News & Analysis as of

Junior Lenders

Cadwalader, Wickersham & Taft LLP

How to Prepare for a Real Estate Enforcement in Europe, Part 3 – Implementation (or Getting the Deal Done!)

Having covered how to prepare for an enforcement in Part 1 and stressed the importance of valuation evidence in enforcements in Part 2, the focus of our mini-series now turns to implementing the enforcement....more

Goodwin

Intercreditor Agreements and the Bankruptcy Code

Goodwin on

There is no set of fixed rules when negotiating intercreditor arrangements as every deal is fact-specific, generally subject to significant negotiation and ultimately dependent on competing business rationales and negotiating...more

Quarles & Brady LLP

Intercreditor Agreements in Bankruptcy: How Intercreditor Agreements shape the proceedings and outcomes for secured creditors

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Junior and Senior Lenders work hard to negotiate Intercreditor Agreements. What difference does it make? Isn’t it enough to simply agree that the Junior Lender is in a junior position? This article follows a borrower,...more

Quarles & Brady LLP

Bank On It: Finance News You Can Count On - March 2022

Quarles & Brady LLP on

Junior and Senior Lenders work hard to negotiate Intercreditor Agreements. What difference does it make? Isn’t it enough to simply agree that the Junior Lender is in a junior position? This article follows a borrower,...more

Morrison & Foerster LLP

The Latest on Insolvent Schemes and Restructuring Plans

This update summarises the latest jurisprudence on insolvent schemes of arrangement (schemes) and restructuring plans (RPs), and provides an overview of the key themes that are emerging in this area...more

Morgan Lewis

Out-of-the-Money Junior Creditors Cannot Participate in the Bankruptcy Process

Morgan Lewis on

Subordination agreements are generally enforced in accordance with applicable non-bankruptcy law in bankruptcy cases. The decision in In re Fencepost Productions, Inc., No. 19-41542, 2021 WL 1259691 (Bankr. D. Kan. Mar. 31,...more

Patton Sullivan Brodehl LLP

Cotenant Owner vs. Junior Creditor — Battle for Sale Proceeds from Senior Creditor Foreclosure

After a foreclosure sale by a senior creditor, California’s Civil Code section 2924k governs how the sale proceeds are applied in the following order of priority...more

Perkins Coie

Eight Circuit BAP Determines Junior Lienholders Receive Preference Protection

Perkins Coie on

A junior lienholder that receives a payment to release its “out of the money” lien may not have to repay it if their borrower files for bankruptcy shortly thereafter as decided recently in Lauter v. Wells Fargo Bank (In re...more

Skadden, Arps, Slate, Meagher & Flom LLP

A Look at 2019 Court Decisions That May Shape Restructuring Issues in the Year Ahead

A series of decisions over the past year — on issues such as make-whole premiums, intercreditor agreements, backstops for rights offerings and nonconsensual third-party releases — will likely have a significant impact in 2020...more

Dechert LLP

Second Circuit Finds that Section 47(b) Provides for Private Right of Action, Raising New Implications and Considerations for...

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The U.S. Court of Appeals for the Second Circuit, in disagreeing with the Courts of Appeals for the Third and Ninth Circuits, ruled on August 5, 2019 in Oxford University Bank v. Lansuppe Feeder, Inc. that a private right of...more

Dechert LLP

Newsflash: Subordination Agreement prevents Rule 2004 examination

Dechert LLP on

Bankruptcy Rule 2004 allows the examination of any entity with respect to various topics, including conduct and financial condition of the debtor and any matter that may affect the administration of the estate. Does a...more

Jones Day

Subordination Agreement Barred Bankruptcy Discovery Concerning Senior Debt

Jones Day on

In In re Argon Credit, LLC, 2019 WL 169315 (Bankr. N.D. Ill. Jan. 10, 2019), the U.S. Bankruptcy Court for the Northern District of Illinois ruled that, in accordance with section 510(a) of the Bankruptcy Code, a standby...more

Amundsen Davis LLC

So You’re Saying There’s A Chance: Surpluses In Foreclosure

Amundsen Davis LLC on

Commercial lenders often take junior or second mortgages on real estate as additional collateral for loans. Unfortunately, because those junior liens are subordinate to the senior liens, they are subject to being eliminated...more

Foley & Lardner LLP

Can an Out-of-the-Money Junior Creditor Share in a Free-and-Clear Bankruptcy Sale?

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On July 9, 2018, the U.S. Court of Appeals for the Seventh Circuit issued an important opinion raising the possibility that out-of-the-money junior creditors might be entitled to share in the proceeds of a free-and-clear...more

Perkins Coie

Double Trouble—Is Black Sky Capital Blue Skies for Lenders?

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An annoying question for lenders is whether or not a lender can enforce two loans to the same borrower and secured by the same property. The nagging issue is usually raised when a lender makes (1) a first loan and an...more

Kramer Levin Naftalis & Frankel LLP

Debt Dialogue: January 2017

This month’s issue of Debt Dialogue address handover of records to a substitute collateral manager (in the Tilton litigation), the EU bail-in rules, the interplay of Section 3(c)(7) of the Investment Company Act and rights of...more

Troutman Pepper

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

Troutman Pepper on

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

Seyfarth Shaw LLP

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

Seyfarth Shaw LLP on

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

Orrick, Herrington & Sutcliffe LLP

Distressed Downloads - June 2015

A Battle in the Making in the Oil and Gas Sector: Second Lien vs. High Yield Debt - In the oil and gas industry, there is a storm brewing between holders of second lien debt and unsecured high yield bonds. These...more

Baker Donelson

The Supremes Tell the Eleventh Circuit: No Lien Stripping

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On June 1, 2015, the United States Supreme Court issued a unanimous ruling resolving a split amongst circuit courts in which the 11th circuit was the singular minority, addressing the permissibility of “lien-stripping” in...more

Partridge Snow & Hahn LLP

United States Supreme Court Begrudgingly Extends Dewsnup Decision

United States Supreme Court Begrudgingly Extends Dewsnup Decision in Holding That Chapter 7 Debtors May Not Strip Off Wholly Unsecured Junior Mortgages in Bankruptcy - On June 1, 2015, the United States Supreme Court, in...more

Faegre Drinker Biddle & Reath LLP

Supreme Court Decides Bank of America v. Caulkett and Bank of America v. Toledo-Cardona

On June 1, 2015, the United States Supreme Court decided Bank of America v. Caulkett, No. 13-1421, together with Bank of America v. Toledo-Cardona, No. 14-163, holding that a debtor in a Chapter 7 bankruptcy proceeding may...more

Snell & Wilmer

Real Estate Lien Priority Case - Effect of Subordination Agreement on Junior Liens

Snell & Wilmer on

In a recent decision, the Utah Supreme Court addressed a matter of first impression in Utah, namely, whether a subordination agreement between two senior lenders, which reversed the priority of their respective liens against...more

Carlton Fields

Stripping of Unsecured Second Mortgages in Chapter 7 Bankruptcies in the Crosshairs

Carlton Fields on

Since its 1989 opinion in Folendore v. Small Business Admin., the Eleventh Circuit Court of Appeals has allowed debtors to completely strip off and void wholly unsecured junior liens in Chapter 7 bankruptcies under Section...more

Orrick, Herrington & Sutcliffe LLP

Should Underwater Junior Liens Survive Bankruptcy?

On March 24th, the Supreme Court heard oral argument on the consolidated appeals of two decisions from the Eleventh Circuit Court of Appeals, Bank of America v. Caulkett and Bank of America v. Toledo-Cardona. The appeals...more

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