Thursday, January 12, 2012

Freshness Never Looked So Disheartening: Hostess' Round Trip to Bankruptcy Court Begins

As noted in Steve Mufson's excellent summary in today's Washington Post (made all the more excellent by having quoted me!), the iconic Hostess Brands fell into bankruptcy yesterday.  As with every bankruptcy case, the best summary is found in the "first day affidavit" of the company's leading executive, in this case Brian Driscoll, Hostess' CEO and board member.  From it, we learn that Hostess was founded in 1927 and went on an acquisition spree over the next 60 years to amass 36 bakeries, 565 distribution centers, 5,500 delivery routes, and 570 bakery outlet stores in the US.  We also learn, not surprisingly, that it operates in a "mature industry with high levels of competition and related pricing pressures, thin operating margins, and competitors with more sophisticated technology and significant cost advantages."

As most people know, that mature industry with razor-thin margins also led Hostess to file bankruptcy in 2004 under the name Interstate Bakeries Corporation (IBC).  That bankruptcy languished for 4 years, with liquidation often considered a real possibility.  But the parties eventually worked through the differences in hard-fought negotiations and Hostess emerged in early 2009 with a new name and a new capital structure ("4 tiers of secured debt ... of $860 million").  Unlike the government sponsored bankruptcies of Chrysler and GM that followed in short order, however, the bankruptcy effectuated no changes in Hostess' legacy costs.  Mr. Driscoll's first-day affidavit says Hostess won't make that mistake this time around.

Why did Hostess' plan fail?  Well, it was losing $150 million a year going into confirmation in 2008 and wasn't projected to start generating real net income until fiscal year 2012.  Based on the financial projections, it seems the dream of the reorganization team (which lost a lot of money on this bet) was to turn the company around in five years, generate about $150 million in "EBITDA," and sell the reorganized company at some multiple of EBITDA to the next pipe dreamer at a number that would get debt and equity investors out whole, perhaps even with a modicum of profit. 

But, as Robert Burns waxed poetically in 1786--later popularized by John Steinbeck--"the best laid schemes of mice and men gang aft a-gley [often go awry]."  Instead of generating sales of $2.9 billion in FY 2011, it only generated $2.5 billion.  Instead of losing $34 million and $9 million in FY 2010 and 2011, respectively, it lost $138 and $341 million.  Highly leveraged, with interest costs of about $60 million a year, Hostess ended up collapsing like a badly baked cupcake.

Here's the full plan and disclosure statement from Hostess' 2008 reorganization for those wanting to read the gory details of its first extended trip into bankruptcy. 

Based on the restructuring plan outlined in Mr. Driscoll's affidavit, Hostess' second trip into bankruptcy won't be as extended, but certainly will be contentious.

Thanks for reading!

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Tuesday, December 27, 2011

"Going Out of Business" Sales: An Interview with NPR's Planet Money

Planet Money's Zoe Chace today aired an excellent story on retail "going out of business" sales.  This 6 minute piece is a whirlwind glimpse into these sales from the perspective of the liquidator, the retailer and its staff, the consumer, and the bankruptcy lawyer (me). 

Thanks to Planet Money, who last interviewed me back in 2009 as GM was hitting the skids, for the opportunity to share my thoughts and help explain how the frenetic world of retail liquidation works.  My wide ranging 30 minute interview with Zoe was left--but for about 30 seconds--on the cutting room floor, but that's show biz!  But I think the interview gave Zoe a good frame of reference to assemble her piece, and it showed in the confident style with which she presented the basic dynamics of this unique sale process.

For those wanting some additional reading on the legal agreements behind the Borders' liquidation, which were "state of the art" from a legal perspective, here are some good materials (that are sure to put even the most hardened insomniacs to sleep if read word-for-word):

Motion to Sell Assets and Enter into Agency Agreement with the Liquidators

Order Approving Sale of Assets and Entry into Agency Agreement with Liquidators

Happy holidays to all!

(For those interested, here's my "holiday lights" post from two years ago, which the lights of the season always make me reflect upon and is a fitting reminder of the importance of maintaining dignity and hope in the face of seemingly insurmountable odds.)

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Sunday, November 20, 2011

Bankruptcy Tweets for September 2011 - Part I

Below are my first 46 bankruptcy case tweets of September 2011 and 9 other tweets of general interest.  RSS Feeds are also available.  All my twitter posts are here (twitter) or here (blog).  

Twitter doesn't seem very Google-friendly so it seems the only way to search for these tweets through Google is by posting them on my blog, which is why I'm now catching up on posting my tweets to the blog.

The chart from a post entitled Apple Has 4% Of The Phone Market, And 52% Of Its Profits is the "Money Game Chart of the Day" for 11/7/11.

