Mortgage Recording: What Happens When There Is An Extra “E”?

Weiss v. JPMorgan Chase Bank, N.A. (In re Thibault), 518 B.R. 635 (Bankr. D. Mass. 2014) –

A chapter 7 trustee sought to avoid a mortgage using his “strong-arm” powers on the basis that it was not properly recorded because the spelling of the debtor’s last name in the mortgage was not the “correct” spelling. Continue reading

Posted in Financing, Real Estate | Tagged , , | Leave a comment

Mortgage Recording Requirements: Tiny Technical Defect Strikes Again

Rogan v. U.S. Bank, N.A. (In re Partin), 517 B.R. 770 (Bankr. E.D. Ky. 2014) –

A chapter 7 trustee sought to avoid mortgages on three properties using his “strong arm” powers, arguing that they were improperly recorded and thus did not provide constructive notice to a purchaser or lien creditor. Continue reading

Posted in Financing, Real Estate | Tagged , , | Leave a comment

Recorded Documents: Who Loses When A Document Is Not Properly Indexed?

Agin v. Dookhan (In re Hultin), 516 B.R. 190 (Bankr. D. Mass. 2014) –

A chapter 7 trustee sought to avoid a transfer of the debtor’s real property using his “strong arm” powers based on an argument that the deed conveying the property did not provide constructive notice since it was not properly indexed in the real estate records. Continue reading

Posted in Real Estate | Tagged , | Leave a comment

Leases: Avoid Unnecessary Headaches With Precise Drafting

Charter v. Kearney (In re Colen), 516 B.R. 618 (Bankr. D. Or. 2014) –

A chapter 7 trustee sued the tenants’ landlord to recover payment of a fee that he contended was illegal under state law.  The issue turned on whether a “move in” fee paid at the beginning of the lease term was illegal under a statutory provision applicable to residential leases. Continue reading

Posted in Real Estate | Tagged | Leave a comment

Bankruptcy Sales: It Is A Good Idea To Confirm You Are Acquiring Everything You Need Before You Close

Agri Star Meat & Poultry, LLC v. Nevel Properties Corp. (In re Nevel Properties Corp.), 765 F.3d 846 (8th Cir. 2014) –

The purchaser of assets from one bankruptcy debtor objected to the plan of reorganization filed by a related bankruptcy debtor because the plan did not recognize the purchaser’s rights in a deep water well pursuant to a lease between the two debtors.  The bankruptcy court determined that the buyer did not acquire any rights to the well, the district court affirmed, and the buyer appealed to the 8th Circuit. Continue reading

Posted in Bankruptcy Sales | Tagged , | Leave a comment

Sale Proceeds: Better Get the Carve-Out Right the First Time

In re Stacy’s, Inc., 508 B.R. 370 (Bankr. D. S.C. 2014) –

A debtor sold substantially all of its assets after negotiating with its primary secured creditor for carve-outs from the sale proceeds for administrative priority and general unsecured claims.  When the administrative claims turned out to be greater than anticipated, the debtor sought court approval to use additional proceeds to pay income tax and other claims. Continue reading

Posted in Bankruptcy Sales, Financing | Tagged , , , | Leave a comment

Loan to Own: A Potpourri of Bankruptcy Attacks

Colony Beach & Tennis Club Ass’n, Inc. v. Colony Lender, LLC (In re Colony Beach & Tennis Club, Inc.), 508 B.R. 468 (Bankr. M.D. Fla. 2014) –

Three affiliated debtors (RMI, CBTC and CBI) proposed a plan of reorganization that, among other things, required transfer of the collateral (interests in a tennis resort) of an objecting undersecured lender (Colony Lender) free and clear of its liens in exchange for either an unspecified payment or return of the collateral after one year.  The convoluted ownership structure of the resort and treatment of the lender’s claims gave rise to a variety of related questions. Continue reading

Posted in Financing, Real Estate | Tagged , , , | Leave a comment