Under Section 101(54) of the bankruptcy code, any means of disposing with an interest in property is considered a transfer, and therefore, under certain circumstances, may be avoided as a preference or fraudulent transfer. In...more
Turns out, it depends on who you ask. Judge Bernstein said no. Recently, Judge Glenn said yes, but only for causes of action that resemble actual fraudulent transfers. It is unusual for the bankruptcy judges in Manhattan to...more
Analyzing the inner workings of the elements required for the securities contract “safe harbor” protection under Section 546(e) of the Bankruptcy Code, the Bankruptcy Court for the SDNY dismissed a complaint seeking to...more
It is well established that by filing a proof of claim in bankruptcy, a creditor submits itself to the equitable jurisdiction of the bankruptcy court and waives any right it would otherwise have to a jury trial with respect...more
Disagreeing with the much-critiqued SDNY opinion in Enron, the SDNY bankruptcy court disallowed claims brought by secondary transferees because the original claimants allegedly received millions of dollars in fraudulent...more
4/29/2020
/ Avoidable Transfer ,
Bank Fraud ,
Bankruptcy Code ,
Banks ,
Chapter 11 ,
Commercial Bankruptcy ,
Corporate Crimes ,
Criminal Proceeds ,
Debtors ,
Fraudulent Transfers ,
Secondary Markets ,
Section 502
Section 546(e) of the Bankruptcy Code excepts certain transfers made to certain protected parties, under or in respect of securities contracts, from avoidance as preferences or constructively fraudulent transfers. A recent...more
Answering “no” to a certified question from the Fifth Circuit, the Supreme Court of Texas held that a transferee on inquiry notice of fraud cannot shield itself from clawback without diligently investigating its initial...more
1/16/2020
/ Affirmative Defenses ,
Appeals ,
Bankruptcy Code ,
Clawbacks ,
Creditors ,
Debtors ,
Failure to Investigate ,
Fraud ,
Fraudulent Transfers ,
Good Faith ,
Inquiry notice ,
Internal Investigations ,
Investors ,
Stanford Ponzi Scheme ,
Transferees ,
TX Supreme Court ,
UFTA
In March 2018, the U.S. Supreme Court handed down its opinion in Merit Management Group, LP v. FTI Consulting, Inc., unanimously affirming the Seventh Circuit, holding that transfers are not protected from avoidance under the...more
Two United States Bankruptcy Judges for the Southern District of New York recently issued a joint opinion addressing common issues raised by motions to dismiss in two separate adversary proceedings – one pending before Judge...more
5/14/2018
/ Adversary Proceedings ,
Appeals ,
Avoidance ,
Bankruptcy Court ,
Breach of Duty ,
Chapter 11 ,
Chapter 15 ,
Comity ,
Commercial Bankruptcy ,
Conservators ,
Debtors ,
Dismissals ,
Fiduciary Duty ,
Financial Crisis ,
Foreign Banks ,
Forum Non Conveniens ,
Forum Shopping ,
Fraudulent Transfers ,
Insolvency ,
International Litigation ,
Judicial Review ,
Motion to Dismiss ,
Multi-Jurisdictional Litigation ,
Parent Corporation ,
Receivership ,
Stays ,
Ultra Vires