an early repayment of the debt, to make an additional payment to the lender to compensate the lender for its...more

EFIH Noteholders Find Redemption for the Payment of Make-Whole Premiums

On November 17, 2016, the United States Court of Appeals for the Third Circuit issued a decision in which it held that holders of first lien notes and second lien notes of Energy Future Intermediate Holding Company LLC and...more

Consumer Data Privacy in Bankruptcy

Bankruptcy law and privacy law may appear to be wholly separate areas of the law, but they overlap more than one might anticipate. Balancing individual rights and interests to achieve a social good is at the heart of both...more

How Do I Distribute Funds When One Of The Parties Provides A Social Security Number That Is Not His?

QUESTION: I am getting ready to close my receivership and distribute the funds in the estate to the two parties. I have just learned that the Social Security number one of the parties gave me is not his. What should I do?...more

Triumph for Energy Future Noteholders in Third Circuit Make-Whole Decision

On November 17, 2016, in Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC (In re Energy Future Holdings Corp.), Case No. 16-1351 (3d Cir. Nov. 17, 2016), the United States Court of Appeals for the Third...more

Eleventh Circuit Holds that a Debtor who Elects to “Surrender” Real Property Cannot Oppose the Lender’s Foreclosure Case

In In re Failla, 838 F.3d 1170 (11th Cir. Oct. 4, 2016), the Eleventh Circuit resolved a split among Florida bankruptcy judges by ruling that a debtor who elects to "surrender" real property during its bankruptcy case cannot...more

Seeking Punitive Damages Can Expand Scope of Discovery

As litigators are well aware, a lawsuit frequently begins and ends with discovery. Complaints must be carefully worded and allegations carefully chosen in order to maximize success in developing a record and in exploring...more

Ninth Circuit Reverses Itself on Payment of Default Interest in Cure Cases

Reversing its long standing precedent, the U.S. Court of Appeals for the Ninth Circuit held that when a chapter 11 debtor cures a default under its loan agreements, the debtor is required to pay default interest as required...more

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