Collecting A Prepayment Premium: Plain Language May Not Be So Plain

Bank of New York Mellon v. GC Merchandise Mart, L.L.C. (In re Denver Merchandise Mart, Inc.), 740 F.3d 1052 (5th Cir. 2014)

A lender sought to recover a prepayment premium of $1.8 million after acceleration of a note due to the borrower’s payment default. After the bankruptcy court and district court disallowed the lender’s claim, it appealed to the 5th Circuit. Continue reading

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Administrative Expenses: Are Electrons Movable So That Electricity Is a Good?

In re NE Opco, Inc., 501 B.R. 233 (Bankr. D. Del. 2013)

A municipal utility sought an administrative expense payment for the electricity and natural gas that it provided to the debtors during the 20 days prior to bankruptcy. The issue turned on whether electricity and natural gas constitute “goods.” Continue reading

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Leases: The Special Case of a Governmental Landlord

In re Aikens, 503 B.R. 603 (Bankr. S.D.N.Y. 2014)

A city housing authority sought a bankruptcy court order confirming that the automatic stay did not prevent it from continuing eviction proceedings where it had obtained a judgment of possession against a tenant before she filed bankruptcy. In response, the debtor contended that the automatic stay was still applicable, and further, she was not required to make a deposit that would normally be required as a condition of continued stay relief. Continue reading

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Recording Defects: A Continuing Theme – Trivial Mistakes May Not Be So Trivial

Gordon v. Wells Fargo Bank, N.A. (In re Knight), 504 B.R. 668 (Bankr. N.D. Ga. 2014)

A chapter 7 trustee sought to avoid a lien on the debtor’s interest in property by exercising his “strong arm” powers as a bona fide purchaser of real estate. The issue turned on whether the security deed had been properly witnessed, and thus whether it provided constructive notice of the lien to a bona fide purchaser under applicable state law. Continue reading

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Proof Of Claim: Get Too Aggressive And Your Proof May Go Poof

In re Princeton Office Park, L.P., 504 B.R. 382 (Bankr. D. N.J. 2014)

Initially the bankruptcy court allowed the claim of a tax sale certificate purchaser. However, on reconsideration the court held that the purchaser forfeited the entire claim and related lien. Continue reading

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Dragnet Clauses: Sometimes They Don’t Work as Hoped, and Sometimes They Do

In re Presser, 504 B.R. 452 (Bankr. S.D. Ohio 2014)

A judgment lien creditor objected to a joint debtors’ chapter 11 plan of reorganization based on a dispute with a mortgagee about whether its mortgages secured guaranty obligations of one of the debtors. This issue determined who should receive payments under the plan. Continue reading

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Potential Sale of Jointly Owned Property: Practicable Partition Is Somewhere Between Possible and Practical

Higgason v. Brown (In re Brown), 506 B.R. 446 (Bankr. E.D. Ky. 2014)

A chapter 7 debtor owned real estate jointly with three other people as tenants in common. The chapter 7 trustee sought court approval to sell the entire property, as opposed to just the debtor’s tenant in common interest. Continue reading

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