The South Bay Law Firm Law Blog highlights developing trends in bankruptcy law and practice. Our aim is to provide general commentary on this evolving practice specialty.
 





 
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      Insolvency News and Analysis - Week Ending March 27, 2015
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    Insolvency News and Analysis - Week Ending March 20, 2015
    Insolvency News and Analysis - Week Ending March 13, 2015
       

    Insolvency News and Analysis – Week Ending November 21, 2014

    November 21st, 2014
    English: The Supreme Court of the United State...

    The Supreme Court of the United States. Washington, D.C. (Photo credit: Wikipedia)

    Trends

    Ch. 11s Fall 24 Percent in Week Ended Nov. 14 from Year Ago Pace

    Third Quarter Review

    Legislation and Rules

    A Dozen Reforms the ABI’s Bankruptcy Reform Commission Report Should Endorse

    Amendments Adopted by the Supreme Court to be Effective December 1, 2014

    Jurisdiction

    Thoughts on a New Age of Consent: What Does Consent Mean with Respect to Stern Claims?

    Secured Claims

    ‘Stripping Off’ Mortgage Cases Going To High Court

    Avoidance and Recovery

    NOLs – A Recoverable Transfer?

    Positive Health Of The Fraudulent Transferee’s Good Faith Defense

    Sales

    Buyer Beware: Payment On Assumed Debt In An Asset Sale Could Be An Avoidable Preference

    Confirmation

    Cramdown Hurdles Round 2: Confirmation Can Be An Elusive Prize

    Cross-Border

    Chapter 15 Bankruptcy: Game-Changer or False Dawn?

    Forty-Four Percent of Chapter 15s Filed in S.D.N.Y. in 2014

    Suntech Chapter 15: Moving COMI and Establishing Jurisdiction Held Legitimate and Not Improper Manipulation

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    Insolvency News and Analysis – Week Ending November 14, 2014

    November 15th, 2014
    English: The John Minor Wisdom U.S. Courthouse...

    The John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit, New Orleans, Louisiana. (Photo credit: Wikipedia)

    Trends

    Year-Over-Year Bankruptcy Filings Continue to Decline

    Claims

    Recharacterization: When Your “Loan” Becomes a “Capital Contribution”

    Avoidance and Recovery

    The Problem with Preferences

    Executory Contracts and Leases

    When termination is not termination: Bankruptcy Courts views on leases

    Reorganization

    Bankruptcy Court Bars Future Claimant from Seeking to Avoid Effect of Discharge

    Cross-Border

    In re Fairfield Sentry Ltd: Second Circuit Holds Sale of SIPA Claim by Chapter 15 Debtor Subject to Section 363 Review

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    Insolvency News and Analysis – Week of November 7, 2014

    November 7th, 2014
    English: The John Minor Wisdom U.S. Courthouse...

    English: The John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit, New Orleans, Louisiana. (Photo credit: Wikipedia)

    Trends

    Year-Over-Year Bankruptcy Filings Continue to Decline

    Current Developments

    Recent Developments in Bankruptcy Law

    Secured Claims

    Recent “Family Farmer” Case Shows How Secured Creditors Can Avoid Being Plowed Down By Unfair Cramdown Provisions

    The Bankruptcy Clause, the Fifth Amendment, and the Limited Rights of Secured Creditors in Bankruptcy

    Lenders take note of recent Fifth Circuit bankruptcy decision

    In re Motors Liquidation: No Intent Required for UCC-3 Termination Statement to be Effective

    Avoiding Collateral Damage: In re Motors Liquidation and the Effectiveness of UCC Termination Statements

    Administrative Claims

    In re World Imports: Court Denies Section 503(b)(9) Claims of Sellers Who Did Not Ship Goods Directly to the Debtor

    Proofs of Claim

    Think Twice: Signing Proofs of Claim for Clients

    Avoidance and Recovery

    Is this Harbor Safe? Second Circuit Set to Explore Limits of Bankruptcy Code Section 546(e)

