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Secured Creditor's "Net Economic Damages" Estimate of Disputed Claims "Plainly Insufficient" to Establish Collateral Value

Valuation is a critical and indispensable part of the bankruptcy process. How collateral and other estate assets (and even creditor claims) are valued will determine a wide range of issues, from a secured creditor's right to...more

Bolstering the Majority Rule: Bankruptcy Court Holds that Adjudication of Avoidance Liability Is Prerequisite to Disallowance of...

The U.S. Bankruptcy Court for the Eastern District of North Carolina recently added some weight to the majority rule on an issue that has long divided bankruptcy and appellate courts. In In re Southern Produce Distributors,...more

Assets May Be Sold in Bankruptcy Free and Clear of Successor Liability

The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to sell assets of the bankruptcy estate "free and clear" of "any interest" in the property asserted by a non-debtor is an important tool designed...more

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

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

Expanding the Scope of the Bankruptcy Safe Harbor for Securities Transactions

In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were...more

Force Majeure Clause Triggered by Pandemic Shutdown Order Partially Relieves Chapter 11 Debtor from Timely Paying Postpetition...

With their doors closed by mandatory government shutdown orders in effect until most states started gradually reopening in May and June, many businesses have found it difficult or impossible to satisfy their lease obligations...more

Oversecured Creditor's Right to Contractual Default-Rate Interest Allowed Under State Law

It is generally well understood that an "oversecured" creditor is entitled to interest and, to the extent provided for under a loan agreement, related fees and charges as part of its secured claim in a bankruptcy case....more

Eighth Circuit Rules that Bankruptcy Code's Cap on Lease Damage Claims Applies to Fraudulent Transfer Judgment

To prevent landlords under long-term real property leases from reaping a windfall for future rent claims at the expense of other creditors, section 502(b)(6) of the Bankruptcy Code caps the amount of a landlord's claims...more

Use of Cash Collateral to Pay Prepetition Debt Not Prohibited by Jevic

The ability of a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") to use "cash collateral" during the course of a bankruptcy case may be vital to the debtor's prospects for a successful reorganization. However,...more

Legislative Update - June 2020

Coronavirus Aid, Relief, and Economic Security (CARES) Act - On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 (the "CARES Act"). The...more

From the Top in Brief - June 2020

The U.S. Supreme Court recently handed down three rulings potentially impacting bankruptcy cases. Nunc Pro Tunc Relief - In Roman Catholic Archdiocese of San Juan v. Acevedo Feliciano, No. 18-921, 2020 WL 871715 (U.S....more

Post-Taggart, Ninth Circuit BAP Holds That "No Fair Ground of Doubt" Standard Applies to Automatic Stay Violations

In Taggart v. Lorenzen, 139 S. Ct. 1795 (June 3, 2019), the U.S. Supreme Court ruled that a bankruptcy court may hold a creditor in civil contempt for attempting to collect on a debt that has been discharged in bankruptcy "if...more

Oil and Gas Industry Update - Sabine Oil Not the Last Word on Treatment of Gathering Agreements in Bankruptcy

In a leading precedent handed down in 2018—Sabine Oil & Gas Corp. v. Nordheim Eagle Ford Gathering, LLC (In re Sabine Oil & Gas Corp.), 734 Fed. Appx. 64 (2d Cir. May 25, 2018)—the U.S. Court of Appeals for the Second Circuit...more

Resurgence of Bifurcation Approach to Priority of Straddle Year Taxes in Bankruptcy

A basic tenet of bankruptcy law, premised on the legal separateness of a debtor prior to filing for bankruptcy and the estate created upon a bankruptcy filing, is that prepetition debts are generally treated differently than...more

In Brief: Fifth Circuit Vacates Ruling that Make-Whole Premium Is Disallowed Unmatured Interest but Holds Firm on Bankruptcy Code...

In the July/August 2019 issue of the Business Restructuring Review, we discussed a landmark decision by the U.S. Court of Appeals for the Fifth Circuit in In re Ultra Petroleum Corp., 913 F.3d 533(5th Cir. 2019) ("Ultra I")....more

Stay Extended to Bar Litigation Against Chapter 15 Foreign Representatives but No Ruling on Extraterritoriality of Barton Doctrine

In McKillen v. Wallace (In re Irish Bank Resolution Corp. Ltd.), 2019 WL 4740249 (D. Del. Sept. 27, 2019), the U.S. District Court for the District of Delaware had an opportunity to consider, as an apparent matter of first...more

The Year in Bankruptcy: 2019

Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and...more

"Single-Satisfaction Rule" Does Not Preclude Bankruptcy Trustee's Recovery of Mortgage Loan Proceeds After Avoidance of Mortgage...

Under the "single-satisfaction rule," although a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") may seek to avoid and recover avoidable transfers of a debtor's property from more than one transferee, the...more

Business Restructuring Review - September 2019

Chapter 11 Plan Distributions Are Not Collateral Covered by Intercreditor Agreement's Waterfall Provision - In In re Energy Future Holdings Corp., 2019 WL 2535700 (3d Cir. June 19, 2019), a panel of the U.S. Court of...more

Legislative Update

On August 23, 2019, President Trump signed into law four pieces of bankruptcy legislation designed to help financially distressed small businesses, disabled veterans, National Guard and reservists, and family farmers. Those...more

Delaware Bankruptcy Court Adopts Interim Modalities for Court Communication in Cross-Border Bankruptcies

After discussions among judges from several jurisdictions, including Argentina, Australia, Bermuda, the British Virgin Islands, Canada, the Cayman Islands, England and Wales, Singapore, and the United States, at the initial...more

Presumption of Filed Claim's Validity and Amount Does Not Apply in Proceeding to Determine Secured Amount of Claim

The Bankruptcy Code creates a rebuttable presumption that a proof of claim is prima facie evidence of the claim's validity and amount. Courts disagree, however, over whether that presumption also applies in a proceeding to...more

Bankruptcy Court Denies Creditor's Improper Discovery Request

The scope of discovery available in a bankruptcy case concerning a debtor's conduct, property, financial condition, and related matters is so broad that it has sometimes been likened to a permissible "fishing expedition."...more

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