Finance & Banking Bankruptcy Civil Procedure

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First Circuit: Sending Form 1099-A Post-Chapter 7 Discharge Does Not Violate the Discharge Injunction

On December 14, 2016, the United States Court of Appeals for the First Circuit affirmed the New Hampshire Bankruptcy Court and District Courts’ findings that a mortgage lender sending Internal Revenue Service Form 1099-A to a...more

Second Circuit Court of Appeals Overturns District Court Decision in Marblegate Regarding Section 316(b) of Trust Indenture Act

On January 17, 2017, the US Court of Appeals for the Second Circuit ruled in favor of the defendant in Marblegate Asset Management, LLC v. Education Management Finance Corp., by vacating the decision of the District Court for...more

The Problem of Lender "Inquiry Notice" Status

If a lender is fully secured, can it just ignore suspicions of borrower misconduct? The danger is that a lender could lose its collateral under these circumstances and be treated as an unsecured creditor. This is exactly...more

A Secured Lender Must Receive Default Interest Under a Chapter 11 Plan Purporting to Cure a Defaulted Loan in the Ninth Circuit

A recent Ninth Circuit decision overturned earlier case law allowing debtors to avoid paying default interest when a defaulted loan was "cured" through a confirmed plan of reorganization. In Pacifica L 51 LLC v. New...more

The Intersection of Bankruptcy, Debt Collection and the Supreme Court

For years the interplay between the Bankruptcy Code and the Fair Debt Collection Practices Act (FDCPA) has vexed creditors and courts alike, leading to a split among the circuits as to whether the Bankruptcy Code preempts the...more

Simplified procedure for initiating bankruptcy by the legal successors of banks

In October 2016, the Chamber for Commercial Disputes at the Supreme Court of the Russian Federation considered the cassation appeal of Eurasian Trading Company LLC (hereinafter – the Trading Company) in Case ? ?57-16992/2015...more

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

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