Bankruptcy Cases and Topics

  • B-AK: Plan allowing sale of collateral free & clear strips creditor of collateral w/out comp. & can't be crammed down. http://t.co/R0bHshk
  • D-LA: Per FRBP 8003(a), obtaining leave to appeal interloc order w/out filing sep. motion for leave is fatal to appeal. http://t.co/tsMhfFy
  • B-PA: Though equities somewhat favor discharged indiv ch 7 debtor, a post-discharge reaffirmation agr is unenforceable. http://t.co/74Ns0X9
  • SDNY: Guaranties to LBHI had enforceable jury waiver despite allegations that the guaranties were fraudulently induced. http://t.co/fVZkdIR
  • B-NM reviews scope of §1123(a)(5) and ability to supercede reqts of applicable non-BK law to effectuate plan tsfs. http://t.co/1lfrN9Z
  • Credit Slips cites to 8/29/11 Bloomberg article: "Revolt Weakens Jones’ Control of Fifth Circuit Law [on] Bankruptcy." http://t.co/qncDAn1
  • B-NM acknowledges split of authority in holding that §106(a) abrogates the sovereign immunity of Indian Tribes. http://t.co/1lfrN9Z
  • B-TN reviews the doctrine of quasi-judicial immunity for BK trustees & their counsel as applied thru the circuits. http://t.co/mhgmVmN
  • B-TX: Settlement agrs.-by definition-settle a debt owed prior to the satisfying transfer & are paid on antecedent debt. http://t.co/F7DlPsK
  • D-FL: Permissive abstention motions and improper venue motions are interlocutory & not immediately appealable. http://t.co/pKkwVfS
  • Can Creditors File A Derivative Action Against Limited Liability Company? by Scott Riddle
  • 10th BAP reviews split re Ch 7 ttee's rts to $$ in Dbtr's bank acct on filing date & requires funds turnover by Dbtr. http://t.co/WX6jNny
  • 10th BAP: §542(a) turnover req't applies if one holds estate prop. at any time during case; current psn. not required. http://t.co/WX6jNny
  • D-IL: Ch 13 dbtr cant bring undisclosed action after BK case closed if it arose after BK filing & during admin of case. http://t.co/6IH33Zf
  • D-TX: Fr. tsf. claims ag. nondebtor co-defendants stayed, but no other claims, which will be severed & will proceed. http://t.co/6IH33Zf
  • B-FL rejects "absurd" USA arg. that separate, explicit waiver of sov. imm. per "applicable law" req'd of §544 actions. http://t.co/2ywRV7K
  • B-AK: EDCanada entitled to fees for subst contrib per §503(b)(3)(D) in getting better terms under plan for unsecureds. http://t.co/sgHA6Z8
  • D-CA: When a court dismisses a complaint without prejudice & permits amendment to the complaint, it's interlocutory. http://t.co/7ycxMvU
  • BAP-8: Settlement w/largest creditor in Petters case affirmed on appeal on merits w/good summary of case law standards. http://t.co/7tzzthi
  • D-TX: Per §362(a), Dbtr cant pursue DJ noninfring ct-claims that are inextricably intertwined w/infring claims ag Dbtr. http://t.co/ENDpu0r
  • B-IL examines 7th Cir authority re whether conversion of a security deposit is nondischargeable under § 523(a)(4). http://t.co/HrOHjrw
  • B-IL: No equity in condos of SARE, but proposed plan has reas. prob. of success if mkt improves, so stay not lifted. http://t.co/v3Xz2tb
  • B-IL adopts 19% discount rate to tenant cash flows to determine value of Chicago-based SARE project of unsold condos. http://t.co/v3Xz2tb
  • B-NEB post-Stern vacates judgment on debtor's action to collect on matured, undisputed acct. receivable under § 542(b). http://t.co/tagkB8C
  • B-NE post-Stern vacates order on alleged debt claimed by Debtor that Defendant called a capital contribution by Debtor. http://t.co/tagkB8C
  • B-PA: For non-consumer secured property, §506(a) valuation must be based on replacement value, as required by Rash. http://t.co/HPChPp1
  • D-TX reminds of J. Easterbrook's analysis of applicability of stay on a DJ action of noninfringement brought by debtor. http://t.co/ENDpu0r
  • D-IL wont w/draw ref. of fr. tsf action; Stern didn't strip BK Ct of auth. to hear claims & propose facts/law to D-CT. http://t.co/pFDS1XJ
  • 7th: When LLC mgmt is vested in its members, the members are like a corp. directors & so are insiders per §101(31)(B). http://t.co/SvDFYRA
  • B-TX: BakerBotts gets lodestar + 4% enhancement (not 20% requested) + $5M (not $8M) for preparing & defending fee apps. http://t.co/HTGMq9T
  • B-TX provides detailed analysis in ASARCO of all factors of §330(a) plus a host of others in granting BakerBotts fees. http://t.co/HTGMq9T
  • B-TX relies on SCOTUS 2010 Perdue decision to establish principles for fee enhancement & sets increase at 4%, not 20%. http://t.co/HTGMq9T
  • B-TX: Lodestar + 10% enhancement appropriate for exceptional results of Asbestos Future Claims Rep & attys in ASARCO. http://t.co/ihGCgo2
  • B-TX: Asbestos Comm. in ASARCO granted lodestar + 10% of alter ego litigation hours instead of overall 25% enhancement. http://t.co/udKOd3l
  • B-TX reviews many nuances of Liq Trust's rights arising from dbtr's joint-client rel. w/former parent in suit over LBO. http://t.co/YVxDXPL, but note that informs that this B-TX Crescent decision on turnover action reviewing nuances of liq trust priv& jt-client rts. is stayed pending appeal.
  • B-MT wont let Comm. atty sandbag dbtr by using FRE 408 to deny that preconf. deal deferring fees overrides plan terms. http://t.co/dT6LXmL
  • B-TX agrees that dismissal of ch 11 warranted & won't substantively consolidate dbtr w/affiliate to avoid dismissal. http://t.co/Aq0aFhy
  • B-TX addresses the "meaning of and developed law on substantive consolidation," incl. 5th Cir. admonitions. http://t.co/Aq0aFhy
  • B-NH reviews origin & history of "received by the dbtr" in §503(b)(9) & related concept of "possession" under the UCC. http://t.co/oWy7ehS
  • B-NH reviews circuit split re whether §503(b)(9) admin claim is subject to disallowance under § 502(d) & says it’s not. http://t.co/oWy7ehS
  • B-AK: "Dragnet" future advance clauses dont apply to agreements assigned to cover another's previous unsecured advances. http://t.co/jWahLTR
  • B-AL: "Relatively low threshold of proof will satisfy § 1129(a)(11) so long as adeq. ev. supports a finding of feas." http://t.co/AWQNjOx
  • B-SDNY: Attys to BK profs that are hired to prepare fee app dont need §327 approval, but Ct must approve fees as reas. http://t.co/9K8PsOM
  • B-NC dismisses Ch. 11 case for cause bec of 1) obj futility of reorg & 2) petitioner's subj bad faith in filing for BK. http://t.co/Rc7SEFZ
  • B-NC: Bad faith filing based on "new-dbtr syndrome" (2 unrelated entities merge to stop F/C & force case elsewhere). http://t.co/Rc7SEFZ

Topics of General Interest

  • Angry crowd turns on journalists reporting embassy attack in Egypt. "They were animals!" says CNN rptr. in middle. http://t.co/GeLhb0d
  • Great article on the middle class squeeze & the new marketing reality of the "hi-end/low-end consumer hourglass."
  • When will this madness stop & Americans/NYers stop killing each other? High-School Basketball Star Slain on 9/11.
  • About 18,000 homicides each year since 2001 or about 50 per day. That's the equivalent of 9/11 deaths once every 2 months! Our war at home.

 Thanks for reading!

© Steve Jakubowski 2011

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Saturday, November 19, 2011

Bankruptcy Tweets for August 2011 - Part III

Below are my last 51 bankruptcy case tweets of August 2011 and 6 other tweets of general interest since my last post of August 25.  RSS Feeds are also available.  All my twitter posts are here (twitter) or here (blog).  

Twitter doesn't seem very Google-friendly so it seems the only way to search for these tweets through Google is by posting them on my blog, which is why I'm now catching up on posting my tweets to the blog.

The chart from a post entitled The Housing Dip Continues is the "Money Game Chart of the Day" for 8/30/11. 