    New Value Does Not Need to Remain Unpaid

    Give and Take: Delaware Bankruptcy Court Dismisses Trustee’s Turnover and Avoidance Claims Relating to Debtor’s Net Operating Losses

    Ordinary Course of Business Preference Defense Clarified in a Recent SDNY Bankruptcy Court Decision

    Sales

    Opportunistic Acquisitions: Buying Assets Through Bankruptcy

    Liquidations

    Stop in the Name of Equity: Second Circuit Affirms Dismissal of Appeals in Chapter 11 Liquidation Proceedings as Equitably Moot

    Reorganizations

    Momentive Postscript – Bankruptcy Rule 3018: Vote Changing on Chapter 11 Plans: You Can’t Have Your Cake and Eat It, Too

    Cross-Border

    Corporate Bankruptcy Tourists Land in U.S.

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    Insolvency News and Analysis – Week Ending October 24, 2014

    October 25th, 2014

    Contemporary rendering of a poster from the Un...

    Secured Credit

    Delaware Supreme Court Rules Mistakenly Filed UCC Termination Statement Is Effective in $1.5 Billion Secured Loan Transaction

    Recent Trends and Developments in DIP Financing

    Intercreditor Agreements in Bankruptcy

    Automatic Stay

    Can You Inadvertently Waive Your Automatic Stay Rights Goodbye?

    Sales

    Strategies for acquiring assets in U.S. bankruptcy cases

    Executory Contracts

    Questioning the Executoriness of Trademark Licenses in Integrated Agreements

    Avoidance and Recovery

    Preference Exposure? Keep Calm and Carry On (in the Ordinary Course of Business)

    No Good Deed Goes Unpunished When Accepting Payment from a Non-Borrower on Behalf of a Borrower

    Related Articles

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    Insolvency News and Analysis – Week Ending October 17, 2014

    October 17th, 2014

    English: Woolworth's, Banbridge (3of3) See 110...

    Involuntary Petitions

    LLP: When Is A Partnership Not a Partnership (And Who Cares)?

    Sales

    Fiduciary Considerations for Pre-Bankruptcy Transactions

    In re NE Opco, Inc: Section 363(f) Bars Pre-closing Claims Arising from Purchaser’s Alleged Wrongdoing Occurring After Entry of Sale Order

    Claims

    Environmental Claims: The Gift That Keeps On Giving

    Dismissal

    #Hashtag: Thinking of Starting Your Own Marijuana Business?

    Cross-Border

    Second Circuit Fails to See the Comity in Chapter 15

     

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    Insolvency News and Analysis – Week Ending October 10, 2014

    October 10th, 2014

    Current Events

    Commercial Restructuring and Bankruptcy News (ReedSmith, LLP)

    Venue

    The Short Case for Venue Reform

    Procedure

    Proposed Bankruptcy Rule and Official Form Changes

    Secured Claims

    Just When You Thought You Were Out, They Pull You Back In

    Credit bidding challenges in bankruptcy

    Administrative Claims

    When Are Goods “Received” by the Debtor? Establishing International Suppliers’ Entitlement to 503(b)(9) Administrative Expense Claim

    Executory Contracts, IP, and Licensing

    Questioning the Executoriness of Trademark Licenses in Integrated Agreements

    Avoidance and Recovery Actions

    Dilution Of Corporate Stock As A Fraudulent Transfer In Antonello

    R-E-C-O-V-E-R: Find Out What It Means to the Third Circuit

    Strong Arm Powers: What Can Be Done With An Avoided Lien?

    Uniform Voidable Transactions Act Approved by Uniform Law Commission to Replace UFTA

    Subordination and Recharacterization

    Focusing on Intent in Recharacterization Analysis, Delaware Bankruptcy Court Ruling Indicates that Creditors Seeking Derivative Standing Face High Hurdle

    Bankruptcy Sales

    Opportunistic Acquisitions: Buying Assets Through Bankruptcy

    Sales Free and Clear: What About Restrictive Covenants?

