News & Analysis as of

Chapter 7

Samson Resources Preference Actions Filed In Delaware

by Fox Rothschild LLP on

Starting on September 12, 2017, Peter Kravitz, as Settlement Trustee of the Samson Settlement Trust, filed approximately 293 complaints seeking the avoidance and recovery of allegedly preferential and/or fraudulent transfers...more

No Surrender: Massachusetts Appeals Court Preserves Foreclosure Challenges for Bankruptcy Petitioner

by Hinshaw & Culbertson LLP on

Like Bruce Springsteen, a Massachusetts bankruptcy debtor said "no surrender" when it came to his home. In EverBank v. Chacon, a panel of the Massachusetts Appeals Court issued a non-binding decision that a debtor's...more

Coming Soon: Bankruptcy Proofs of Claim Must be Filed Sooner and by More Claimants

by Snell & Wilmer on

Bankruptcy Rule 3002 is getting an update, which goes into effect on December 1, 2017. Creditors in a Chapter 7 (liquidation), Chapter 12 (family farmer), and Chapter 13 (individual reorganization) bankruptcy need to take...more

Dear Mortgage Lender – Where Debtors Surrender, Act Quickly

by Fox Rothschild LLP on

The Eleventh Circuit’s ruling in the Failla case was triumph for mortgage lenders when it affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not...more

Beware of the ABL Trap: The Challenges of Retail Chapter 11 Debtors and Asset Based Lending

An asset based loan (“ABL”) is often the financing of choice for retail borrowers – and for good reason. In its simplest form, an ABL is a credit facility, usually in the form of a revolving line of credit, the availability...more

Tenants Beware – The Ninth Circuit Has Ruled That The Bankruptcy Code Can Be Used By A Landlord To Strip A Tenant’s Right To...

by Ervin Cohen & Jessup LLP on

Just last month, the Ninth Circuit issued a ruling in the case of Matter of Spanish Peak Holding II, LLC, that is potentially devastating to a tenant that leases property from a landlord that files for bankruptcy relief....more

Third Circuit Applies More Flexible Standard for WARN Exemption

The Third Circuit, in In re AE Liquidation, Inc., Case No. 16-2203 (3d Cir. Aug 04, 2017) held that the Debtors were not liable under the WARN Act for failing to warn employees of furloughs and layoffs until those furloughs...more

Eleventh Circuit Moves Toward Bright Line Rule That Debtors Cannot Retain Real Property Post- Discharge Without Reaffirming the...

by Burr & Forman on

Last year, Burr & Forman lawyers won a decisive victory in the Eleventh Circuit, in the case of In re Failla, 838 F.3d 1170 (11th Cir. 2016). In Failla, the Eleventh Circuit held that a debtor who files a statement of...more

Ninth Circuit Rules That Hypothetical Preference Actions May Be Considered in Applying the Greater Amount Test

by Jones Day on

In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), a divided panel of the U.S. Court of Appeals for the Ninth Circuit recently addressed as a matter of apparent first impression...more

Ninth Circuit Joins “Minority” of Courts That Allow Property to be Sold in Bankruptcy Free and Clear of Leaseholds

The Ninth Circuit recently held, in Pinnacle Rest. at Big Sky, LLC v. CH SP Acquisitions, LLC (In re Spanish Peaks Holdings II, LLC), No. 15-35572, 2017 U.S. App. LEXIS 12526, 2017 WL 2979660 (9th Cir. July 13, 2017), that a...more

Upcoming Amendments to Bankruptcy Rule 3002 to Impact Bankruptcy Filing Practices for Mortgagees

by K&L Gates LLP on

Effective December 1, 2017, certain amendments to the Federal Rules of Bankruptcy Procedure (“the Bankruptcy Rules”) recently adopted by the Supreme Court will impact the allowance of secured claims in bankruptcy. Below, we...more

Preferences Actions Filed In Univita Holdings LLC Bankruptcy Case

by Fox Rothschild LLP on

On July 19-21, 2017, David W. Carickhoff, in his capacity as Chapter 7 Trustee of the Estates of Univita Holdings, et al., filed approximately 46 complaints seeking the avoidance and recovery of allegedly preferential and/or...more