Bankruptcy Cases and Topics

  • B-DE lacks S-M JD over post-conf. related-to actions vs NYS not reserved in plan; incr. recoveries give insuffic nexus. http://t.co/Z9ovEwn
  • B-SDNY analogizes Madoff's co-founder to Icarus who flew giddily towards Madoff until his wings of innocence melted. http://t.co/Zx70xtZ
  • MD-FL: Dbtr's discov. failures mean evid of $200M forfeiture settlement & any "adverse tax conseq" excluded from trial. http://t.co/SDIIJ7U
  • MD-FL: Atty lien wont attach to plan payments; conf. order is final jdgmt & lien notice must issue bef. jdgmt entered. http://t.co/Gsr8mfw
  • B-FL: §506(c) overrides state law under which lenders aren't required to pay condo assessments during foreclosure case. http://t.co/SWRi3MU
  • B-MI allows small bs. plan to proceed w/out required extension under §1129(e) bec debtor was diligent & issues complex. http://t.co/popVH0Nt.co/popVH0N
  • B-TX: Noncollusive foreclosure complying w/state law avoidable as pref. if cr. gets prop. for less than in hypoth. liq. http://t.co/ev7MqOFt.co/ev7MqOF
  • B-TX reviews circuit split―& unpalatable resolution―re extent of postpet. pre-rejection rent due under §365(d)(3). http://t.co/N49wR3O
  • B-TX adopts 4th Cir. Midway that §365(d)(3) allows a landlord to recover an administrative expense under §503(b). http://t.co/N49wR3O
  • B-TX analyzes landlord right to stub rent, holdover/pre-rejection period & post-rejection/pre-vacancy period.  http://t.co/N49wR3O
  • B-MT holds per Stern ok to decide eq. subord & pref. actions but not fr. tsf ones bec they arent w/in public rts excep. http://t.co/g4NzRl4
  • B-MI: Deferred payment to 1-time funeral home creditor not pref. bec credit extensions w/in ord course of its business. http://t.co/Sghf59b
  • 8-BAP: Per Stern, removed replevin actions against nondebtor cos. arent core bec they dont arise in or under a BK case. http://t.co/QFyBARZ
  • SDNY: Sec. Pltfs appeal of 3d party releases equitably moot for failure to object at conf. or seek stay pending appeal. http://t.co/K78eYvf
  • B-ND wont lift stay or dismiss case on eve of foreclosure sale even where CEO makes seeming low-ball offer for asset. http://t.co/CwYOEqp
  • D-AZ concluded presumption ag. fraudulent joinder wasn't rebutted, so diversity jurisdiction destroyed & case remanded. http://t.co/1XeUA7b
  • B-TN: Prior NY law requiring LLC's dissolution upon BK filing of a member is rendered ineffective by § 541(c)(1). http://t.co/JqoYoPJ
  • B-TX: Dischargeability right & amount nondischargeable is central to public BK scheme, so BK Ct can rule on per Stern. http://t.co/7Z1GU1s
  • B-MA reviews enforceability of entity's voluntary agreement not to file BK; gen. requires indep. showing of bad faith. http://t.co/XfagZq9
  • B-MA: BK filing for sole purpose of frustrating imminent foreclosure is not in & of itself bad faith. http://t.co/iTFgsM9
  • B-MA: State Ct. injunction ag. right to file BK or to convey property to enable BK filing is overbroad & unenforceable. http://t.co/iTFgsM9
  • B-MI concludes per Stern can enter final orders in 363, 303, 362, 524, claims resolution & (maybe) 1123(b)(6) matters. http://t.co/NBo0Ufq
  • B-MI asks: Would citing to Murray's have derailed GM 363 sale bec Art. III judges & adjuncts can't enter such an order?  http://t.co/NBo0Ufq
  • Weil Bankruptcy Blog post collects some of the cases interpreting Stern v. Marshall. http://t.co/Jht3buj
  • B-MD: Whether debtor is a "business trust" per §101(9)(A)(v) is a federal question independent of state law rules. http://t.co/BD1KjrL
  • B-MD: Debtor is "business trust" per §101(9)(A)(v) if "primary purpose" is to carry on business & not to preserve res. http://t.co/BD1KjrL
  • B-NJ: §506(b) applies only to postpet. int/fees/costs; prepet. penalties/int/fees/costs governed by §502 not §506(b). http://t.co/E3xAQWS
  • B&W Creditor Blog: Coudert Brothers LLP Bankruptcy: Development Specialists, Inc. v. Orrick Herrington & Sutcliffe. http://t.co/nc9XIxc
  • D-IL: Attorney-client privilege wont survive a corp.'s death; Ct reviews factors to determine whether corp. has "died." http://t.co/MhzUwDm
  • B-MT: Funds sent by 3d parties to indiv ch 11 dbtr's atty as retainer was gift that ch 7 trustee owned upon conversion. http://t.co/TaxNVYe
  • D-NY: IRS not objecting to liq. trust's claim of liability doesnt deprive BK Ct of post-conf. JD to fix liab. per §505. http://t.co/PaYt3Cx
  • SDNY: Claims of fraudulent inducement to enter into guaranties not ground for invalidating jury waivers therein. http://t.co/zmwKAeS
  • D-LA: Per FRBP 8003(a), obtaining leave to appeal interloc order w/out filing sep. motion for leave is fatal to appeal. http://t.co/tsMhfFy
  • D-NC: No "unusual circumstances" warrant extension of stay to nondebtor's counterclaim against nondbtr co-pltfs w/dbtr. http://t.co/Ob3SX5f
  • D-DEL dismisses appeal of Spansion confirmation order on equitable mootness grounds under Continental 5-factor test. http://t.co/bgnZhS2
  • B-VI notes circuit split re if burden of proof for intentional fraudulent tsf is clear & convincing or preponderance. http://t.co/9SbnOVK
  • B-VI, applying Stern, issues final jdgmt on §548/549 issues, but if―Stern read broadly―only a report on §544(b) issue. http://t.co/9SbnOVK
  • B-VI: Courts have relied on the word "value" in § 550(a) to authorize a pre-jdgmt interest award in avoidance actions. http://t.co/9SbnOVK
  • B-VI: §544(b) standing exists only if an unsec. cr. exists who can assert the requisite nonBK cause of action. http://t.co/9SbnOVK
  • B-VI: Imputation doctrine can attribute officer fraud to corp in fraudulent tsf, subject to rules re adv. int. excep. http://t.co/9SbnOVK
  • D-AL: Mutual releases in plan between debtor & insiders appropriate where plan funding came from insiders in exchange. http://t.co/pHgBqWu
  • D-FL reminds about the complications on appeal of a BK judge adopting counsel's proposed order nearly verbatim. http://t.co/1AhIsl4
  • D-FL: Lease dispute w/dbtr is noncore: involves no subst. BK rt, is governed by state law & can be decided out of BK. http://t.co/1AhIsl4
  • 5th: BK Cts can recharacterize any debt to equity (not just insider claims) as part of inherent authority under §502. http://t.co/URgmFbA
  • 5th: Actual notice of bar date required for known crs., while publication notice in WSJ is sufficient for unknown crs. http://t.co/m4SDNVC
  • D-OH: Individualized dgs. recoverable under UFTA doesn't mean an indiv. cr. has stdg in a BK to bring a fr. tsf action. http://t.co/q4zVrh8
  • D-OH cites to cases that once BK filed, cr. loses standing to bring fr. tsf, alter ego, or RICO claims ag 3d parties. http://t.co/q4zVrh8
  • D-OH denies nondbtr's claims ag dbtr's atty for aiding a fr. tsf bec injury is general & common to dbtr & all crs. http://t.co/q4zVrh8
  • D-OH: Whether dgs general/specific, not sep./sameness of pool of money, determines nondbtr's rts to sue 3d parties. http://t.co/q4zVrh8
  • B-PA: Absent express lang. in stip, funds escrowed in adeq prot stip for taxes aren't in trust for sec cr or tax body.  http://t.co/6NgDr2P
  • D-KY: Notice of appeal too late bec BK Ct's deferring issue of post-jdgmt int./fees didnt change final nature of jdgmt. http://t.co/m4SDNVC

Topics of General Interest

  • Indeed a great read @johnpmcdermott   Tony Blair's ostensibly contrarian column on the cause of the riots http://gu.com/p/3xbzx/tw @guardian
  • Remembering my Mom, A"H, who survived the Holocaust & rebuilt w/ dignity, on the 5th anniv. of her passing. Story here:  http://t.co/FpbAMrj
  • Dow surges 322 points on news that DC hit by large earthquake.  @alexjakubowski
  • Widespread Radiation in Japan-Latest data point to cesium spreading, potentially contaminating rivers, lowland & ocean. http://t.co/FuxQQuQ

 Thanks for reading!

© Steve Jakubowski 2011

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Monday, August 29, 2011

Get Your Daily Dose of Daily Deals at THE DAILY DAC!