    Conversion and Dismissal

    Taking a Stand Where Few Have Trodden: Structured Dismissal Held Clearly Authorized by the Bankruptcy Code

    Cross-Border

    Brazilian Reorganization Plan: Fundamentally Fair or Wholesale Trampling of Creditors’ Rights?

    U.S. Causes of Action and Attorney Retainer Fund Sufficient Assets for Chapter 15 Recognition

    A “Second Bite” from the Second Circuit: Revisiting Section 363 Review of Transfers in Chapter 15 Bankruptcy Cases

    Second Circuit Holds That a Sale by a Chapter 15 Debtor in a Foreign Main Proceeding of a Claim Against an Obligor Located in the U.S. Must Be Reviewed by the U.S. Bankruptcy Court Under Section 363 of the Bankruptcy Code

    Related articles

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    What’s In A Name?

    October 2nd, 2014

    William Shakespeare

    “What’s in a name?” Shakespeare once asked, rhetorically.  According to Shakespeare’s character Juliet – and according to the US Bankruptcy Court for the District of Columbia – not a great deal.

    In a decision issued in early August, US Bankruptcy Judge Martin Teel, Jr. held that the so-called “general partner” of a District of Columbia limited liability partnership (LLP) could not, despite her title, initiate an involuntary bankruptcy proceeding against the debtor LLP.

    Bankruptcy Code section 303(b)(3) provides that one or more of a partnership’s general partners are eligible to commence an involuntary petition against the entity.  Acting under this section, the designated “general partner” of Washington DC’s Beltway Law Group, LLP commenced an involuntary Chapter 7 case against her own firm.  Judge Teel subsequently found in reviewing the petition that – notwithstanding her title of “general partner” – the principal of a District of Columbia LLP could not commence an involuntary petition against the entity.

    Judge Teel observed that the term “general partner,” for purposes of section 303(b)(3), refers to a partner who has at least some personal liability for the partnership’s debts.  Under District of Columbia partnership law, however, partners in an LLP are not liable for the LLP’s debts as a result of their partnership status.  Instead, such partners are at risk only to the extent of the capital subscribed.  An LLP is therefore more akin to a “corporation” as that term is used in section 101(9)(A).

    Judge Teel allowed that if an LLP had previously been a partnership within the contemplation of section 303(b) such that its partners were liable for the former partnership’s debts, the LLP’s status as a partnership for purposes of those debts would remain in place.  But this was not Beltway Law Group’s case.  Consequently, the petitioner – despite her title – was not a “general partner” for purposes of commencing an involuntary petition against the LLP.

    The limited liability partnership is a common entity form in many jurisdictions.  It is also an entity form which did not exist at the time the Code was drafted.  Understanding how the form is treated for purposes of involuntary filings provides useful guidance in the event of financial distress and/or a dispute amongst the holders of interests in an LLP.

    Though based in local law (here, the District of Columbia), Beltway Law Group’s discussion provides a helpful, straightforward analytical framework for determining whether an LLP may ever be classified as a “partnership” for purposes of an involuntary bankruptcy filing.  Of particular help is Judge Teel’s clarification of the difference between a “corporation” and a “partnership” as those terms are employed by the Code.

    Beltway Law Group provides localized – but nevertheless useful – guidance for practitioners who may be evaluating the possibility of an involuntary “partnership” bankruptcy filing.

