On June 4, the Supreme Court decided Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215, in a unanimous opinion by Justice Sotomayor. The Court affirmed the Eleventh Circuit and resolved a circuit split about the meaning of...more
6/15/2018
/ Adversary Proceedings ,
Appeals ,
Bankruptcy Code ,
Business Assets ,
Chapter 7 ,
Commercial Bankruptcy ,
Congressional Intent ,
Debtors ,
Dischargeable Debts ,
False Statements ,
Judgment Creditors ,
Lamar Archer & Cofrin LLP v Appling ,
Oral Communications ,
Reaffirmation ,
SCOTUS ,
Tax Returns
Judge Martin Glenn granted recognition to a UK scheme of arrangement with third-party releases that lacked full creditor consent. In re Avanti Communs. Grp., PLC, No. 18-10458, 2018 Bankr. LEXIS 1078 (Bankr. S.D.N.Y. Apr. 9,...more
6/5/2018
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 15 ,
Commercial Bankruptcy ,
Consent ,
Creditors ,
Debtors ,
Enforcement ,
Scheme of Arrangement ,
Third-Party Release Agrements ,
UK
In a recent decision, In re B.C.I Fins. Pty Ltd. (In Liquidation), No. 17-11266, 2018 Bankr. LEXIS 1217 (Bankr. S.D.N.Y. Apr. 24, 2018), Judge Sean Lane granted a chapter 15 petition after rejecting a challenge to...more
5/18/2018
/ Australia ,
Bankruptcy Code ,
Breach of Duty ,
Chapter 15 ,
Choice-of-Law ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Fiduciary Duty ,
Intercompany Transactions ,
Jurisdiction ,
Liquidation
Section 544 of the Bankruptcy Code permits a bankruptcy trustee to avoid any transfer that would be avoidable by creditors under state fraudulent transfer law. Section 550 of the Bankruptcy Code permits the bankruptcy trustee...more
In BFP v. Resolution Tr. Corp., 511 U.S. 531 (1994), the Supreme Court held that a mortgage foreclosure sale conducted in accordance with state law was shielded from avoidance under the Bankruptcy Code’s fraudulent conveyance...more
The Bankruptcy Code provides for the appointment of a creditors’ committee in chapter 11 bankruptcy cases. See 11 U.S.C. § 1102. There is no parallel provision applicable to chapter 7 cases. When a bankruptcy case is...more
3/30/2018
/ Appeals ,
Bankruptcy Code ,
Bankruptcy Court ,
Bylaws ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Corporate Dissolution ,
Creditors ,
Czyzewski v Jevic Holding Corp ,
Debtors ,
Due Process ,
Settlement ,
Transfer of Rights ,
Trustees
This post reviews some concepts concerning executory contracts. The ground covered will be familiar to insolvency experts and should be insightful for readers who don’t specialize in U.S. bankruptcy law.
The springboard...more
3/21/2018
/ Bankruptcy Code ,
Bankruptcy Court ,
Business Ownership ,
Business Transfer Agreements ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Executory Contracts ,
Insolvency ,
Non-Disparagement Provisions ,
Settlement Agreements
Section 1141(d)(6)(A) and section 523(a)(2) of the Bankruptcy Code together provide that debts owed by a corporation to a government entity are not dischargeable if such debts were obtained by false representations. Does this...more
In Dahlin v. Lyondell Chemical Co., 2018 U.S. App. LEXIS 1956 (8th Cir. Jan. 26, 2018), the Eighth Circuit Court of Appeals rejected an argument that bankruptcy debtors were required by due process to provide more prominent...more
2/2/2018
/ Appeals ,
Books & Records ,
Chapter 11 ,
Creditors ,
Debt ,
Debtors ,
Dischargeable Debts ,
Due Process ,
Federal Rules of Bankruptcy Procedure ,
Foreseeability ,
Notice Requirements ,
Summary Judgment
In Crystallex Int'l Corp. v. Petróleos de Venez., S.A., Nos. 16-4012, 17-1439, 2018 U.S. App. LEXIS 95 (3d Cir. Jan. 3, 2018), the U.S. Court of Appeals held there could be no fraudulent transfer liability under the Delaware...more
In this post, we return to cross-border insolvencies and examine one of the first decisions issued in 2018 by a bankruptcy court in a chapter 15 case: In re Energy Coal S.P.A., No. 15-12048 (LSS), 2018 Bankr. LEXIS 10 (Bankr....more
1/9/2018
/ Bankruptcy Code ,
Chapter 15 ,
Choice-of-Law ,
Commercial Bankruptcy ,
Creditors ,
Cross-Border ,
Debtors ,
Foreign Debt ,
Insolvency ,
Italy ,
Venue
Bankruptcy courts lack the power to impose serious punitive sanctions, a federal district judge ruled recently in PHH Mortgage Corporation v. Sensenich, 2017 U.S. Dist. LEXIS 207801 (D. Vt. Dec. 18, 2018). Judge Geoffrey...more
This post examines an interesting intersection between bankruptcy and tax laws: if a corporation terminates its Subchapter S status pre-bankruptcy, can a bankruptcy trustee bring fraudulent transfer claims against the...more
12/14/2017
/ Anti-Kickback Statute ,
C-Corporation ,
Chapter 11 ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
False Claims Act (FCA) ,
Fraudulent Transfers ,
Involuntary Liquidation ,
S-Corporation ,
Shareholders ,
Split of Authority ,
Tax Refunds
On November 9, responding to a request from the U.S. Supreme Court, the Solicitor General filed a brief at the Court recommending that the petition for writ of certiorari in Lamar, Archer & Cofrin, LLP v. Appling, No....more
Figuring out when a pre-petition waiver of a jury trial will be respected in lawsuits brought in bankruptcy cases can be tricky. In a recent case, In re D.I.T., Inc., 2017 Bankr. LEXIS 3386 (Bankr. S.D. Fla. Oct. 2, 2017), a...more
In Levin v. Verizon Bus. Global, LLC (In re OneStar Long Distance, Inc.), 2017 U.S. App. LEXIS 18374 (7th Cir. Sept. 22, 2017), the Seventh Circuit recently addressed a situation where a debtor sought to reduce a creditor’s...more
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