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|Mississippi Amends and Reenacts S.A.F.E. Mortgage Act|
C. Phillip Buffington, Elena A. Lovoy; Adams and Reese LLP;
August 11, 2016, previously published on June 28, 2016Mississippi’s S.A.F.E. Mortgage Act (“SAFE Act”) was scheduled to be repealed on July 1, 2016. On April 6, 2016, Governor Bryant approved Senate Bill 2504 (“S.B. 2504”), which reenacts the SAFE Act and makes a number of substantive changes to the requirements under the...
|Chapter 13 Debtor Unable to Modify Confirmed Plan to Surrender Collateral|
Christine L. Myatt; Nexsen Pruet, LLC;
August 5, 2016, previously published on May 10, 2016The U.S. Bankruptcy Court for the Eastern District of North Carolina in In Re Reuben Samuel Royal, Case No, 14-07134-DMW (May 2, 2016) recently concluded that the Chapter 13 debtors cannot surrender a vehicle back to the lender after confirmation of a Chapter 13 plan even though the vehicle was...
|New Cause of Action from Business Court?|
Ron Jones; Nexsen Pruet, LLC;
August 5, 2016, previously published on May 17, 2016In a recent case from the Business Court in Brunswick County, a North Carolina Judge held that Defendants could assert a claim for breach of the duty to negotiate in good faith finding that negotiations for a loan modification and renewal gave rise to a genuine issue of material fact as to whether...
|All Is Good With Bad Boy Guaranties|
Douglas Turner Coats, Y. Jeffrey Spatz; Gordon Feinblatt LLC;
August 5, 2016, previously published on April 2016Implicitly overruling its conclusion in memorandum 201606027 dated February 7, 2016 (the "Prior Memorandum"), on March 31, 2016, the Internal Revenue Service (the "Service") Office of Chief Counsel released memorandum 2016-001 (the "Memorandum") which concludes that...
|Delaware Bankruptcy Court Reaffirms the Viability of Class Proofs of Claim in PacSun Bankruptcy|
Kevin C. Maclay, Todd E. Phillips, Sally J. Sullivan; Caplin & Drysdale, Chartered;
August 1, 2016, previously published on July 18, 2016On June 22, 2016, the Bankruptcy Court for the District of Delaware allowed a putative creditor class to file a class proof of claim in the In re Pacific Sunwear of California, Inc., et al., bankruptcy proceedings.1 In granting the motion, the bankruptcy court applied its discretion to certify a...
|Eleventh Circuit Holds That Bankruptcy Rules Apply to Adversary Proceedings in District Court, Orders Reinstatement of $6-Million Verdict on Procedural Grounds|
Sutherland Asbill Brennan LLP;
July 8, 2016, previously published on July 1, 2016When a federal district court oversees adversary bankruptcy proceedings, is the post-trial deadline to request judgment as a matter of law governed by Federal Rule of Civil Procedure 50(b), which allows 28 days to file such a motion—or by Bankruptcy Rule 9015(c), which allows only 14 days?...
|First Impressions: Third Circuit Rules That a Terminated Collective Bargaining Agreement May Be Rejected Under Section 1113|
Mark G. Douglas, T. Daniel (Dan) Reynolds; Jones Day;
June 15, 2016, previously published on May/June 2016In In re Trump Entm’t Resorts UNITE HERE Local 54, 810 F.3d 161 (3d Cir. 2016), the U.S. Court of Appeals for the Third Circuit answered a question of apparent first impression among the circuit courts of appeal by ruling that section 1113 of the Bankruptcy Code permits a bankruptcy trustee...
|Seventh Circuit Rules That Prepetition Nonresidential Lease Termination Is Voidable “Transfer” in Bankruptcy|
Mark G. Douglas, Timothy (Tim) Hoffmann; Jones Day;
June 15, 2016, previously published on May/June 2016Even before Congress added section 365(c)(3) to the Bankruptcy Code in 1984, it was generally understood that a nonresidential real property lease which has been validly terminated under applicable law prior to a bankruptcy filing by the debtor-former tenant cannot be assumed or assigned in...
|Blocking Member Provision in LLC Agreement Designed to Prevent Bankruptcy Filing Unenforceable|
Mark A. Cody, Mark G. Douglas; Jones Day;
June 15, 2016, previously published on May/June 2016A contractual waiver of an entity’s right to file for bankruptcy is generally invalid as a matter of public policy. Nonetheless, lenders sometimes attempt to prevent a borrower from seeking bankruptcy protection by conditioning financing on a covenant, bylaw, or corporate charter provision...
|Liquidating Trusts Remain a Viable Alternative for Unsecured Creditors (and Deficiency Secured Claims)|
Alan H. Goodman; Breazeale, Sachse & Wilson, L.L.P.;
June 8, 2016, previously published on May 2016As the oil industry bankruptcy wave continues, the liquidating trust alternative pursuant to a Chapter 11 plan remains a viable alternative for the unsecured creditors who often are left behind (as well as deficiency claims of secured creditors).