Finance & Banking Bankruptcy

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Second Circuit Reverses Marblegate Decision

Trust Indenture Act Section 316(b) Limited to Actual Amendments to An Indenture’s Core Terms - Seyfarth Synopsis: On January 17, 2017, in a 2-1 decision in Marblegate Asset Management, LLC v. Education Management Finance...more

Language Matters: Third Circuit Finds Make-Whole Provision Enforceable After Bankruptcy Filing

On November 17, 2016, the US Court of Appeals for the Third Circuit in Delaware Trust Co. v. Energy Future Intermediate Holding Co. LLC, No. 16-1351 (3d Cir. Nov. 17, 2016) clarified the often-muddy interplay between...more

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

Construction Group News: Your corporate real estate is held by a separate LLC, so it's protected, right? Maybe Not...

Your business real estate may not be safe from a separate, but related, company’s bankruptcy. In a shot across the bow to the Massachusetts construction community, a Massachusetts bankruptcy court has determined that in...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

Substantive Consolidation - Recent Decisions Examine a Bankruptcy Court’s Ability to Augment a Debtor’s Estate

Two recent opinions concerning the law of substantive consolidation should be of interest to business owners and commercial real estate market participants. The doctrine of substantive consolidation allows a bankruptcy court,...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

Second Circuit Rules on TIA Section 316(b); Overturns Marblegate (and Caesars)

Yesterday, in the latest chapter in the ongoing debate over Section 316(b) of the Trust Indenture Act, the Second Circuit reversed the district court’s decision in Marblegate, concluding that the TIA does not prohibit...more

Ukraine: Unified registry of debtors officially launched (Ukrainian)

In the beginning of January 2017, the Unified Registry of Debtors (hereinafter, “the Registry”) has been officially launched. ?he Registry should contain the information about debtors under enforcement proceedings, which were...more

Ukraine: Unified registry of debtors officially launched

In the beginning of January 2017, the Unified Registry of Debtors (hereinafter, “the Registry”) has been officially launched. ?he Registry should contain the information about debtors under enforcement proceedings, which were...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

Ninth Circuit Holds Debtor Must Pay Default Interest Rate in Order to Cure Under Bankruptcy Plan

In a win for secured creditors, the Ninth Circuit Court of Appeals recently held that a debtor who sought to cure a pre-petition default of its loan through its Chapter 11 plan must pay the default rate of interest set forth...more

The Australian federal government to review security of payment legislation

The Australian federal Minister for Employment, the Hon. Michaelia Cash, has announced a review into security of payment legislation in the building and construction industry. Mr John Murray AM has been appointed to conduct...more

Southern District Clarifies the Applicability of Section 316(b) of the Trust Indenture Act to Exchange Offers

Last year, plaintiffs successfully used an obscure provision of the 1939 Trust Indenture Act (the TIA) to challenge restructurings by Education Management, LLC (Marblegate) and Caesars Entertainment Operating Co. (Caesars)...more

Recent Cases Restrict Issuers' Ability to Avoid Paying Premiums

Indentures governing high yield and investment grade notes typically provide for a make-whole or other premium to be paid if the issuer redeems the underlying notes prior to maturity. The premiums are intended to compensate...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

The Devil's Dictionary of Bankruptcy Terms: Zone of Insolvency

The "Devil's Dictionary" is a quick-reference guide for commercial lenders and other restructuring professionals. In this series, we highlight many of the buzz words found in the Dictionary and used in today's bankruptcy...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

Municipal Bond Offering Disclosures after a Chapter 9 Filing—A Few Reflections on Orange County and the City of Detroit

Although not intended to be classics of literature, we have found tales of two municipalities and their Chapter 9 bankruptcies. One was warm and prosperous and on the West Coast, whose housewives we have followed in the age...more

A Debtor’s Allegedly False Financial Statement Doesn’t, At All, Excuse a Lack of Lender Diligence

A decision rendered during the sometimes peaceful interlude between Christmas and New Year’s is worth reading, and heeding. Hurston v. Anzo (In re Hurston), Adv. Proc. No. 15-2026 (Bankr. N.D. Ga. Dec. 27, 2016) is a helpful...more

Eastern District of Louisiana Dismisses Officer Compensation Fraudulent Transfer Claims in Tow v. Bulmahn

The U.S. District Court for the Eastern District of Louisiana dismissed a Chapter 7 bankruptcy trustee’s claims against officers and inside directors of ATP Oil & Gas Corporation in Tow v. Bulmahn on Wednesday. In Tow v....more

Why NOT to reaffirm a mortgage in bankruptcy!

More than one past client has called me to complain that their mortgage holder wasn't reporting their house mortgage payments to credit reporting agencies, and would not unless they reaffirmed their mortgage loan. What's that...more

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