Secured Creditors

News & Analysis as of

Just When Secured Creditors Thought it Was Safe to Credit Bid Again . . . .

The ability of a secured creditor to credit bid at a bankruptcy sale was recently called into question (again) in a January 17, 2014 decision by Bankruptcy Judge Kevin Gross in the In re Fisker Automotive Holdings, Inc....more

Recent Decision Caps Secured Creditor’s Credit Bid in §363 Sale to Purchase Price of Acquired Debt

It is well-settled that secured creditors are ordinarily entitled to credit bid their allowed secured claim in a sale pursuant to § 363 of the Bankruptcy Code (the “Code”). In Radlax Gateway Hotel, LLC v. Amalgamated Bank,...more

Fisker bankruptcy update: Should secured creditors really be concerned?

The opinion by the Delaware bankruptcy court in In re Fisker Auto. Holdings, Inc., raised alarm bells for secured creditors throughout the country. Many worry that it will diminish the valuable right of secured creditors 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

For Secured Creditors, Too Late May Be Too Little

In a recent advisory, we reported on an apparently favorable decision to secured creditors from the Fifth Circuit Court of Appeals that held that a secured creditor’s claim survives bankruptcy where the secured creditor...more

Capital Infusion: Case Spotlight: In re SemCrude, L.P.

Sudden interruptions in oil supplies caused by the 1973 Arab oil embargo, the Iranian revolution of 1979 and the outbreak of the war between Iran and Iraq in 1980 led to the energy crises of the 1970’s and 1980’s, forcing...more

What Must a Secured Creditor Do to Get Its Due?

Last month, the Fifth Circuit Court of Appeals ruled that a secured creditor’s claim survives bankruptcy where the secured creditor received notice of the case and was found to have not actively participated in it. Acceptance...more

Number One Priority – Understanding Changes that Impact Securing and Maintaining Priority as a Secured Creditor (Recent Amendments...

Florida joined with a majority of states in adopting the 2010 changes to Article 9 of the Uniform Commercial Code (Ch. 679, Fla. Stat.), which governs security interests in personal property. Consistent with the targeted...more

The Ninth Circuit Recharacterizes Recharacterization Jurisprudence

The Ninth Circuit in In re Fitness Holdings Int’l, 2013 U.S. App. LEXIS 8729 (9th Cir. April 30, 2013) recently reversed precedent and established that bankruptcy courts in the Ninth Circuit have the power to determine...more

Georgia Supreme Court Decision Should Reduce the Number of Wrongful Foreclosure Cases

Last summer, the Georgia Court of Appeals ruled that a foreclosure advertisement must identify the secured creditor on whose behalf a foreclosure sale is being performed. See Reese v. Provident Funding Assocs., LLP, 317 Ga....more

Changes To The UCC Effective July 1: Are You Prepared?

Effective July 1, multiple amendments to the Uniform Commercial Code (UCC) became effective in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and 39 other states. ...more

Two Recent Circuit Court Decisions on Cram Down

Two recent decisions by United States Circuit Courts of Appeal separately address the rights of secured creditors, unsecured creditors and equity holders under cram down plans of reorganization. In Wells Fargo Bank National...more

Burr Alert: The Basics Of Cramdown Interest Rates In Chapter 11

A debtor in a chapter 11 bankruptcy may treat a secured claim in one of two ways in its plan of reorganization: (1) the debtor may propose to cure any existing default, compensate the creditor for any loss sustained by the...more

The Cooperative Bank’s Restructuring – will this be a case of lessons learned?

The UK’s bank regulatory and insolvency law structures were unprepared for the global financial crisis. As a result, the UK government’s response to intense bank stress in the immediate aftermath of the crunch led to a number...more

The $382,901 Check Really is in the Mail

We recently delivered a $382,901 check to a client in payment of a Bankruptcy Section 503(b)(9) claim, known as a “20-day administrative” claim. The claim arose from the client’s pre-petition sale of goods to its customer....more

Relevant Factors When Considering an Application to Appoint a Receiver

In Kasten Energy Inc. v. Shamrock Oil & Gas Ltd., 2013 ABQB 63, the Alberta Court of Queen’s Bench considered the application of Kasten Energy Inc. (“Kasten”) to appoint a receiver over all of the assets and undertakings of...more

Legal Alert: Holder of Deed Need Not Be Holder of Note to Foreclose, Georgia Supreme Court Rules

The Georgia Supreme Court held this week that the holder of a security deed need not also hold the underlying note to exercise the power of sale in accordance with the terms of the security deed. You v. JP Morgan Chase Bank,...more

Surcharges in Bankruptcy - A Risk You Can Plan For?

The Bankruptcy Code is a balancing act with each section promoting one or more of three competing principles: the protection of a secured creditor's property rights, equitable and equal distribution to unsecured creditors or...more

Wilbur Ross Says Results-Based System Can Curb Ch. 11 Fees

Law360, New York (December 03, 2012, 7:05 PM ET) -- An American Bankruptcy Institute commission designed to take stock of the state of Chapter 11 anticipates that any changes to the Bankruptcy Code would likely focus on the...more

Foreclosure Law In The Wake Of Recent Decisions On Residential Mortgage Loans: The Situation In Georgia

Originally Publish in Pratt's Journal Of Bankruptcy Law, February/March 2013. Thousands of wrongful foreclosure lawsuits are filed each year in Georgia against banks, lenders, servicers, foreclosure firms, and other...more

A Key Lesson for Owners and Prime Contractors About Payments

Consider the following scenario: A prime contractor with a financially-shaky subcontractor agrees with the subcontractor's secured lender to make payments directly to the lender, but the word is not passed along to the...more

Rogers Towers: Florida Deficiency Proceedings: Establishing the Value of the Property

Following a foreclosure sale, a secured creditor may seek a monetary judgment for the deficiency amount that remains owed to it by the borrower. If the creditor was the successful bidder at the foreclosure sale, it has the...more

Rogers Towers: Florida Foreclosure Sales: Developing a Maximum Bid

A secured creditor who obtains a foreclosure judgment has the ability to “credit bid” at the foreclosure sale up to the full amount indicated in the judgment, without being required to deposit any funds with the Clerk of the...more

Commercial Restructuring & Bankruptcy Alert - February 2013

In this Issue: - Lenders Beware - International Insolvency Laws: Will One Size Fit All? The Debate Continues - ‘Fair and Equitable’ Means More Than Amortization Schedule - Pre-Petition Security License...more

Important Update on Georgia Foreclosures

Last year, we alerted to you to a ruling by the Georgia Court of Appeals that altered the notice requirements for non-judicial foreclosure in Georgia. In that case, Reese v. Provident Funding Associates, the Georgia Court of...more

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