     

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    Insolvency News and Analysis – Week Ending September 26, 2014

    September 26th, 2014

     

    Legislation

    False Premises of Bankruptcy Reform Agenda

    Current Developments

    The Weil Bankruptcy Blog: 2014 Mid-Year Review

    Case Commencement

    Why Pot Companies Can’t File For Bankruptcy

    Finance

    Litigation: the newest corporate finance tool

    Secured Claims

    Equitable Subrogation: “Complete and Perfect Justice” Requires Party To Be Without Fault

    Administrative Claims

    Double Dipping? Section 503(b)(9) and the New Value Defense to Preference Liability

    Avoidance and Recovery

    Bankruptcy. Extraterritoriality. District court holds that section 550(a) of the Bankruptcy Code does not apply extraterritorially to allow for recovery of subsequent transfers received abroad by a foreign transferee from a foreign transferor.

    Confirmation

    Make Whole Premiums and Unmatured Interest

    Momentive Noteholders’ Request to Change Vote Denied – You can’t have your cake and eat it too.

    Dismissals

    Structured Dismissals – How They Work Part I: Court Authority for an Alternative Ending

    Cross-Border

    German Insolvency Law — Overview of Insolvency Challenge Rights

     

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    Insolvency News and Analysis – Week Ending September 19, 2014

    September 19th, 2014

    Seal of the United States Court of Appeals for...

     

    Claims

    Court Denies Administrative Priority Status to Seller Whose Goods Were Not Received by the Debtor

    Auction Design for Claims Trading

    Sales

    Purchasers at Bankruptcy Sales — They can’t be bad and expect to be protected as “good”

    Secured Claims and Credit

    Perfection and the New Jurisdiction-Hopping Corporations

    Mysteries Of The Uniform Commercial Code: Leases Of Goods That Become Installed In, Affixed To, Or Mixed With Other Goods

    Credit Bid: Loan-to-Own Strikes Out

    Credit Bid (Round 2): What Does It Take to Show “Cause”?

    A Refresher on Lender Liability

    Sales

    Weathering the Storm: Eleventh Circuit Vacates Four-Year-Old 363 Sale Order Based on Bad Faith Filing of an Involuntary Bankruptcy Case

    Confirmation

    The Role of Profit in Valuing Chapter 11 Cramdown Paper

    Momentous Decision in Momentive Performance Materials Part IV: Make-Wholes and Third Party Releases

    Intellectual Property

    The Messy Problem of IP Licensing During Bankruptcy

    Cross-Border

    PUSHING THE BORDERS OF CHAPTER 15: WHEN A FOREIGN REPRESENTATIVE “FLOUTS” THE PURPOSES OF CROSS-BORDER INSOLVENCY

    Related articles

     

     

     

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    Insolvency News and Analysis – Week Ending September 12, 2014

    September 12th, 2014

    English: Seal of the United States Court of Ap...

    Bankruptcy Legislation

    House Panel OKs Bankruptcy Path for Big Bank Failures

    DIP Lending

    The Fifth Circuit Narrowly Construes “Good Faith” in the Context of Lending to a Debtor

    Plan Confirmation

    Momentous Decision in Momentive Performance Materials: Cramdown of Secured Creditors – Part I

    Momentous Decision in Momentive Performance Materials: Cramdown of Secured Creditors – Part II

    Momentous Decision in Momentive Performance Materials: Subordination Is as Subordination Does

    Avoidance and Recoveries

    Only Debtor’s Intent Relevant in Fraudulent Conveyance Claim

    An Argument for Creating an Exception to Section 547 for Payments on Intraday Overdrafts

    DISTRICT COURT ADOPTS SUBJECTIVE GOOD FAITH DEFENSE FOR FRAUDULENT TRANSFER CLAIMS IN SIPA CASE

    Claims

    Post-Petition Interest: Not Very Predictable

    Publication Notice in The Wall Street Journal and the Orange County Register May Not Be Sufficient Notice to Unknown Creditors

    Intellectual Property

    A Closer Look At Recent Trends At The Intersection Of Intellectual Property And Bankruptcy Law

    Cross-Border

    Harmonizing Choice-of-Law Rules for International Insolvency Cases: Virtual Territoriality, Virtual Universalism, and the Problem of Local Interests

    Related Articles

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