It’s often hard to persuade a bankruptcy court to grant a motion for substantial contribution. Any attorney thinking about making a motion should first ask herself two questions. First, has my work benefitted both my client and other creditors? Second, did my work result in more than an incidental benefit to the bankruptcy estate? If the answer to either question is no, then the attorney should forget about making the motion. The time spent on it will be wasted, and the motion will be denied.
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Bankruptcy Update Blog provides current news and analysis of key bankruptcy cases and developments in US and cross-border matters. Patterson Belknap’s Business Reorganization and Creditors’ Rights attorneys represent creditors’ committees, trade creditors, indenture trustees, and bankruptcy trustees and examiners in US and international insolvency cases. Our team includes highly skilled and experienced attorneys who represent clients in some of the most complex cases in courts throughout the US and elsewhere.
We have previously blogged about Siegel v. Fitzgerald, the Supreme Court decision last June that invalidated the 2018 difference in fees between bankruptcy cases filed in Bankruptcy Administrator judicial districts and U.S. Trustee judicial districts. As we explained, the parties in that case disputed whether, if the fee difference were to be held unconstitutional, the appropriate remedy would be a refund for the debtors charged the higher fee or additional fees imposed on the debtors charged the lower fee. The Supreme Court did not resolve that question, leaving the question to be resolved on remand.
Another domino has fallen. Earlier this year, we wrote about the challenges facing the crypto industry that resulted in the bankruptcy filings of Three Arrows Capital, Celsius Network, and Voyager Digital. We noted that other crypto entities could also end up in chapter 11, and that prediction has proven correct.
The ramifications of uneven increases to fees in chapter 11 bankruptcies continue to ripple through federal courts.
A U.S. bankruptcy court recently denied chapter 15 recognition to a case in the Isle of Man (IOM). The court ruled that the foreign case was neither a foreign main proceeding nor a foreign non-main proceeding. Although the court found that the IOM proceeding was a “foreign proceeding,” it also held that the debtor’s center of main interests wasn’t in the IOM and the debtor didn't have an establishment there. In re Shimmin, No. 22-10039, 2022 LEXIS 2932 (Bankr. W.D. Okla. Oct. 14, 2022).
To encourage parties to transact with debtors in bankruptcy, the Bankruptcy Code in corporate bankruptcies provides highest priority to “administrative expenses,” which include “the actual, necessary costs and expenses of preserving the estate.” 11 U.S.C. § 503(b); id. § 507(a)(2). Section 365 of the Bankruptcy Code permits the assumption or rejection of any executory contract—a contract in which the parties have ongoing duties of performance to each other when a bankruptcy case is filed—and provides that if the debtor rejects the contract, such rejection is treated as a breach occurring “immediately before the date of the filing of the petition.” 11 U.S.C. § 365. Because section 365 treats liability from such a breach as arising pre-petition, it is not treated as an administrative expense and is usually a general unsecured claim. The combination of these provisions therefore raises a question: what happens if there is an ongoing executory contract which, during the bankruptcy case, potentially provides benefits to the estate, but then is rejected by the debtor? Does liability for breach in this circumstance have administrative priority? This question was addressed in Finance of America LLC v. Mortgage Winddown LLC (In re Ditech Holding Corp.), 21-cv-10038 (LAK), 2022 U.S. Dist. LEXIS 172793 (S.D.N.Y. Sept. 23, 2022).
On September 15, President Biden announced a tentative deal with unions representing tens of thousands of railroad workers that helped narrowly avoid a strike that threatened to devastate the country’s delicate supply chains that have been strained since the beginning of the pandemic. Now the country awaits the outcome of the union member votes (which we may not know until mid-November), but even if the members approve the deal, the retail sector will still face empty shelves, job vacancies and surging inflation.
A bankruptcy court ruled that a creditor didn’t need to seek derivative standing to sue a liquidating trustee. The creditor, himself a trustee of the debtor’s employee stock-option plan, had standing to sue without prior court permission because his suit wasn’t brought on behalf of the bankruptcy estate. In re Foods, Inc., Case No. 14-02689, Adv. Pro. No. 21-3022, 2022 Bankr. LEXIS 2331 (Bankr. S.D. Iowa Aug. 23, 2022).
The owners of an ambitious Hawaiian golf project in the Makaha Valley of Oahu said Aloha (hello) to new owners, and Aloha (goodbye) to old debt obligations.
In an adversary proceeding, the collective owners of the Makaha Valley Country Club, golf courses, surrounding undeveloped land, and other related assets (the “Owners”) avoided obligations undertaken in connection with a loan extension provided by Tianjin Dinghui Hongjun Equity Investment Partnership (the “Lenders”). The Bankruptcy Court for the District of Hawaii ruled that the extension was constructively fraudulent, and thus avoidable under Bankruptcy Code section 548.
It’s been a hard year for cryptocurrency. The values of most cryptocurrencies, including major coins such as Bitcoin and Ethereum, have continued to tumble. In fact, the price of one stablecoin, which is a form of cryptocurrency tied to another currency, commodity or financial instrument, de-pegged from its cryptocurrency token and entered into a downward spiral. Ultimately, the stablecoin and the crypto token it was pegged to collapsed, erasing $18 billion of value with it. In addition, one major cryptocurrency exchange platform recently warned investors that, in the event of bankruptcy, its users’ assets may be treated as property of the estate, which would leave users in the unfortunate position of being treated as unsecured creditors. This revelation caused that entity’s stock to plummet.
