News & Analysis as of

New York’s "Separate Entity Rule" Reaffirmed by the New York Court of Appeals

On October 23, 2014, in Motorola Credit Corp. v. Standard Chartered Bank. No. 162, the New York Court of Appeals reaffirmed the continued vitality of New York’s “separate entity rule.” Under that rule, a judgment creditor...more

Blog: When Are Goods “Received” By The Debtor? Establishing International Suppliers’ Entitlement To 503(B)(9) Administrative...

Section 503(b)(9) of the Bankruptcy Code provides creditors with an administrative expense priority claim for value of goods that were received by the debtor in the ordinary course within the 20 days prior to the bankruptcy...more

Mind the Statutory Gap (aka A Jurisdictional Mess)

As we all know, on June 9 of this year, the Supreme Court issued its long awaited decision in Executive Benefits Ins. Agency vs. Arkison, 134 S. Ct. 2165, 189 L. Ed. 2d 83 (2014), which we had hoped would resolve the open...more

In re Brown: Replacement Value Applies Even When Debtor Surrenders Property

The recent Eleventh Circuit case of In re Brown, 746 F.3d 1236 (2014) held that 11 U.S.C. § 506(a)(2)'s replacement value standard applies even when a Chapter 7 or 13 debtor surrenders collateral under 11 U.S.C. §...more

In re Fisker: Eroding RadLAX on Credit Bidding

On January 17, 2014, Judge Kevin Gross from the United States District Court for the District of Delaware issued a controversial decision substantially limiting a lender’s credit bid in In re Fisker Automotive Holdings, Inc.,...more

Corporate Recovery and Insolvency in Bermuda

1 Issues Arising When a Company is in Financial Difficulties - 1.1 How does a creditor take security over assets in Bermuda? Bermuda is a self-governing British Overseas Territory. The systems of law...more

Why Creditors Can’t Afford To Ignore Objections To Bankruptcy Claims

File And Forget? When a customer or other party with which you do business files bankruptcy, it’s important to file a proof of claim on time by the deadline (also known as a “bar date”) set in the case. Once you do, however,...more

Eleventh Circuit Further Muddies the Waters for Collectors

The Telephone Consumer Protection Act’s safe harbor for calls made with the prior express consent of the called party is destroyed the moment the debtor says, “Stop calling me!” So too, a collector can be liable for...more

Accrual and Payment of Interest on Creditors’ Claims in Insolvency: The Plenary Session of the Russian Supreme Commercial Court...

This issue considers the most important provisions of the resolution adopted at the Plenary Session of the Supreme Commercial Court of the Russian Federation (the “SCC”) No. 88, dated 6 December 2013, “On Accrual and Payment...more

Important changes to French Insolvency Legislation

Article 2 of Law no. 2014-1 of 2 January 2014 enabled the French government to simplify and secure the legislation relating to companies in difficulty. Following consultation with practitioners, the French government...more

A creditor is suing me! What should I do?

We'll take a look at what might happen if you do nothing when a creditor sues you, if you "answer" the lawsuit in a timely fashion, and if you file bankruptcy....more

Creditors Beware: Do the Proof of Claim Right or You Are Out

Recent developments in the bankruptcy arena have placed a greater burden on claimants. Creditors are now required to make additional disclosures in their proof of claim forms, and courts are under no obligation to recognize...more

Public Works Projects and Municipal Bankruptcies

The good news is that public works construction projects for municipalities are projected to remain a major sector of construction activity for the foreseeable future. The not-so-good news is that municipal bankruptcy filings...more

CFPB Extends Time To Respond To Debt Collection Proposal

On January 13, the CFPB issued a notice extending the comment period for its advance notice of proposed rulemaking related to debt collection practices. The notice states that...more

Equitable Mootness: Two Recent Third Circuit Decisions

Equitable mootness is a judge-made remedy that is misnamed. Judges apply it to seek an equitable result, but mootness in the constitutional sense is absent. Article III, section 2 of the U.S. Constitution bars federal...more

Accidents Don’t Cut It – Ensuring You Don’t “Unintentionally” Violate the Automatic Stay

A debtor files for bankruptcy protection, and his or her creditors are sent notice of the filing. Despite having received the notice, due to a breakdown in internal procedures one of the creditors, a bank, accidentally takes...more

Community Banking Excellence - Fourth Quarter 2013

In This Issue: - Interview with a Community Banking Professional - Holiday Wishes - Accidents Don't Cut It - Ensuring You Don't "Unintentionally" Violate the Automatic Stay - Dodd-Frank Essentials: Executive...more

Spanish Insolvency Act Amendment Offers Comfort to Parties in Sareb Transactions

On November 30, 2013, the Spanish legislator approved a recent amendment to Spanish insolvency law, introduced in March 2013, to clarify that a claim transferred to Spanish “bad bank” Sareb, and subsequently sold by Sareb to...more

Set Off Rights: Recovering Goods or Proceeds from a Bankrupt Client

When a client goes bankrupt, an unpaid supplier is often left with few remedies. Generally speaking, the unpaid supplier’s recovery is limited to their proportional share of what is left of the proceeds from the bankrupt’s...more

Is this your "Window of Opportunity" for bankruptcy?

Bankruptcy as an opportunity? And a "window" for it? What's that about? It's about the fact that our Congress gave all of us the opportunity for a Fresh Start from burdensome debts. And yes, for many people there is a...more

The Absolute Priority Rule in Individual Chapter 11 Bankruptcy Cases lives on … for now

The principle behind the absolute priority rule is simple: unsecured creditors should be paid before the debtor is entitled to retain property of the bankruptcy estate. In a corporate setting the absolute priority rule...more

Second Circuit Rules on False Name Exception Under FDCPA

In a split decision, the United States Court of Appeals for the Second Circuit ruled that a creditor can be held liable for sending letters using a law firm’s letterhead when plaintiffs alleged that the substance of the...more

KB Toys: Don’t Play with Clouded Claims

In a recent decision by the influential Third Circuit Court of Appeals, In re KB Toys Inc., 2013 U.S. App. LEXIS 23083 at *17 (3d Cir. Nov. 15, 2013), the Court decided that “the cloud on the claim” stemming from a...more

Mortgage Debt Lesson: Don't Pursue Collection Of A Discharged Mortgage

Creditors should double check the bankruptcy status of a debtor/borrower before pursuing collection. As a pending case illustrates, pursuing collection of an initially reaffirmed, but later discharged mortgage could be a...more

Second Circuit Clarifies FDCPA’s False Name Exception For Creditors

On November 13, the U.S. Court of Appeals for the Second Circuit held that where a creditor hires a third party to send collection letters but does not rely on the third party for any other bona fide efforts to collect the...more

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