Bankruptcy Finance & Banking

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The Fisker Case and Its Impact on Distressed M&A

As is well known, the right to credit bid is the entitlement of a secured lender to bid the amount of its outstanding claims at the sale of its collateral. If the secured lender places the winning bid, no money is exchanged...more

Claims Against Failed Banks Must Go Through the FDIC’s Administrative Claims Process

As described in a previous post, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) requires that anyone with a claim against a failed bank must file a claim with the FDIC within 90 days of being...more

The Fisker Decision – Possible Far Reaching Implications for Buyers of Distressed Debt

Buyers and sellers of distressed debt should be aware of the recent decision in the Fisker bankruptcy case, In re Fisker Automotive Holdings, Inc., 2014 WL 210593 (Bankr. D. Del.), which drastically limited the right of a...more

Equity Investors: Be ForeWARNed

The Worker Adjustment Retraining and Notification Act (WARN Act) requires certain employers to give employees 60 days’ notice of plant closings and mass layoffs. The goal of the WARN Act is to “provide workers and their...more

Court Compels Production Of Information Exchanged Between Insurer And Reinsurer As Relevant To Construction Of Policy

In a declaratory relief action brought against the FDIC by the liability insurer for the directors and officers of a bank in receivership, the court resolved a discovery dispute that included a contested request for...more

SCOTUS Denies Certiorari In Lien Stripping Case

On March 31, the U.S. Supreme Court denied a petition for a writ of certiorari in an Eleventh Circuit case that raises the issue of whether, under section 506(d) of the Bankruptcy Code, a chapter 7 debtor can “strip off” a...more

Deviation From Statutory Scheme In Sale Of Receivership Property

The sale of real and personal property in a receivership estate is governed by 28 U.S.C. §§ 2001 and 2004, and both contain procedures for both a public and private auction of property. Regarding personal property, § 2004...more

New value defense preserved for three-party transactions

New value is an important defense to preference liability under the Bankruptcy Code. It allows a preference defendant to relieve their preference liability on a dollar-for-dollar basis for the value provided to the debtor...more

And the Bidding Starts At . . .? The Impact of Two Recent Bankruptcy Decisions On Determining Foreclosure Sale Bids

In today’s economy, banks all too commonly find themselves foreclosing on real property collateral. As a result, banks are regularly in the position of having to determine the starting bid in foreclosure proceedings. This...more

Playing Zone(-ing) Defense

ZONE(-ING) DEFENSE --- With March Madness in full swing, now is a great time to review how local zoning ordinances can turn a mortgage servicer’s foreclosure layup into a blocked shot. Many U.S. states rely on a judicial...more

Eleventh Circuit Holds Replacement Value - Applies to Surrender of Collateral in Chapter 13 Plan

On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of secured creditors. The issue in In re Brown, 13-13013, 2014 WL...more

Not Dead Yet? How BigLaw's Best Firms Are Finding Growth  [Video]

Apr. 2, 2014 (Mimesis Law) -- Kent Zimmermann, consultant to law firms for The Zeughauser Group, tells Lee Pacchia that despite years of negative press heralding the end of BigLaw's best years, there are tangible signs of...more

Editorial: In re Fisker Automotive Holdings, Inc., "I Got A Brand New Car, And I'm Feeling Good So Far"

Without question, the bedrock of bankruptcy, particularly a successful one, is consent. Indeed, the notion of consent is threaded throughout the Bankruptcy Code and related law in respect of diverse issues ranging from the...more

Reform of French Insolvency Law Overview of The Executive Order of 12 March 2014

Executive Order n° 2014-326 of 12 March 2014 reforming French insolvency proceedings was published in the Official Journal of the French Republic (Journal officiel de la République Française) on 14 March...more

Unauthorized UCC Termination Filings No Longer Effective — Commentary on Recent Bankruptcy Decision

Article 9 and the Life of a UCC Financing Statement - Article 9 of the Uniform Commercial Code (UCC) provides the process by which a secured lender obtains, perfects and enforces a security interest in a debtor’s...more

The FDIC’s Administrative Claims Process for Failed Banks

Enacted by Congress after the Savings and Loan Crisis of the 1980s, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) gives the FDIC sweeping authority to resolve the problems posed by a failed...more

Identifying Further Restructuring Risks in Germany - Federal Court of Justice Clarifies Liability for Continuing the Business of...

The Financial Crisis, a difficult market situation and a tense liquidity status have led to remarkable difficulties for mid-sized businesses within the past years. Strategic and financial investors have and continue to...more

Sentinel Decision Prioritizes Protection of Securities and Futures Markets

On March 19, 2014, the U.S. Court of Appeals for the Seventh Circuit decided Grede v. FCStone, LLC, Nos. 13-1232, 13-1278 (7th Cir. Mar. 19, 2014), an opinion that reinforces the importance of the portability of investment...more

Spain amends tax treatment of debt restructuring

As a result of a substantial reform of the Insolvency Law, starting January 1, 2014 the tax treatment of debt restructuring modifies both Spain's Corporate Income Tax Law and its stamp duty regulations....more

Assignment of Rents May Not Allow Golf Course Lenders to See The Green

Much to the chagrin of golf course lenders, bankruptcy and appellate courts around the country have consistently held that a properly-perfected mortgage or security interest in golf course revenues, including cart rentals and...more

Dodd-Frank’s Intersection with the Bankruptcy Code Could Have Significant Impact for Unsecured Creditors

On February 11th, the three private plaintiff-appellants and eleven State plaintiff-appellants in State National Bank of Big Spring, et al. v. Jacob J. Lew, et al. filed briefs with the U.S. Court of Appeals for the District...more

Orrick's Derivatives in Review - March 2014

Publication of 2014 ISDA Credit Derivatives Definitions - On February 21, the International Swaps and Derivatives Association, Inc. announced the publication of the 2014 ISDA Credit Derivatives Definitions, which...more

Polsinelli Podcast - Claims Trading: Opportunity or Hazard? [Video]

Its been called one of the single most important developments in the bankruptcy world since the Bankruptcy Code's enactment in 1978. We’re talking about Claims Trading which has revolutionized bankruptcy by making it a much...more

Material Reform of the Spanish Insolvency Law

The Royal Decree Law 4/2014 of 7 March significantly amends the Spanish Insolvency Law, ostensibly in favor of refinancing agreements. With the approval of Royal Decree Law 4/2014 of 7 March on urgent measures...more

Lehman Waterfall Application and Game Station Decision

In another judicial decision springing from Lehman Brothers, as a result of the likely surplus in the estate of Lehman Brothers International (Europe) (in administration) (LBIE) after all the provable debts have been paid, Mr...more

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