There's an online subscription site, THE DAILY DAC, that is quickly gaining traction among bankruptcy and distressed M&A professionals by carving out for itself a niche in the underserved distressed M&A market for smaller acquisitions.  With smaller UCC foreclosure, receivership, creditor assignee, and bankruptcy 363 sales often closing within two weeks to two months from announcement, timely access to the available opportunities is critical for sellers and prospective buyers alike. 

For those wondering where to find information on these kinds of deals, THE DAILY DAC is the place to go.  The DAILY DAC capitalizes on everyone's need for timely information in this market by obsessively searching daily for opportunities nationwide in distressed M&A and commercial real estate offerings and in public auctions (whether out-of-court or pursuant to court order) and then posting them online in a searchable database for subscribers.  Information is also collected and distributed twice weekly by email.  The $500 annual subscription, however, is probably the best bargain you'll ever find at that site as it will pay for itself in less than one to two hours of professional or paraprofessional time.  A free trial subscription is available (and you don't have to mention you read it here to get it).

With the encouragement and support of a strong advisory board (featuring well-known names in the distressed world), the website launched on May 3 of this year.  Here is a Q&A I asked THE DAILY DAC's co-founder, Kristin Weber, to write for those wanting to learn a bit more about the site.

Thanks for reading.

[PS:  For the record, I neither received nor was offered a subscription or other rights for promoting THE DAILY DAC.  I have met the co-founders, discussed the site with them at length, offered some suggestions for improvement, reviewed the site's content and goals with a Chicago-based advisory board member, and--in the end--believe it provides a valuable service in an underserved niche.]

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Thursday, August 25, 2011

Bankruptcy Tweets for August 2011 - Part II

All caught up...  Below are my next 54 bankruptcy case tweets of August 2011 and 8 other tweets of general interest since my last post of August 24.  RSS Feeds are also available.  All my twitter posts are here (twitter) or here (blog).

The chart from a post entitled The Brand New Scariest Jobs Chart Ever is the "Money Game Chart of the Day" for 8/5/11. 

Bankruptcy Cases and Topics

  • B-SDNY in Dreier case vs. Wachov reviews law re propriety of collapsing transactions in analyzing fraudulent tsf issues. t.co/NwIS0E9
  • B-SDNY agrees that pltf only req'd to plead fraudulent intent of transferor under NY intentional fraudulent tsf law. t.co/NwIS0E9
  • B-SDNY: NY Law of "fair consideration" in Ponzi scheme requires tsfee act in good faith & shouldnt have known of Ponzi. t.co/NwIS0E9
  • B-SDNY: Having reason to question Dreier's honesty/acctg of funds, isn't equiv. to actual or constr knowledge of Ponzi. t.co/NwIS0E9
  • B-SDNY dismisses fraudulent tsf & preference actions vs Wachovia in Dreier Ponzi under FRCP 12(b)(6) w/leave to replead. t.co/NwIS0E9
  • B-SDNY: Substantially contemp. for pref. defense is case-by-case, but 3 day perfection delay is virtually simultaneous. t.co/NwIS0E9
  • B-SDNY-Foreign Rep seeking emails only got ex parte relief in UK, but no ex parte ch 15 relief here as ag. publ. policy.  t.co/NgwYn1E
  • B-CT looks to Black's Dict. & sees no "scheme" here to hinder creditors that justifies lifting stay per §362(d)(4)(A). t.co/4JfQijf
  • B-FL: Forfeited earnest money deposit for real estate contract subject to the lien of mortgage lender, not UCC lender. t.co/Ok0sEZ6
  • B-KS: agree w/minority that §1409(b) venue limits dont apply to avoidance actions per plain meaning of "arising under. t.co/kRcvP0o
  • B-TX: Equitable tolling not apply to §549 claim where applic. depends on conduct of a 3d party and not the defendant's. t.co/FRKCcOy
  • D-NV: Bank didnt waive right to demand full payment & to immediately foreclose simply bec adeq. prot. order was entered. t.co/gPEfWnA
  • B-DC: Motions to remand or that Ct lacks subject matter JD are core proceedings that BK Ct can enter final orders on. t.co/f7CacUC
  • B-SDNY reminds that Cts generally won't modify loan agreements imposing default interest rates, esp for solvent debtor. t.co/Xu9j4j8
  • B-MD won't approve discl. st. for fatally flawed plan w/improper releases: "to do so would be an exercise in futility." t.co/sJl2Ciu
  • B-IL strikes $13.9M proof of claim not electronically filed by FL atty, who compounded his error w/several more. Ouch!  t.co/lG0aYb5
  • B-TN reminds that focus of reasonably equivalent value issue is on value received by the debtor not the transferee. t.co/jS6Nh2t
  • B-IL:Pltf in §523 case precluded by judicial estoppel from bringing fraud claims that weren't part of state ct. jdgmt. t.co/4mfCSsz
  • BK-MS wont enjoin LA Distr Ct from proceeding w/ nondebtor litigation absent explicit authority empowering Ct to do so. t.co/PHure47
  • SDNY: §502(d) is pers. disabil. of claimant-not claim attribute; it only attaches to "pure assignment" (vs. sold) claim. t.co/YLF7KYS
  • B-DE: D&O get defense costs bec. RICO, Avoidance, & "Covered Matters" actions are "Related Claims" under D&O Policy.  t.co/NAE8rKN
  • B-MA: 100% of FMV on a debtor's Schedule C "should be like catnip to a trustee," so failure to timely object is fatal. t.co/LrPUTsl
  • B-TX agrees that unsec. cr. can't get postpet. fees & costs-even if contract permits them-under ch 11 plan paying 100%. t.co/16ahzKw
  • 11th: Sov. Immun. shields FL DOR & VA DSS from claims for stay violations in trying to collect prepet. interest on DSO. t.co/Dr4uiyq
  • D-TX: ERISA plan insurer states valid claim for constructive trust on collected premium not turned over & swept by BOA. t.co/h93XpFO
  • D-KY cuts atty fees award to K&E for contract breach by 2/3; case not difficult and Ashland, KY local rates sufficient. t.co/2H8ej5R
  • B-SDNY applies 2d Cir Enron op. & holds that cash tsf to fin. inst. as agent for redemption meets §546(e) safe harbor. t.co/VmTMLnW
  • B-IL doubts §523(a)(2)(A) false pretenses claim can be sustained w/out proof of positive acts to further the deception. t.co/vF8krhw
  • B-AZ: Litigation dgs. owed to dbtr for atty fees arent limited by what dbtr actually paid attys as unsec cr. of estate. t.co/PIwOL09
  • B-SDNY extends time to complete defective service on corp (named officer not req'd); doesnt dismiss bec lim. pd had run.  t.co/t9XL988
  • B-MI permits UST's Rule 2004 exam ag. BofA re practice & procedure in filing claims for possible abuse of BK process. http://t.co/3dmkXdg
  • B-AL: Golf course subject to implied restrictive covenant to operate prohibits 363 sale free & clear of such covenant. t.co/O72CQfq
  • B-SC: Bona fide dispute exists under §363(f)(4) if there's an obj. basis for disputing validity of asserted interest. t.co/qeKVel0
  • B-TX: Cplt for turnover of disputed debt per §542 not dismissed per FRCP 12(b)(6) unless recovery not available at all. t.co/AlL61KT
  • B-TX reviews separate doctrines of abstention/remand/removal & procedural devices of "mand. remand" & "mand. removal." t.co/AlL61KT
  • B-IL: Filing an Objection to Discharge is a complaint that-while deficient in form-was timely filed & could be amended. http://t.co/c05eW4h
  • D-CO: LLC member lacks standing to appeal a Court order for relief granting an involuntary petition. t.co/Lp3a7Id
  • D-CO acknowledges validity of provision in LLC operating agr. prohibiting management from filing a bankruptcy petition. t.co/Lp3a7Id
  • B-IL acknowledges that Twiqbal standards lessened when individual info of Def.'s role uniquely w/in Def.'s knowledge. http://t.co/ekrxyst
  • B-IL acknowledges that Twiqbal standards lessened in BK where necessary information is 2d hand & records in disarray.  t.co/ekrxyst
  • B-TX reviews scope/extent of stay applicable to property owners assn dbtr re common area / assessments / rents / dues / fees. t.co/FA0NUIg
  • B-DE dismisses aiding & abetting breach of duty/conspiracy claims vs ttee's agents for mismanaging value of I/O strips. t.co/iAJZ6fM
  • B-MD denies all fees to conflicted attys who rep'ed dbtr & simultan. rep'ed largest creditors in unrelated st. ct case. http://t.co/40hf6v4
  • 5th amends remand ruling to permit partial recovery on $29.7 admin claim if nec. to avoid equitable mootness concerns. t.co/40hf6v4
  • B-TN reviews case split & adopts narrower view that absolute priority rule still applies in individual chapter 11 case. t.co/9XvfJV2
  • B-SDNY: To get prepet. prejdgmt interest on P/C in BK, NYCPLR requires "sum awarded" by judgment, verdict or decision. t.co/jcdW8lX
  • 2d Cir: Use of the "Net Investment Method" by Madoff Trustee for calculating the "net equity" of customers was proper. t.co/7LmswrU
  • 2d Cir: Madoff Trustee not obligated to step into defrauder's shoes or treat customer statements as reality. t.co/7LmswrU
  • 2d Cir: SIPA doesnt prescribe a single way of viewing "net equity" in the myriad situations types of SIPA liquidations. t.co/7LmswrU
  • 2d Cir, in rejecting "Last Statement Method," doesn't hold that this way of calculating "net equity" is impermissible. t.co/7LmswrU
  • 7th: Unless buyer particip. in alleged fraud, rescinding 363 sale not approp. on alleged SH fraud in joining invol pet. t.co/tk5D9YG
  • 5th compares its "practical," "less stringent" std re "finality" in BK appeals w/ "rigid rule of finality" of 2d Cir. t.co/6aA5cnm
  • 5th Cir distinguishes 3d Cir break-up fee cases requiring proof per §503(b) of necessity to "preserve value of estate." t.co/6aA5cnm
  • 5th affirms break-up fee per §363(b) stds-not §503(b)-where order was issued before bidders incurred due dilig. fees. t.co/6aA5cnm

