News & Analysis as of

Fraudulent Transfers

Foreign Representative Had "Independent" Standing to Prosecute State Law Avoidance Claims in Chapter 15

by Jones Day on

If a foreign debtor is eligible to file for bankruptcy protection in the U.S., the debtor's foreign representative (e.g., a liquidator or administrator) may, under certain circumstances, have the power to avoid and recover...more

Real Property & Title Insurance Update: Week Ending May 19 & 26, 2017

by Carlton Fields on

Real Property Update - Foreclosure/Standing/Lost Note: if plaintiff did not have right to enforce note when lost, plaintiff should present evidence of assignment from payee to plaintiff or affidavit of ownership - ...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

Debt Dialogue: May 2017 - Supreme Court to Hear Circuit Split Over Bankruptcy Safe Harbor Provision

The Supreme Court has granted certiorari in Merit Management Group L.P. v. FTI Consulting Inc. to resolve a circuit split over the interpretation of Section 546(e) of the Bankruptcy Code, the “safe harbor” provision that...more

Supreme Court to Resolve Circuit Split on Scope of 546(e)’s Safe Harbor Provision

Earlier this month, the Supreme Court announced that it will review the scope of Bankruptcy Code section 546(e)’s safe harbor provision. Section 546(e) protects from avoidance those transfers that are made “by or to (or for...more

SWIFT Shores Up Network Security With Real Time Cybersecurity Tools

In an effort to combat an increasing number of fraudulent transfers carried out using its network, SWIFT, the international bank transfer network, announced this month that it is adding new tools and controls designed to...more

Second Circuit Finds District Court Erred In Decision On Enforcement Of International Arbitration Award

by Carlton Fields on

The factual and procedural background of this case can be found here. In sum, beginning in the 1990s, the appellants, a group of Brazilian companies (collectively, “CBF”) entered into a series of contracts with Primetrade AG,...more

Utah Enacts Uniform Voidable Transactions Act

by Snell & Wilmer on

On March 21, 2017, Utah joined about a dozen other states in enacting the Uniform Voidable Transactions Act (the Act). This statute, which is found at §25-6-101 et seq., amends Utah’s Uniform Fraudulent Transfer Act (§25-6-1...more

Fore Warned: Fifth Circuit Sticks to its Guns

by Ervin Cohen & Jessup LLP on

A prior prior Ask the Receiver® discussed the Fifth Circuit case Janvey v. The Golf Channel, Inc., 780 F. 3d 641 (5th Cir. 2015) (“Golf Channel I”). There the court found The Golf Channel liable to return $6,000,000 paid to...more

The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities

Alien Tort Statute (ATS)/Political Question Doctrine/Foreign Sovereign Immunity Act (FSIA)/ Act of State Doctrine - District Court Dismisses ATS Claim Where Alleged Conduct in US was not Directly Linked to Injuries...more

No Trustee Left Behind – Another Bankruptcy Court Requires Colleges to Return Tuition to the Bankruptcy Estate

by Bryan Cave on

Another bankruptcy trustee catches another hapless college unaware. In Roach v. Skidmore College (In re Dunston), Bankr. S.D. Ga. (Jan 31, 2017), a trustee appears to win the next battle of “bankruptcy estates v. child’s...more

The Devil's Dictionary of Bankruptcy Terms: Strong Arm Powers

by Polsinelli on

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

Admission of Fraudulent Intent Is Not Conclusive Evidence of Fraudulent Intent (Sometimes)

by Robins Kaplan LLP on

In a previous blog post, we discussed a situation in which actual fraud could be found where the transferor had the noblest of intentions and had demonstrated no intent to defraud creditors. This week, we address a situation...more

The Problem of Lender "Inquiry Notice" Status

by Ruder Ware on

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

Post-Petition Transfers: Sixth Circuit Opines on 11 U.S.C. § 542 versus § 549

by Butler Snow LLP on

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

Steven Lane v. State of Arizona, et al

Jones, Skelton & Hochuli Governmental and Appellate Group members John DiCaro and Justin Ackerman recently obtained summary judgment on a premises liability and fraudulent transfer lawsuit filed against Gavilan Peak, LLC. On...more

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

by Locke Lord LLP on

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

Florida Banks: Beware of Eleventh Circuit Decision Implications

by Foley & Lardner LLP on

Banks beware: At the very least in Florida, you may be liable for negligence and “aiding and abetting fraud” to non-customers for trust funds deposited by a bank customer that were obtained by the customer through fraud,...more

“Ponzi Scheme” Recital Not Enough

by Locke Lord LLP on

Disgruntled investors suing oil and gas companies for fraud must allege facts to support a Ponzi scheme in order to obtain the “Ponzi scheme presumption.” This “Ponzi scheme presumption,” if adequately pleaded in the first...more

Lenders to SPEs: Be Aware, You May Not Have Standing to Appeal a Substantive Consolidation Order

by Dechert LLP on

A substantive non-consolidation opinion is a common feature of structured finance transactions in the U.S. Most, if not all, opine as to what a bankruptcy court would do, but express no opinion on the appellate process. We...more

Commercial Restructuring & Bankruptcy Alert - October 2016

by Reed Smith on

Welcome to the October 2016 issue of the CR&B Alert, the newsletter produced by Reed Smith's Commercial Restructuring & Bankruptcy Group. Excerpt from newsletter: DELAWARE AND NEW YORK AT ODDS OVER RECLAMATION...more

Court Finds that Parents Convicted of Ponzi Scheme Received Value from Tuition Payments

by PretiFlaherty on

Do parents receive something of value when they pay for their child to attend college? The Massachusetts Bankruptcy Court (Hoffman, J.) recently considered this exact question in DeGiamcomo v. Sacred Heart University, Inc.,...more

Bankruptcy Avoidance Litigation Part II – Do I Really Have To Give That Payment Back?

In the first installment of this article, we discussed the prevalence of preference litigation and some of the commonly-available defenses to business vendors to limit or even eliminate liability to the bankruptcy estate....more

Insurance Coverage – Insurance Fraud Prevention Act

by Low, Ball & Lynch on

The People ex rel. Allstate Insurance Company, et al. v. Daniel H. Dahan, et al. - Court of Appeal, Second District (September 15, 2016) - Under Section 1871.7 of the California Insurance Frauds Prevention Act...more

Recent Developments in Acquisition Finance

by Dechert LLP on

A recent Delaware bankruptcy court decision may potentially place at risk an equity sponsor’s ability to retain proceeds from the sale of a portfolio company whose performance later deteriorates, where the selling sponsor...more

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