Finance & Banking Bankruptcy Civil Procedure

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The Viability of the Equitable Mootness Doctrine in the Third Circuit: A Moot Point?

In the bankruptcy context, effectively appealing an order confirming a debtor’s plan of reorganization is not always a sure bet, as a court may refuse to entertain the appeal in the name of equitable mootness. Equitable...more

English schemes of arrangement: some practical advice for proponents

Van Gansewinkel Groep BV, Re [2015] EWHC 2151 (Ch) - In what appears to be a growing trend, the High Court in England has sanctioned another scheme of arrangement involving non-English companies. Last week’s judgment...more

Naked Liens – Stripping Prohibited

In June, the US Supreme Court decided the case of debtors in bankruptcy desirous of stripping off a lender’s real estate lien that was fully in excess of the fair market value of the real estate. The Supreme Court unanimously...more

Orrick's Financial Industry Week in Review

RMBS Suit Against WMC Mortgage LLC Dismissed as Time-Barred - On July 10, 2015, Judge Alvin Hellerstein of the Southern District of New York granted defendant WMC Mortgage LLC's motion for judgment on the pleadings in an...more

California Supreme Court Grants Review of Homeowner's Wrongful Foreclosure Claims

On July 15, 2015, the California Supreme Court granted review of Boyce v. T.D. Service Company (2015) 235 Cal.App.4th 429. (Supreme Court Case No. S226267.) In Boyce, the Court of Appeal held that a plaintiff's wrongful...more

Home Sweet Homestead

Suppose a debtor denies owning a home and then gives a false address so creditors don’t find out about the home. Can the debtor still claim the homestead exemption in bankruptcy?...more

Delaware USDC Analyzes Contract Integration; Remands to Bankruptcy Court for Debtor to Assume or Reject One Integrated Agreement

On July 13, 2015, the United States District Court for the District of Delaware issued a memorandum opinion in Huron Consulting Services, LLC v. Physiotherapy Holdings, Inc. et al., Civ. No. 14-693-LPS. Chief Judge Leonard...more

The UK continues its objective stance on rescue procedures

The High Court has considered whether a winding-up petition is permitted where the Petitioner has a collateral purpose for bringing the petition. The collateral purpose, also referred to as an ulterior motive, would result in...more

Orrick's Financial Industry Week in Review

First Circuit Rules Bankruptcy Code Preempts Puerto Rico's Recovery Act - On Monday, July 6, the Court of Appeals for the First Circuit affirmed the February 6, 2015 order and injunction of the Puerto Rico District Court...more

U.S. Supreme Court Resolves Uncertainty Regarding Junior Mortgage Liens in Chapter 7 Proceedings

A recent U.S. Supreme Court case resolves uncertainty as to whether Bankruptcy Code Section 506(d) allows Chapter 7 Bankruptcy debtors to "strip off" (void) junior mortgage liens that are wholly underwater. That uncertainty...more

The Supreme Court Holds That a Bankruptcy Court’s Order Denying Confirmation of a Debtor’s Proposed Chapter 13 Plan Is Not a...

In a May 4, 2015 opinion1, the United States Supreme Court held that a bankruptcy court order denying confirmation of a chapter 13 repayment plan is not a final order subject to immediate appeal. The Supreme Court found that,...more

Intercreditor Agreements: Recognize That Second Lien Financings Are A Special Case Of Subordinated Lending

BOKF, N.A. v. JPMorgan Chase Bank, N.A. (In re MPM Silicones, LLC), 518 B.R. 740 (Bankr. S.D.N.Y. 2014) – Senior lienholders sued lenders holding junior liens on common collateral, arguing that the junior lienholders...more

Third Circuit Approves Use Of Structured Dismissals Of Chapter 11 Bankruptcies, but Rarely

On May 21, 2015, the United States Court of Appeals for the Third Circuit approved the settlement and dismissal of chapter 11 bankruptcy cases through a structured dismissal in rare instances. See Official Committee of...more

Despite Changing Economic Reality, Federal Court Holds Indian Tribes Have Sovereign Immunity in Bankruptcy, Absent Waiver

As the Indian gaming industry continues to thrive, Indian tribes are increasingly engaging in other commercial endeavors including banking, construction, energy, telecommunications, manufacturing, retail and more. Based on a...more

Schemes: Recognition or Parallel Schemes of Arrangement

In response to the turbulent economic times seen of late, there has been a significant growth in the use of schemes of arrangement to compromise creditors’ claims where the company in question is facing financial...more

Opinion Letter – Why And How Much Will It Cost?

An Opinon Letter is like an estoppel certificate issued by the borrower’s attorney regarding the borrowing entity and the loan documents. Borrowers may have an opportunity at the loan application stage to negotiate the...more

Recording Errors: A Typo Is Not Always Fatal

Deirdra Renee Gause v. Citifinancial Services, Inc. (In re Deirdra Renee Gause), 525 B.R. 35 (Bankr. M.D. N.C. 2014) – A chapter 13 debtor sought a court determination that a mortgage loan was unsecured because there was...more

Recent Unanimous Supreme Court Decision Holds That Underwater Mortgages in a Chapter 7 Cannot be “Stripped off"

The Issue and Background - Debtors David Caulkett and Edelmiro Toledo-Cardona (“Debtors”) each filed for Chapter 7 bankruptcy relief with “underwater” junior mortgages held by Bank of America, N.A. (“Bank”). In other...more

Raising a Drawbridge Objection: Eligibility in Chapter 15 Cross-Border Insolvency Cases

Insolvency like international law can lend itself to aggressive protectionism as parties or countries try to preserve their own interests, like medieval lords surrounded their castles with moats and towering walls to fend off...more

Becoming a Creditor in a Bankruptcy Case Triggers a Duty to Preserve Documents

A litigator in bankruptcy court is challenged with mastery of a trial lawyer’s skills as well as the developing substantive law, jurisdictional and otherwise, governed by the Bankruptcy Code. Who hasn’t heard of Stern v....more

The Road Ahead for TransVantage Solutions, Inc.

The Chapter 7 Trustee appointed in the TransVantage Solutions, Inc. bankruptcy case ground the gears of the nation’s trucking industry this past April when he filed over 500 adversary complaints against common carriers,...more

Seventh Circuit Says Violations of Wisconsin’s Theft-by-Contractor Statute Are Not Dischargeable in Bankruptcy

The Bankruptcy Code prevents an individual debtor from discharging certain debts, including, upon request of the creditor, debts for “fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). The...more

Cramdown Hurdles Round 3: Try, Try Again

In re Ramz Real Estate Co., LLC, 510 B.R. 712 (Bankr. S.D.N.Y. 2013) – An undersecured mortgagee objected to a debtor’s proposed plan of reorganization on several grounds, including that (1) the plan was not approved by...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

The Monetary Risks of Filing an Involuntary Bankruptcy Petition

The Bankruptcy Code offers several advantages for the creditors of financially distressed individuals and corporations, including federal court supervision of a possibly untrustworthy debtor and mitigation of the risk of...more

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