Derivative Complaints By Creditors Against Chapter 7 Trustees – They Don’t Tend To Go Very Far

by Fox Rothschild LLP on

In a decision signed July 17, 2017 in the Our Alchemy, LLC bankruptcy (case 16-11596), Judge Gross of the Delaware Bankruptcy Court granted a trustee’s partial motion to dismiss a complaint, holding that a creditor cannot...more

US Supreme Court confirms priority rules apply to a structured dismissal of a chapter 11 bankruptcy case

by DLA Piper on

In its recent decision Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017), the United States Supreme Court held that a bankruptcy court may not approve a structured dismissal of a chapter 11 case that provides for...more

Exculpatory Provisions Under Delaware Law: Say What You Mean And Mean What You Say

Exculpation provisions in operating agreements must be carefully crafted in order to protect members, managers, directors and officers for breaches of fiduciary duties...more

Commercial Tenant Debtors in Chapter 11: Fundamentals of Landlord Creditor Protection in Bankruptcy

by BakerHostetler on

Commercial landlords have unique protections in bankruptcy, but can lose these rights if they do not assert them. When a commercial tenant files bankruptcy under Chapter 11, the landlord must carefully monitor filings and...more

Countering counterparty insolvency

by Hogan Lovells on

These days, the threat of counterparty insolvency looms over the energy sector: whether it is a natural disaster or precipitous decline in the price of oil, perhaps no industry is more susceptible to the financial decline and...more

Good Faith Affirmative Defenses Waiving Attorney-Client Privilege and Work-Product Protection Under the “At Issue” Doctrine

On May 8, 2017, the U.S. Bankruptcy Court for the Middle District of Florida entered an order compelling production of attorney-client communications between Regions Bank and its counsel, finding that Regions had put those...more

Sixth Circuit Rejects Per Se Rule Automatically Mooting Sale Appeals in the Absence of a Stay

by Jones Day on

Debtors beware: The Sixth Circuit Court of Appeals has recently expanded the ability of parties to appeal a bankruptcy court's approval of a sale of assets notwithstanding the statutory mootness rule set forth in section...more

Substantive Consolidation of Non-Debtors-Standing and Notice Issues

by Dechert LLP on

U.S. courts generally agree that the substantive consolidation should be applied sparingly, and even more so when substantive consolidation of debtors with non-debtors is sought. While many opinions address the grounds for...more

PennySaver – Preference Actions Filed

by Fox Rothschild LLP on

On May 23, 2017, Don A. Beskrone, the chapter 7 trustee for the estate of PennySaver USA Publishing, LLC filed preference actions against 46 defendants. PennySaver was an iconic company that specialized in the production,...more

U.S. Supreme Court Holds That Structured Dismissals Cannot Deviate From the Bankruptcy Code's Priority Scheme

by Jones Day on

In bankruptcy cases under chapter 11, debtors sometimes opt for a "structured dismissal" when a consensual plan of reorganization or liquidation cannot be reached or conversion to chapter 7 would be too costly. In Czyzewski...more

Kiwi Defense Doesn't Get Off the Ground in Preference Litigation Involving Related, but Severable, Contracts

by Jones Day on

Among the required elements of a claim to avoid a preferential transfer under section 547(b) of the Bankruptcy Code is that, if the creditor-transferee were permitted to retain a pre-bankruptcy payment, it would end up being...more

Liability Coverage Policies: Property of the Estate to Which the Automatic Stay Applies

by Best Best & Krieger LLP on

When a chapter 7, 11, 12 or 13 case is filed, two key items spring into life. The first is a new entity called the bankruptcy estate which is comprised of all of the debtor’s non-exempt legal or equitable interests in...more

District Court Takes on the Intersection of Bankruptcy and the FDCPA

A New York District Court recently tackled the intersection between bankruptcy and pre-petition FDCPA claims and the application of judicial estoppel to undisclosed claims. In December 2013, Jeziorowski filed a complaint...more

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