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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

Real Estate Cases: You May Want to Think Twice Before You File

Branch Bank & Trust Co. v. Michael’s Enterprises of Virginia, Inc. (In re Michael’s Enterprises of Virginia, Inc.), 519 B.R. 916 (Bankr. E.D. Va. 2014)  – A mortgage lender sought sanctions against the debtor, its sole...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

Tenants Beware: Your Landlord’s Bankruptcy Could Result in a Lost Lease

It is unfortunate, but true: a commercial tenant may someday be required to deal with a bankrupt landlord. Any bankruptcy filing can be complicated and chaotic. But, a tenant faced with a landlord’s is more than just a...more

Potpourri Of Issues In Foremost Building Bankruptcy Sale

In In re Scimeca Foundation Inc., 497 B.R. 783 (Bankr. E.D. Pa. 2013), a Chapter 7 trustee sought court approval for a sale of the debtor’s property and resolution of related issues over the objections of the debtor. In...more

Florida Law on Assignment of Rents Provisions

A recent bankruptcy decision from a New Jersey Bankruptcy Court (In re Surma, 504 B.R. 770 (Bankr. D.N.J. 2014)) has once again drawn attention to the effect assignment of rents provisions in mortgages can have, depending on...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

Appeal Court Re-Writes Rules Relating to Insolvent Tenants

Landlords' set to obtain "full value" as a result of re-statement of ancient equitable principle - Pillar Denton Limited and others v Jervis and others - Outline - In a ruling relating to the stricken...more

Can a Defendant Sue a Receiver’s Property Management Company, or Are They Protected from a Lawsuit Like a Receiver?

I hired a property management company to aid me in managing a receivership property. A defendant in the case has threatened to sue the management company for action taken at my request. Can the defendant sue the management...more

Chapter 11 Bankruptcy Basics: Debtor In Possession

Many companies that file for Chapter 11 bankruptcy protection do not end up in a rapid liquidation. Some, after a successful reorganization period, emerge from the bankruptcy process still viable and financially healthy. ...more

Litigation News -- Summer 2013

In This Issue: "Can Bankruptcy Be A Tool To Combat Eminent Domain? Probably Not" and "Finding the Facts Before the Lawsuit Begins: Pre-Complaint Discovery in Pennsylvania" Excerpt from Can Bankruptcy Be A Tool...more

In re Swift

Chief Bankruptcy Judge Avoids Post-Petition Transfer 19 Years After Bankruptcy Filing

The Debtor failed to disclose, among other things, the existence of certain real estate interests in his schedules in a Chapter 7 case filed in 1994. The Chapter 7 Trustee objected to discharge for failing to disclose all...more

Rogers Towers: Denying Discharge for Passive Falsification of Financial Statements

As we have discussed in previous posts, if a debtor actively falsifies a financial statement to obtain a loan, such debt is not dischargeable in a subsequent bankruptcy proceeding under § 523(a)(2)(B) of the Bankruptcy Code....more

Louisiana Receivers In Foreclosure - "Keep-er Away From My Collateral!!" Part II

In my prior post, I discussed (1) what a keeper is and (2) why you should designate a Keeper. This post examines (3) the benefits of a Keeper and (4) some risks relating to a Keeper....more

The Tide Turns Against Hybrid Plans in the Circuit Where They Began

In this article from the February 2013 ABI Journal, I review the reasoning of several recent decisions which depart from previous precedent permitting the treatment of real estate loans beyond the term of a chapter 13 plan....more

Rogers Towers: A Troubling Interpretation: Prepetition Foreclosures as Preferential Transfers under § 547

As stated in Doug Waldorf’s post below, the concept of property valuation in regards to a deficiency judgment is well established within the Eleventh Circuit. The fair market value of the property is established at the...more

State Law Update: Michigan Excludes Certain Loans From State Mortgage Laws, Extends Loan Modification Program

On December 22, Michigan Governor Rick Snyder signed three bills—SB 1283, SB 1284, and SB 1285—to exclude from state mortgage laws, including its predatory lending law and loan originator licensing act, any loan transaction...more

A New Kind of PIN: Essential Requirements for Recording Deeds of Trusts in North Carolina

The Fourth Circuit Court of Appeals recently ruled in the case of In Re: McCormick that a recorded North Carolina deed of trust indexed in a county’s grantor/grantee index may nevertheless be avoided by a trustee in...more

Who owns the rents? Recent cases highlight uncertainty as to effect of mortgage rent assignments in New York bankruptcies

Originally published in the August 27, 2012 issue of Thomson Reuters News & Insight. Amid the recent proliferation of commercial mortgage defaults in New York, the question of whether property of a debtor’s bankruptcy...more

What Constitutes a "Mortgage" Under Illinois Law?

A ruling by a Bankruptcy Court in Illinois that a bankruptcy trustee could avoid two mortgages which utilized a standard form used by the lending industry would constitute a precedent opening the door to avoidance of...more

New Opinion Addressing Automatic Stay Relief in Single-Asset Real Estate Cases (In re 2655 Bush LLC, Bankr. N.D. Cal.)

Read the opinion here: http://chapter11cases.com/new-bankruptcy-opinion-in-re-2655-bush-llc-bankr-court-nd-california-2012-case-no-12-30388-tec-issue-automatic-stay-relief-in-single-asset-real-estate-case/ Summary In a...more

Breaking News: Insurance Coverage for "Hidden" Mechanics' and Materialmen's Lien Claims in North Carolina is Disappearing

Even in good economic times, lien claims asserted by subcontractors and material suppliers abound and lead to costly disputes. As in many states, North Carolina’s materialmen’s lien statutes create a system where “hidden” or...more

If It Looks Like a Duck, err, a SARE Debtor...

Recently, the Ninth Circuit Court of Appeals brought smiles to the faces of many lenders (especially Bank of America, the appellee and secured lender) when it refused to combine the assets of related debtors without a...more

Susquehanna Bank v. United States of America (In Re Restivo Auto Body, Inc.

Plaintiff's memo of law in support of it's motion for summary judgment against the IRS

A lender holding $1 Million lien on bankrupt's real property sued for lien priority over approximately $200,000 in IRS liens attaching to the same property. The parties filed cross-motions for summary judgment, based on very...more

Ninth Circuit Issues a Bankruptcy Opinion Favorable to Lenders to SPEs

In its recent decision in Meruelo Maddux Properties, Inc., the Court of Appeals for the Ninth Circuit held that an entity that meets the definition of a “single real estate” debtor under the Bankruptcy Code...more

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