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Distressed Downloads - June 2015

A Battle in the Making in the Oil and Gas Sector: Second Lien vs. High Yield Debt - In the oil and gas industry, there is a storm brewing between holders of second lien debt and unsecured high yield bonds. These...more

"Strip, Strip Hooray!" - Supreme Court Settles Chapter 7 Lien-Stripping Debate

Twenty-three years after initially visiting the issue, the United States Supreme Court has recently settled what some would call “the single most important unresolved issue in consumer bankruptcy” - whether Chapter 7 permits...more

Supreme Court Reaffirms a Chapter 7 Debtor's Inability to Strip a Lien Against Real Property

Reaffirming its 1992 decision in Dewsnup v. Timm, on June 1, 2015, the U.S. Supreme Court in Bank of America v. Caulkett, No. 13-1421, once again ruled that a chapter 7 debtor may not void a junior lien under Bankruptcy Code...more

U.S. Supreme Court Holds that Out of the Money Mortgages Cannot be Stripped Off in Chapter 7 Bankruptcy Cases

The U.S. Supreme Court held that a secured creditor in a chapter 7 bankruptcy case is protected from having its lien “stripped off” even if the collateral securing its claim is worth less than the claims asserted by a senior...more

Supreme Court Decides Bank of America v. Caulkett and Bank of America v. Toledo-Cardona

On June 1, 2015, the United States Supreme Court decided Bank of America v. Caulkett, No. 13-1421, together with Bank of America v. Toledo-Cardona, No. 14-163, holding that a debtor in a Chapter 7 bankruptcy proceeding may...more

Payments to Investors in a Securitization Structure Protected from Avoidance

In what appears to be a matter of first impression, the U.S. Bankruptcy Court for the Northern District of Illinois recently held that payments made to investors in a two tiered securitization structure commonly employed in...more

Foreclosure Sales: When Is the “Deed” Done?

In re Betchan, 524 B.R. 830 (Bankr. E.D. Wash. 2015) – A mortgagee was the highest bidder at a foreclosure sale that took place shortly before the debtor filed bankruptcy. The lender requested relief from the...more

LIHTC exit strategies: Right-sizing the loan

Note: This post is part of a continuing series on the Credit Report Blog on the subject of workouts and bankruptcies involving low-income housing tax credit (LIHTC) projects...more

Should Underwater Junior Liens Survive Bankruptcy?

On March 24th, the Supreme Court heard oral argument on the consolidated appeals of two decisions from the Eleventh Circuit Court of Appeals, Bank of America v. Caulkett and Bank of America v. Toledo-Cardona. The appeals...more

Banking & Financial Services E -Note - March 2015

In This issue: - 6 Things You Need to Know Before Filing Chapter 11 Bankruptcy - Don’t Get Left in the Dark: Pre-eviction Noticing Requirements Following Sunset on the Protecting Tenants at Foreclosure...more

Manufactured Home Lien: Forget Perfection, You Need To Have A Lien In The First Place

Morris v. Ark Valley Credit Union (In re Gracy), 522 B.R. 686 (Bankr. D. Kan. 2015) – A chapter 7 trustee sought to avoid a credit union’s security interest in a manufactured home by asserting his strong arm powers as a...more

Land Contracts: Mortgage Priority and Other Complications

Liebzeit v. Intercity State Bank (In re Blanchard), 520 B.R. 740 (Bankr. E.D. Wis. 2014) – A Chapter 7 trustee sought to avoid a mortgage on the debtors’ property using the “strong arm” powers of a hypothetical bona...more

Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void

In Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who...more

Leases and Bankruptcy

WHEN THE TENANT FILES BANKRUPTCY I. Before the Bankruptcy is Filed. The Bankruptcy Code, found at 11 U.S.C. §§ 101, et seq., creates a category of rights known as “executory contracts.” An executory contract, in...more

The valuation process for LIHTC projects in financial distress: Part II

Note: This post is part of a continuing series on the Credit Report Blog on the subject of workouts and bankruptcies involving low-income housing tax credit (LIHTC) projects....more

Rent-Stabilization Lease A “Public Benefit” For Exemption Purposes

Faced with bankruptcy, one of the foremost thoughts on an individual debtor’s mind is whether or not, upon exiting bankruptcy, the individual will retain any property he or she possessed prior to bankruptcy. Addressing this...more

Mortgage Recording: What Happens When There Is An Extra “E”?

Weiss v. JPMorgan Chase Bank, N.A. (In re Thibault), 518 B.R. 635 (Bankr. D. Mass. 2014) – A chapter 7 trustee sought to avoid a mortgage using his “strong-arm” powers on the basis that it was not properly recorded...more

Leases: Avoid Unnecessary Headaches With Precise Drafting

Charter v. Kearney (In re Colen), 516 B.R. 618 (Bankr. D. Or. 2014) – A chapter 7 trustee sued the tenants’ landlord to recover payment of a fee that he contended was illegal under state law. The issue turned on...more

What are the unique dynamics of a low-income housing tax credit workout?

Note: This post is part of a continuing series on the Credit Report Blog on the subject of workouts and bankruptcies involving low-income housing tax credit (LIHTC) projects. ...more

Rejecting Related Contracts: When Can You Pick and Choose?

In re Trinity Coal Corp., 514 B.R. 526 (Bankr. E.D. Ky. 2014) – The debtors sought to reject easement and disposal agreements with the owners of adjacent coal mines. The adjacent owners objected on the basis that the...more

Sales Free and Clear: What About Restrictive Covenants?

Heatherwood Holdings, LLC v. HGC, Inc. (In re Heatherwood Holdings, LLC), 746 F.3d 1206 (11th Cir. 2014) – A chapter 11 debtor owned property that had always been used as a golf course and club. When it requested that...more

Who Will Think of the Tenants: Split in Authority Regarding the Interplay Between Bankruptcy Code Sections 363(f) and 365(h)(1)(A)

A useful tool granted to trustees (and debtors-in-possession) in bankruptcy is the ability to assume or reject leases.1 The trustee can exploit this power to the estate's economic advantage, either assuming or rejecting the...more

Mortgage Enforcement: Dot Those “i”s and Cross Those “t”s – Or Else

A chapter 13 debtor objected to the portion of a mortgagee’s claim consisting of expenses related to foreclosure of its mortgage. She argued that since the mortgagee failed to comply with notice requirements under the...more

Bankruptcy Sales and Leases: “Free And Clear” May Not Be So “Free And Clear”

In approving the sale of a Chapter 11 debtor’s assets, a bankruptcy court found that a tenant of the debtor was entitled to continue in possession of the leased portion of the sold property for the remainder of its lease. ...more

Hold That ReFi! A Reason to Think Twice Before Entering Post-Petition Agreements with Discharged Debtors

After months of phone calls, loan modifications and discussions with borrowers, one finally receives the dreaded bankruptcy notice in the mail. A chapter 7, no-asset case, with the loan listed on the bankruptcy schedules as a...more

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