Topics of General Interest

  • Good 11 yr old Texas Monthly profile re "It's Rick Perry's Party Now" A profile of the latest GOP pres. candidate. t.co/uLTEQx7
  • Reports from inside :"there was 'nothing but shooting and sounds of explosions, no water, no electricity.'"  t.co/acHNWY8
  • Now this is hardball politics! I still prefer the more captivating story, however unlikely, that Mossad poisoned him. t.co/gxKVYlw
  • Read Judge Posner's quick take on the London riots. RT : Becker-Posner Blog: The English Riots—Posner. t.co/zvJxJse

Thanks for reading!

© Steve Jakubowski 2011

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Wednesday, August 24, 2011

Bankruptcy Tweets for August 2011 - Part I

Still catching up...  Below are my first 24 bankruptcy case tweets of August 2011 and one other tweet of general interest since my last post of August 21.  RSS Feeds are also available.  All my twitter posts are here (twitter) or here (blog).

The chart from a post entitled We Are Japan, Part #054903512 is the "Money Game Chart of the Day" for 8/16/11.  

Bankruptcy Cases and Topics

  • 10th says BAP lacked jurisdiction to review appeal of order for relief entered by DE BK Ct AFTER eff. date of venue tsf. t.co/4v4LTHe
  • 5th: Plan adequately preserved Avoidance Actions even though prospective individual defendants not identified therein. t.co/evY24sY
  • 5th: Ct may consult disclosure statement to see if claims retained & post-confirm. debtor has standing to bring them. t.co/evY24sY
  • D-PA considers but wont decide effect of Anti-Injunction Act on §105 inj. ag. enforcement of state jdgmt vs. nondebtor. t.co/NmqwlYq
  • D-PA wont hear mot. for stay pending appeal of BK order when stay not 1st sought in BK Ct even if a request was futile. t.co/NmqwlYq
  • 6th: BK trustee liable in official capacity for negligence, but personally only for wilful & delib breach of fiduc duty. t.co/ldOTeQ5
  • B-DE: Propriety of Highbridge DIP loan to LAD judged under entire fairness std, not bs jdgmt, bec of McCourt conflict. t.co/rmdIZLn
  • B-DE compares terms of proposed Highbridge & MLB DIP loans to Dodgers & finds MLB's substantially economically superior. t.co/rmdIZLn
  • B-TN explores law re requirements for seeking BK Ct leave to file suit in state ct v. BK trustee & denies motion to sue. t.co/5AI4RBm
  • B-PA: For cash coll. mot., income capitalization method preferred over DCF yield capz in valuing hotel in stable market. t.co/hTYqFoI
  • D-IL: Secured lender is real party in interest who shd be substituted in as Pltf in ch 7 debtor's action to collect A/R. t.co/AlL9puu
  • B-NE reviews 3 approaches developed re whether Trustee can waive individual's attorney-client privilege (yes/no/maybe). t.co/8TzDp4D
  • B-OH: Funds in IRS §457 deferred comp plan arent estate property per §541(b)(7)(A)(i)(II), so arent subject to DIP lien. t.co/R3i1197
  • 7th: Trademark license can't be "implied" where agreement doesn't say it is, and so rights can be sold in a 363 sale. t.co/PUOUuPR
  • 7th: Ok to substitute a party into litigation that has succeeded to the interest of the original party, even on appeal. t.co/PUOUuPR
  • 7th: Order not literally final is appealable if only "ministerial" ruling by the lower court is reqd to make it final. t.co/PUOUuPR
  • 7th: Universal rule-Trademark licenses aren't assignable in or out of BK absent expressly authorization in agreement. t.co/PUOUuPR
  • 7th: Service agreement isn't a true trademark sublicense and so is assignable in a 363 sale w/out consent of nondebtor. t.co/PUOUuPR
  • B-TX reviews §502(j) & FRBP 9024/FRCP 60(b) interplay when cr. doesnt answer claims obj. & order entered w/out hearing. t.co/n2cH530
  • B-TX reviews interpretations of 5th Cir "specific and unequivocal" lang re if reorg debtor has standing to sue on claim. t.co/8xzecGD
  • B-TX: Listing causes of action in Plan by code section is "specific & unequivocal" enough for standing to sue on claim. t.co/8xzecGD
  • B-TX: Reference to Code Ch 5 & §§ 544/547/548/549/550/551 is "specific and unequivocal" to retain §542 turnover claim. t.co/8xzecGD
  • B-SDNY: Contract exclusion for conseq dgs for lost profits etc too ambig. to bar "gen dgs" claim for lost profits on SJ. http://t.co/spsYrYG
  • 9th: BK dbtr wanting to equitably subordinate claim of another BK dbtr must seek relief from stay in other dbtr's case. t.co/e6C9Qb9

Topics of General Interest

  • 300,000 Israelis protest rising prices (equivalent to about 20 million Americans). Imagine ##s if it wasn't the Sabbath! t.co/DcUSg6Q

Thanks for reading!

