Monthly Archives: October 2013

Post-Petition Interest and Subordination: The Rule of Explicitness Lives (and Drafting Matters)

Silver Point Finance, LLC v. Deutsche Bank Trust Company Americas (In re K-V Discovery Solutions, Inc.), 496 B.R. 330 (Bankr. S.D.N.Y. 2013) – Based on a subordination agreement, senior secured noteholders contended that they were entitled to receive payment of post-petition … Continue reading

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Leases: The Debtor Tenant’s Right To “Assume” and To “Assign” Does Not Mean To “Assume and Assign”

In re Eastman Kodak Co., 495 B.R. 618 (Bankr. S.D.N.Y. 2013) – The debtor assumed a ground lease prior to the deadline for assumption or rejection of non-residential real property leases.  It later sought to assign the lease in connection with … Continue reading

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Bankruptcy Sales: “Free and Clear” Of An “Interest” May Even Extend To Blocking A Successor Unemployment Insurance Experience Rating

In re USA United Fleet Inc., 496 B.R. 79 (Bankr. E.D.N.Y. 2013) – A state used the debtors’ prepetition unemployment insurance experience rating to determine the unemployment insurance tax liability of a buyer of the debtors’ assets.  The buyer objected that … Continue reading

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Bankruptcy Sales: Buyer Beware, As-Is Means As-Is, and So On

Baldiga v. C.A. Acquisition Corp. (In re Cyphermint, Inc.), 496 B.R. 49 (Bankr. D. Mass. 2013) – A chapter 7 bankruptcy trustee brought an adversary proceeding against a buyer and its designated purchaser for breach of contract and civil contempt.  The defendants … Continue reading

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Original Issue Discount Claim: Maybe It’s Allowed, And Maybe It’s Not

Official Comm. of Unsecured Creditors v. UMB Bank, N.A. (In re Residential Capital, LLC), 495 B.R. 250 (Bankr. S.D. N.Y. 2013) – An unsecured creditors committee brought an action against an indenture trustee and collateral agent (a) seeking to recharacterize a … Continue reading

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Foreclosure: Is A National Bank Authorized to Foreclose Non-Judicially In Arkansas?

JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 1010 (8th Cir. 2013) – The 8th Circuit considered the issue of whether a national bank is “authorized to do business” in Arkansas, as required by a state statute in order to proceed … Continue reading

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Financial Institution Payments: When Is A Preference Not A Preference?

Official Comm. of Unsecured Creditors of Quebecor World (USA) Inc. v. American United Life Ins. Co. (In re Quebecor World (USA) Inc.), 719 F.3d 94 (2d Cir. 2013) – Shortly before filing bankruptcy, the debtor made a ~$376 million payment to a … Continue reading

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