Commercial Real Estate Civil Procedure Bankruptcy

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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

Northern District of New York Bankruptcy Court Rules On Issue of First Impression Concerning Lien Stripping in A Chapter 7 Case

“Lien stripping” often takes two forms. A debtor’s attempt to void the unsecured portion of a lien when there is some but not enough equity in collateral to fully cover a lienholder’s entire debt is commonly referred to as a...more

E.D.N.C. Bankruptcy Court Rules that Borrower Can Raise Unfair and Deceptive Trade Practices Claims Against Lender Based on...

Does a lender have a duty to act in good faith when negotiating with a borrower during a commercial loan modification? In an order issued recently by the United States Bankruptcy Court for the Eastern District of North...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

United States v. Susquehanna Bank

Memorandum Opinion

Maryland's federal district court rejected the IRS contention that internal IRS regulations wipe out state recording statutes and the "relation back" principle that gives deeds an effective date prior to actual recording. The...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: Garnishing Professional Fees After Close of Bankruptcy Proceeding

It is not an uncommon practice for commercial lenders or real estate owners to employ a broker to assist with the sale of property for a commission. Recently, a corporation owning a marina in South Florida filed for Chapter...more

U.S. Bank, Nat’l Ass’n v. Lightstone Holdings, LLC (N.Y. App. Div. Feb. 14. 2013) -- Senior Lender Gets Second Chance to Assert...

A recent decision in the protracted litigation by lenders of Extended Stay to recover under guaranties executed by owners of Extended Stay highlights the need for clear and unambiguous drafting in intercreditor agreements....more

United States of America v. Susquehanna Bank

Appellee's Brief

The Internal Revenue Service appealed a grant of summary judgment favoring Mr. Valkenet's client, Susquehanna Bank. The Maryland bankruptcy court granted the bank's indemnity deed of trust priority over IRS tax liens by...more

2012 Year In Review – Part 1

In This Issue: - March 9, 2012: Publication of Dynegy Examiner’s Report - March 29, 2012: SDNY Rules That 363 Sales May Not Be Free and Clear of Future Claims - May 15, 2102: Eleventh Circuit Rules in...more

Susquehanna Bank v. United States (In re: Restivo Auto Body, Inc.)

Order granting summary judgment

U.S. Bankruptcy Judge Robert Gordon entered an order granting summary judgment in favor of Susquehanna Bank, and against the IRS, declaring the bank has lien priority and thus may claim the fund created by the sale of the...more

SCOTUS: Secured Creditors Cannot Be Denied the Right to Credit-Bid

On May 29, 2012, the United States Supreme Court decided Radlax Gateway Hotel, LLC v. Amalgamated Bank, ruling that secured creditors cannot be denied the right to credit-bid on the sale of property or assets in the context...more

It’s Indubitable: Supreme Court Upholds Secured Creditors’ Unequivocal Right to Credit Bid at Plan Sales

Much to the anticipation of the bankruptcy community, on May 29, 2012 the Supreme Court of the United States issued a decision in RadLAX Gateway Hotel, LLC v. Amalgamated Bank and put an end to the split among the Circuit...more

Bankruptcy Court Determines that Property Transfer by Corporation in Which Debtor Holds a 50% Interest Does Not Constitute a...

The United States Bankruptcy Court for the District of New Jersey recently found that a debtor’s transfer of property owned by a corporation in which the debtor allegedly held a 50% interest did not automatically constitute a...more

TOUSA 3.0: Eleventh Circuit Holds Lenders to High Standards

In a much anticipated opinion, In re TOUSA, Inc., --- F.3d ----, 2012 WL 1673910 (11th Cir. May 15, 2012), the Eleventh Circuit Court of Appeals has resolved a disagreement between the Bankruptcy Court and District Court for...more

Supreme Court Confirms that Credit Bidding is Alive and Well

Today, the Supreme Court of the United States issued its much awaited decision in RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. ______ (2012). The noteworthy decision resolves any uncertainty surrounding a secured...more

Supreme Court Resolves Conflict in Circuit Courts Regarding Credit Bidding

On May 29, 2012, the United States Supreme Court resolved a split among the federal courts of appeals on an important bankruptcy issue, agreeing with arguments Morrison & Foerster advanced on behalf of Amalgamated Bank. In a...more

RadLAX Review – Supreme Court Requires Debtor to Permit Credit Bidding

The Supreme Court held 8-0 that section 1129(b)(2) of the bankruptcy code requires that if a debtor proposes to sell property under a plan of reorganization it must permit secured lenders to submit credit bids in the sale...more

Mezzanine Borrower’s Chapter 11 Case Filed on Eve of Foreclosure Sale Dismissed as a Bad Faith Filing

On December 22, 2011, Judge Mary F. Walrath of the U.S. Bankruptcy Court for the District of Delaware dismissed with prejudice a mezzanine borrower’s chapter 11 case. See In re JER/ Jameson Mezz Borrower II LLC, 461 B.R. 293...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

Seventh Circuit Affirms Secured Creditors’ Cramdown Rights

On January 19, 2012, the United States Court of Appeals for the Seventh Circuit in an opinion penned by Judge Richard Posner affirmed a bankruptcy court’s dismissal of In re River East Plaza, LLC, a single asset real estate...more

An [In]Subordinate Lender: Delaware Bankruptcy Court Dismisses Mezzanine Borrower's Chapter 11 Case for Bad Faith

In an opinion that has wide-ranging implications for the structured finance industry, the Delaware bankruptcy court recently dismissed a mezzanine borrower’s chapter 11 case as a bad faith filing pursuant to section 1112(b)...more

Important Changes to Federal Bankruptcy Rules Effective December 1, 2011 by Patricia Antonelli, Esq.

Mortgage holders and servicers should prepare for important changes to Federal Bankruptcy Rules of Procedure ("FRBP"), effective December 1, 2011, including requirements for new forms. The changes to FRBP 3001, the...more

Court Limits a 'Self-Settling Trust or Similar Device' to an Express Trust

In In re Porco Inc., the Bankruptcy Court for the Southern District of Illinois in a March 30 opinion addressed an issue of apparent first impression: whether a resulting or constructive trust is a "self-settling trust or...more

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