© Steve Jakubowski 2011

 

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Sunday, August 21, 2011

Bankruptcy Tweets for July 2011 - Part IV

Still catching up...  Below are my last 25 bankruptcy case tweets of July 2011 and one other tweet of general interest since my last post of August 20.  RSS Feeds are also available.  All my twitter posts are here.

The chart of What Stocks Typically Do After a 20% Correction is the "Money Game Chart of the Day" for 8/18/11 from a post entitled What Happens to Stocks If Profits Don't Collapse?

 Bankruptcy Cases and Topics

  • DC Cir: Creditors' tortious intf. cplt v. FDIC for misconduct in thrift sale was outside of FIRREA's jurisdictional bar. t.co/ESizhF2
  • B-NC dismisses counts ag. lender for equitable subordination bec of meager allegations of control & inequitable conduct. t.co/auBW36Q
  • D-TX disallows personal injury claim of party that does nothing to comply with ADR procedures in Pilgrims Pride case. t.co/MmtupL0
  • D-LA: Whether lease allegedly terminated prepet. was sold in 363 sale is core proceeding that shd be heard by the BK Ct. t.co/vlvVPun
  • D-AZ: Make-whole provision on prepayment that's a reas. forecast of harm for future breach isn't unenforceable penalty. t.co/WDIz9zY
  • D-CA denies FDIC-R motion for mandatory withdrawal of reference of dispute w/ Indymac BK trustee re rts to tax refund. t.co/He0Uty3
  • B-NJ reviews Circuit split & differing standards re whether a confirmed plan has extinguished a prepetition lien. t.co/xUH5NOF
  • B-NEB: Agreement's 10% purchase option (equaling 9% of total lease payments) is nominal, so it isn't a true lease. t.co/m46aqyV
  • B-PA: Dbtr's active concealment of prepet transfers warrants equitable tolling to allow Ttee to amend cplt to add tsfs. t.co/JTza061
  • B-PR: Failure to pay postpet. taxes is "cause" for dismissal per 1112(b)(4)(I) & no "unusual circs." warrant otherwise. t.co/5AyASXK
  • B-DE: Recharacterization cplt .survives Twiqbal; 7 factors favor rechar. as equity, 3 favor debt, and 2 favor neither. t.co/Xuh4Udc
  • D-FL excludes testimony per Daubert of accounting expert who tries to apply AICPA auditing stds. to non-auditing work. t.co/aoIrzS1
  • D-MN:Circuits are split re right to jury trial on liability/dgs once debt found nondischargeable, but waiver found here. t.co/mcTuKpP
  • B-NC: If UCC not found using Sec/State's "standard search logic" then name error fatal to effective financing statement. t.co/s7ngRvn
  • B-NH: Competitor buying claim for standing to offer competing plan & not just block Dbtr plan isn't acting in bad faith. t.co/8iB85oT
  • B-NH: Advances of balance sheet neutral debt and waivers of admin/priority claims aren't new value to support a plan. t.co/8iB85oT
  • MD-AL reminds that a suit for violation of § 524 discharge injunction can be brought only as a contempt action. t.co/xjACL5W
  • 7th-Posner-reviews stds of appellate nonreview of remand of case removed under §1452, incl for lack of supplemental JD. t.co/y0f2ugG
  • 7th assumes w/out deciding that BK Cts can exercise supplemental jurisdiction over state law claims, but why would they? t.co/y0f2ugG
  • B-MS cites to Collier in reversing order appointing patient care ombudsman bec doc's med care monitored by Medical Ctr. t.co/yiO9Pmg
  • B-DC: Violation of § 542(b) by failing to pay debt or turnover deposits to Dbtr can't be a basis for a contempt finding. t.co/xazWp1A
  • 9th affirms long Markell op. re subrogation; agrees that partner/co-venturer isn't surety entitled §509(a) subrogation. t.co/GtytNMS
  • 9th disagrees with Markell op. that loan discharged via foreclosure wasn't actually paid by subrogors under §509(a). t.co/GtytNMS
  • B-NJ reviews 3d-2010 op. re Rooker-Feldman reqts; finds R-F applies to state foreclosure jdgmts even if interlocutory. t.co/gkhoMeM
  • 5th: Injunction ag. Wells F. for filing claim replete with errors improperly aimed at other cases and beyond Ct. reach. t.co/7oupbo2

 Topics of General Interest 

  • Wise & witty speech thrown by Justice Ginsburg in Cooperstown on the opening day of the Hall of Fame Induction weekend. t.co/aHGG8Rv

  Thanks for reading!

© Steve Jakubowski 2011

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Saturday, August 20, 2011

Bankruptcy Tweets for July 2011 - Part III

Catching up on things.  Lots of tweets, but no blog posts. Below are more twitter posts since my last post of July 17 with 50 BK cases and commentary and 6 other items of general interest.  RSS Feeds are also available.  All my twitter posts are here.

With hurricane season upon us, I thought some would like the inset infographic, taken from an 8/2/11 post entitled Rock me like a hurricane.

