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Setoff Rights Bankruptcy Code

Troutman Pepper

Can I Net Amounts Owed to the Debtor Against Amounts Owed to Me? - Creditor’s Rights Toolkit

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There are two similar but distinct mechanisms through which a creditor might net amounts owed to the debtor against amounts owed by the debtor — setoff and recoupment. Understanding the distinction between them, and how...more

Jones Day

New York Bankruptcy Court: Setoff and Unjust Enrichment Cannot Be Asserted as Affirmative Defenses in Bankruptcy Avoidance...

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In a 2021 ruling, the U.S. Court of Appeals for the Second Circuit revived nearly 100 lawsuits seeking to recover fraudulent transfers made as part of the Madoff Ponzi scheme. In one of the latest chapters in that resurrected...more

Jones Day

Setoffs Under Shari'a-Compliant Investment Contracts Not Safe Harbored in Bankruptcy

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In In re Arcapita Bank B.S.C., 2021 WL 1603608 (Bankr. S.D.N.Y. Apr. 23, 2021), the U.S. Bankruptcy Court for the Southern District of New York addressed the interaction between purported setoff rights arising under...more

Jones Day

First Impressions: Third Circuit Scuttles Triangular Setoff in Bankruptcy

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The ability of a creditor to exercise its contractual, common law or statutory rights under non-bankruptcy law to set off amounts owed to a debtor in bankruptcy against the debtor's obligations to the creditor gives...more

Troutman Pepper

Third Circuit Rules that Parties Cannot Contract Around the Mutuality Requirement for Setoff in Bankruptcy

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On March 19, in a matter of first impression, the Third Circuit Court of Appeals (Court) held that triangular setoff is not permissible in bankruptcy due to Bankruptcy Code Section 553(a)’s mutuality requirement, and that...more

Bailey & Glasser, LLP

Third Circuit Signals Possible Limitations On Setoff Rights

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Parties to corporate transactions often rely on contractual setoff rights to help ensure that they can be paid or at least limit the amounts lost if the counterparty fails to pay.  While the Bankruptcy Code generally protects...more

Faegre Drinker Biddle & Reath LLP

Third Circuit Axes Triangular Setoffs in Bankruptcy

In a March 19, 2021, decision in In re Orexigen Therapeutics, Inc., the Third Circuit joined the Second, Fifth and Seventh Circuits, prohibiting triangular setoff in a bankruptcy proceeding. A triangular setoff occurs when...more

Lowenstein Sandler LLP

Third Circuit Eschews Setoff Creativity In Favor Of A Simple Mutuality Test

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On March 19, 2021, the Court of Appeals for the Third Circuit issued its decision in In re Orexigen Therapeutics, Inc., 2021 WL 1046485 (3rd Cir. Mar. 19, 2021), affirming lower courts’ decisions rejecting “triangular setoff”...more

Kerr Russell

Why Setoff And Recoupment Matters To Businesses

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As many industries continue to struggle due to the ongoing pandemic, and invoices remain unpaid, it is more important than ever for businesses to understand their setoff and recoupment rights. These rights can be critical to...more

Jones Day

Another Bankruptcy Court Joins the Majority Camp on Post-Plan Confirmation Setoff

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In In re Rogers Morris, 2020 WL 1321894 (Bankr. N.D. Miss. Mar. 16, 2020), the U.S. Bankruptcy Court for the Northern District of Mississippi contributed to an existing split among the courts by joining the majority view in...more

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