Bankruptcy Cases and Topics

  • 10th BAP bars review of order under "law of the case" doctrine bec. 3 narrow grounds for departing from rule are absent. http://t.co/7knf9h6
  • D-TX: Dbtr's deposit to secure performance obligs didnt create an express, resulting or constr. trust favoring creditor. http://t.co/Tqc5iIu
  • D-MA: Fee-only Ch 13 plans designed mainly to pay the filing atty's fees over time per se violates the good faith reqt. http://t.co/pPU96Wi
  • 11th-1st Impression: Order affirming BK Ct merits decision was final & appealable despite undecided issue of atty fees. t.co/RF9Qqjw
  • 9th: Estate prop. revests in Ch 13 dbtr at confirm., so postpet. taxes can attach to revested prop. & not violate stay. t.co/KCl63eO
  • B-NEB: Restrictive covenants requiring ch 11 developer to build certain prefab units in exchange for $1M not executory. t.co/P2hQYbA
  • B-MN: Snapshot in Polaroid preference case (that incl. trustee counterclaim) of constit convolutions caused by Marshall. t.co/BEt2N52
  • ED-WI reviews law in 7th Circuit on the requirement that a purchaser act in "good faith" in the context of §363 sales. t.co/drmlnyn
  • ED-WI: Issue of good faith can be considered at the motion to dismiss stage in an unstayed appeal of a §363 asset sale. t.co/drmlnyn
  • B-MO: Stay extended to all Def. in B/D arbitration actions on "control person" issue only based on identity of interest. t.co/D4pfYWI
  • D-LA: §362's automatic stay doesn't apply to actions against a nondebtor corporation that is wholly owned by the debtor. t.co/pFFjPPW
  • 7th Cir. again defers foraging into the debate whether actions filed in violation of the stay are void or just voidable. t.co/7ixmIx8
  • 7th reminds that §108(c) & IL law provide basis to proceed vs. debtor on claims that become time-barred during the stay. t.co/7ixmIx8
  • 7th invokes judicial estoppel beyond normal uses to stop gamesmanship in pursuing contradictory positions in 7th & D-Ct. t.co/7ixmIx8
  • 7th reviews certifying for appeal as a final jdgmt a dismissal of claims vs. nondbtr despite pending stay vs. BK co-def. t.co/7ixmIx8
  • B-NH: In pari delicto defense doesn't apply to avoidance actions brought under Chapter 5 of the Bankruptcy Code. t.co/0PqhsW4
  • B-DE wont dismiss cplt to recharacterize debt where contribs. were pro rata / subord unsec. & int. deferred / below-mkt. t.co/alSCfte
  • B-FL: Atty depositing postdated retainer checks postpet. violates stay & creates impermissible adverse rel. w/client. t.co/fcc78sD
  • D-IN: No abuse of discr. in sua sponte dismissal of adv. cplt w/out much notice or opport. to cure failure to prosecute. t.co/xtAB7gD
  • 8th BAP: Trustee didn't meet burden that benefit to estate from property sale outweighed harm to co-owner under §363(h). t.co/gLPYNSz
  • 7th excludes municipal utility charges from stay exceptions of §§362(b)(3),(9),(18) bec. not a tax or spec. assessment. t.co/Kkc8SVq
  • B-IL: Non-waiver clause in LLC operating agreement limits the risk that the waiver doctrine can be applied against you. t.co/UUxZWZM
  • D-OH: Using "10b size category in assess[ing] small stock premium for [valuation] calculations" beats Daubert challenge. http://t.co/AmIXSlf
  • BK-TX reviews tension between amending pleading under FRCP 9(b) & FRBP 4004(a)'s mandatory deadline for nondisch. cplts. t.co/52bTQ66
  • 6th BAP remands on BK order to disgorg prepet. retainer in converted ch 11 case to determine if valid atty lien existed. t.co/Is6ypWx
  • BK-NC: CIT properly exercised recoupment right postpetition to min. commission fee payable under factoring agreement. t.co/AuZbPvV
  • B-NH: Ttee's fraudulent transfer cplt survives dismissal w/out identifying actual creditor providing § 544(b) standing. t.co/EEgsgfd
  • D-CA wont preclude appeal of trustee's settlement transferring litigation claims to 3d party under eq mootness doctrine. t.co/JEKwv69
  • D-CA won't apply §363(m) mootness to an order approving a settlement even if the order accomplishes nearly same result. t.co/JEKwv69
  • B-DE: Faltering co. defense to WARN Act inapplic. bec notices didnt provide suff. facts justifying lesser notice period. t.co/KVJFvnE
  • B-DE concludes in class action BK adversary that grandparent mgmt co. is co-liable w/BK debtor for WARN act violations. t.co/KVJFvnE
  • B-DE disagrees with per se rule that grandparent corps can't share common ownership of distant indirect subsidiaries. t.co/KVJFvnE
  • B-SDNY notes its disapproval of plan releases by BK estates when the requisite supporting due diligence hadnt been done. t.co/DBE3x51
  • B-SDNY reflects on its disapproval of releases by 3d parties when they don't satisfy 2d Cir.'s Metromedia requirements. t.co/DBE3x51
  • B-SDNY, post-Marshall, requires change to term of confirmed plan requiring claims ag. ex-D&Os be brought in BK Ct only. t.co/DBE3x51
  • B-SDNY notes as an aside that it has sustained objections to broad plan releases for former D&Os in 4 identified areas. t.co/DBE3x51
  • B-SC interprets when "cause" exists under §363(k) to grant or deny a disputed lender the right to credit bid in a sale. http://t.co/zXNGkks
  • B-CA: Ch. 20 Debtors still can't "permanently" strip off unsecured junior lien w/out either a discharge payment in full. t.co/OMMXo7G
  • B-OH: US Trustee can take 2004 exam re Wells Fargo's standing to file proof of claim in ch 13 case & re claim's validity. t.co/ImXj2Rl
  • D-MI reviews how interrelated creditors/claims can be before they are ineligible to serve as separate §303 petitioners. t.co/C6Ccmf6
  • B-SDNY thoroughly reviews competing interests of FRCP 15(a) & 16(b): freely amend pleadings or hold to scheduling order. t.co/UQIWdET
  • B-SDNY:Waiting 4 yrs to amend affirm def to add §546(e) safe harbor, thinking it can be raised at leisure, is offensive t.co/UQIWdET
  • B-TN: Ponzi scheme fraudulent tsf. case law is clear: investors may keep their returned principal, but not any profits. http://t.co/9ETm6Xd
  • B-DE: Recharacterization cplt .survives Twiqbal; 7 factors favor rechar. as equity, 3 favor debt, and 2 favor neither. t.co/Xuh4Udc
  • D-FL excludes testimony per Daubert of accounting expert who tries to apply AICPA auditing stds. to non-auditing work. t.co/aoIrzS1
  • D-MN: Circuits are split re right to jury trial on liability/dgs once debt found nondischargeable, but waiver found here. t.co/mcTuKpP
  • Good review of brief seeking JD-based dismissal of pref cplt based on reading of Marshall/Langenkamp/Granfinanciera. bit.ly/qk5zzu
  • B-MT approves 9019 stip for 1st Lender's creative financing of ch 7 Ttee's continuing hotel ops. to preserve sale value. t.co/OuRtVMO
  • B-AL denies plan provision giving plan cmmttee right to bring claim, financed by estate, that plan trustee won't pursue. t.co/Z9MAf0x

 Topics of General Interest

  • Extremely sad news re ex-K&E BK partner (and my first boss/mentor). Our heartfelt prayers to Ted & his family. t.co/4iACSMb
  • And here I thought I overate yesterday! Guess it's all relative. t.co/lFNtSEu
  • The Head Of The World's Biggest Hedge Fund Sees "Economic Collapse" Due To Money Printing By Early 2013
  • 22000 digitized photos (1898-46) of Jerusalem & ME donated to Lib. of Cong by members of the Amer. Colony in Jerusalem. t.co/WzOJ04e

 Thanks for reading!

© Steve Jakubowski 2011

 

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Sunday, July 17, 2011

Bankruptcy Tweets for July 2011 - Part II

Below are more twitter posts since my last post of July 4 with 47 BK cases and commentary and 15 other items of general interest.  RSS Feeds are also available.  All my twitter posts are here.The insert graphic contains a recent chart from Nate's Market Analysis Blog entitled Greece is the Word.

*               *               *               *

Bankruptcy Cases and Topics

  • Bob Eisenbach post with links to Judge Novack's update to Judge Newsome's bankruptcy research binder (thru BR vol 436). http://t.co/8sbesVh
  • B-OH: Robins "unusual circ" test to extend stay to nondbtrs relevant only re if irrep harm exists warranting prelim inj. http://t.co/QGA5izc
  • BK-HI: 2 year limitations period of §548 is a substantive element of the trustee's claim that can't be equitably tolled. http://t.co/Wcetd0d
  • BK-HI: Limitations pd. for §544 avoidance action runs from when last cr. cd reas. have discov. the fraudulent transfer. http://t.co/Wcetd0d
  • B-PA: Entry of no asset report divests BK Ct of "related to" jurisdiction, but effect on §523 proceedings is unclear. http://t.co/CCG219b
  • B-KS-Above median income Dbtr on BK filing, whose income later is under, CAN'T modify plan to reduce applic. cmmtmt. pd. http://t.co/ipBocpP
  • CWT's Mintz, NP's Berman, & SASMF's Butler provide in-depth analysis on municipal BKs & the inadequacies of Chapter 9.  http://t.co/MLtgKyN
  • Read "Treatment of Interest on Nondischargeable Debts" by Nicholas Ortiz, citing 1st Cir case that interest does accrue. http://t.co/EpUyakW
  • 4th-Severance comp earned post-firing entirely payable per §507(a)(4); no proration to amt attrib to 180 days prefiling. http://t.co/NgQsaA8
  • D-MD: 363 Sale limits successor's environ liab per debtor's 1997 EPA Consent Decree to post-363 sale hazardous release. http://t.co/ASjLJy1
  • 5th grants direct appeal of op. denying stdg of postconfirm trust bec. plan didnt specifically/unequiv. preserve claim. http://t.co/pMrJz9V
  • D-TX won't stay case after completion of fact discovery pending 5th Cir ruling on postconfirm. standing in MPF Holdings. http://t.co/VTrxMIF
  • B-PA annuls stay where foreclosure sale occurred w/in minutes after (& w/out notice of) BK filing & no reorg. possible. http://t.co/4J9UL65
  • B-NE lifts stay to all Insurer's prepet DJ action over interp. of prof. liab. policy to continue in NY instead of BK Ct. http://t.co/fWBqiwm
  • B-KS: Conting. reversionary int in prepet bond to stay jdgmt worth 0 bec bond was forfeited postpet after jdgmt was final. http://t.co/Kh1wzpA
  • B-IL: Shareholder deriv. claim not discharged per §523(a)(4) but amt reserved pending review of Stern v Marshall effect. http://t.co/BpQVBR9
  • B-MA: HSBC acquired mortgage on debtors' property by valid assignment from MERS & so is entitled to stay relief. http://t.co/5qfmzeW
  • B-PA: §105 injunction granted per Monroe Well test bec "unusual circumstances" exist to restrain actions ag non-debtors. http://t.co/hAETexu
  • B-PA: Most courts consider §105 as the authority to fashion injunctive relief restraining prosecution of 3d-party litig. http://t.co/hAETexu
  • B-EDNY: Well cited opinion allows bank's claim for default interest but denies make-whole claim for prepayment penalty. http://t.co/NmbKX46
  • B-MT: Legit. justification exists for separate plan classification based on anticipated future aid of crs. in one class. http://t.co/zJZXuj8
  • B-IL: Pre-Stern, 7th Cir allowed BK Ct to fix nondisch. debt amt., but constitutional authority to do so not clear now. http://t.co/BpQVBR9
  • 3d-Obligations of umbrella insurer exclude duty to defend & not otherwise triggered until underlying policies exhausted. http://t.co/IThdzzc
  • B-FL: Conclusory constr. fr. tsf charge of not being made for reas. equiv. value dismissed absent more re nature of tsf. http://t.co/j2tWCXp
  • B-DE: FRCP 9(b) reqts relaxed & interpreted liberally when BK Trustee asserts fraudulent transfer/breach of duty claims. http://t.co/2BUowz2
  • B-OR: §547(a)(2)'s exclusion of substitute obligations from "new value" excludes forbearance from new value defense. http://t.co/qvSmuc7
  • BK-NM reviews preference law's "ordinary course of business" defense as applied to "first-time transactions." http://t.co/J3Zyrsf
  • B-DE: Not def's fraudulent intent that must be pled w/particularity per FRCP 9(b) but circumstances constituting fraud. http://t.co/2BUowz2
  • B-CO rejects investor argument they had no valid contract to purchase stock & thus had unsecured debt not w/in §510(b). http://t.co/RvgLduA
  • B-CO reviews policies behind & broad interp of §510(b) mandatory subord. of claims from purchase & sale of securities. http://t.co/RvgLduA
  • B-FL: Trustee's actual fraudulent transfer claims survive dismissal by plausibly asserting tsf to further Ponzi scheme. http://t.co/j2tWCXp
  • B-FL reviews Ransom, Lanning & earlier cases in overruling UST obj. to including op. exp. for 3 cars in means test calc. http://t.co/SEGMbcI
  • B-CO: Statutory cap of §502(b)(6)(A) equally applies to claims against guarantors of leases that are in bankruptcy. http://t.co/fNbqPw7
  • BK-DE dismisses pref. complaint that doesnt give Def. adequate notice to ascertain which tsfs are at issue is dismissed. http://t.co/ESw1vd3
  • B-IL: Pre-Stern, 7th Cir allowed BK Ct to fix nondisch. debt amt., but constitutional authority to do so not clear now. http://t.co/BpQVBR9
  • D-IL imposes §1927 ag, Ch 7 Trustee's atty not for crummy legal mal case v. Mayer Brown but for unprof. conduct in depo. http://t.co/P5jWWsT
  • B-NJ denies postconfirm trustee mot. to disgorge fees of admin. insolv. estate bec consent order award was final award. http://t.co/PDRHRKE
  • D-CA affirms BK Ct's expunging of class claim for unpaid wages against Ch 13 owners of parking lots. http://t.co/mnAfii7
  • D-CA reviews lack of policy factors supporting class claims in BK, incl. ease of filing claims & efficiency of process. http://t.co/mnAfii7
  • D-CA: Failure of class claimants to file Rule 9014 motion for application of Rule 23 is dispositive in favor of denial. http://t.co/mnAfii7
  • BK-AL: 363 sale of golf course prop. not free & clear of implied restrictive covenant for use of prop.as a golf course. http://t.co/AlPmMSd
  • B-MI approves BK settlement & provides extensive review (after 65 trial days) of the history behind soft body armor. http://t.co/Sr9XmWb
  • B-FL: Defendant's failure to produce expert to refute Trustee's insolvency expert dooms its fraudulent transfer defense. http://t.co/aNh8bLB
  • B-DE: Cplt dismissed per Twiqbal that sets forth only conclusory allegations parroting Section 547's statutory language. http://t.co/TtUQra0
  • B-DE: Preference cplt doesn't require attached copies of invoices, bills, canceled checks etc., to satisfy Twiqbal stds. http://t.co/TtUQra0
  • B-DE: To satisfy Twiqbal in preference cplt, details of antecedent debt req'd & merely reciting §547 stds insufficient. http://t.co/TtUQra0
  • B-DE: Twiqbal in §547 cplt requires evid. of preexisting dbtr/cr. rel. (like contract details & goods/servs. provided). http://t.co/TtUQra0

 Topics of General Interest

  • Excellent interview by David Lat of Jeh Johnson, ex-Paul Weiss partner, & now General Counsel of the Defense Department. http://t.co/vEKbyUX
  • The future of jury trials? Watch Michigan's experiment in adopting rules to significantly enhance juror involvement. http://t.co/Bz7t5uD
  • RT @DouglasMintz: Good piece on the next financial crisis (whenever it should arise. http://t.co/a1pe2cf
  • Casey Anthony defense's use of social media to refine its theories of the case as the trial progressed discussed here: http://t.co/GVagBrk
  • WWII in photos: A continuing 20 part photo-narrative retrospective sponsored by The Atlantic: http://t.co/rS0hW7b

 Thanks for reading!

© Steve Jakubowski 2011

 

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