We have previously written about Siegel v. Fitzgerald, No. 21-441, the Supreme Court case considering the question of whether the 2018 difference in fees between Bankruptcy Administrator judicial districts and U.S. Trustee judicial districts was consistent with the Constitution’s uniformity requirement for bankruptcy laws. On June 5, the Supreme Court decided the case, ruling that the scheme violated the uniformity requirement, but remanding to the Fourth Circuit to consider the appropriate remedy.
Delaware Court Finds Texas’s Trust Fund Doctrine Lives, but Debtor's Fiduciary Claims Dead on Arrival
A Delaware bankruptcy court recently held that Texas’s “trust fund doctrine” remains applicable for companies that have not availed themselves of Texas’s formal dissolution process. Nonetheless, fiduciary claims by a chapter 7 debtor were dismissed because the debtor failed to assert such claims derivatively
The doctrine of equitable mootness is in the news again. The Supreme Court recently denied a cert. petition in a case where the petitioner wanted the doctrine ruled unconstitutional. KK-PB Financial LLC v. 160 Royal Palm LLC, Case No. 21-1197, 2021 WL 7247541 (petition), 2022 WL 1914118, (denying certiorari).
In the world of cryptocurrency, exchange platforms act as intermediaries allowing investors to buy and sell assets while making money through commissions and transaction fees. Any assets purchased may be held in either non-custodial or custodial wallets. If a customer chooses a custodial wallet, the platform holds and manages the assets through a private key, which is a string of characters that serves as a password. If a key is lost or forgotten, it may be impossible to recover, resulting in the permanent loss of the asset. In contrast, assets held in non-custodial wallets remain under the customer’s control with a private key.
A discharge in bankruptcy usually discharges a debtor from the debtor’s liabilities. Section 523 of the Bankruptcy Code, however, sets forth certain exceptions to this policy, including for “any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud. . . .” 11 U.S.C. § 523(a)(2)(A). (We have previously written about this provision in the context of statements respecting a debtor’s financial condition.) There is a split among the courts of appeal as to whether this provision applies only to a debtor who has some level of knowledge of the fraud, or whether the bar on discharge applies also when the debtor is liable only by imputation for a fraud committed by an agent or partner of the debtor. On May 2, the Supreme Court granted a petition for certiorari in Bartenwerfer v. Buckley, No. 21-908, a case presenting this question.
The U.S. Bankruptcy Court in Manhattan recently reminded us why Delaware choice-of-law provisions are so popular in limited partnership and other agreements.
The Fifth Circuit recently dismissed an appeal of a confirmation order as equitably moot. The decision was based on three key factors: the appellant hadn’t obtained a stay pending appeal, the plan had been substantially consummated, and practical relief couldn’t be fashioned if the plan was unwound. Talarico v. Ultra Petro. Corp. (In re Ultra Petro. Corp.), Case No. 21-20049, 2022 U.S. App. LEXIS 8941 (5th Cir. Apr. 1, 2022).
As a result of Purdue Pharma’s proposed plan of reorganization, and the ongoing opioid epidemic that continues to grip the nation, the debate over non-consensual third-party releases has gone mainstream despite being a popular tool for debtors for decades.
Article I, Section 8 of the United States Constitution gives Congress the power to “establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” While Congress has general authority to establish a bankruptcy system, bankruptcy laws must be “uniform.” But not every aspect of the bankruptcy system is the same across every judicial district. For instance, while most judicial districts have United States Trustees, which are funded by a special fee charged to debtors, the judicial districts of Alabama and North Carolina instead have Bankruptcy Administrators, which are funded by general appropriations to the judiciary. These different funding systems have sometimes resulted in differences in fees imposed on debtors between different judicial districts, raising the question of whether different fee obligations for debtors in different judicial districts is consistent with the uniformity requirement. In Siegel v. Fitzgerald, No. 21-441, the Supreme Court has agreed to consider this question.
“[E]nsnared between his involvement in a business that is legal under the laws of Arizona but illegal under federal law,” one debtor’s chapter 13 petition was recently dismissed due to his undisputed violations of the Controlled Substances Act.
Fireworks in the Sky but not in Court: Bankruptcy Judge Takes a Practical Approach to the Ordinary Course of Business Defense
A recent decision applied the ordinary course of business defense to a preferential transfer claim where the parties had engaged in only two transactions. In re Reagor Dykes Motors, LP, Case No. 18-50214, Adv. No. 20-05031, 2022 LEXIS 70 (Bankr. N.D. Tex. Jan. 11, 2022). The court took a practical approach to the defense, given the absence of a detailed history of invoicing and payments between the parties.
Another case shows the perils of waiting until the final minutes to meet a court deadline. In re U-Haul, 21-bk-20140, 2021 Bankr LEXIS 3373 (Bankr. S.D. W. Va. Dec. 10, 2021).
Considering the Conduct of Two PPP “Fraudsters,” Bankruptcy Court Shows Its Teeth but Declines to Bite (For Now)
“Messrs. Woods and Wu are fraudsters,” Judge Christopher S. Sontchi declared in the opening salvo of his scathing opinion. According to the former Chief Judge of the U.S. Bankruptcy Court for the District of Delaware, Woods and Wu fraudulently obtained a Paycheck Protection Program (“PPP”) loan on behalf of Urban Commons Queensway, LLC, which indirectly operates the Queen Mary, a cruise ship turned hotel docked near Long Beach, CA. Woods and Wu then “absconded with the proceeds, leaving either the Debtor or the United States to pay back the lender.”
A federal judge recently allowed a trustee’s preferential transfer claim against a law firm to proceed but dismissed a constructive fraudulent transfer claim. The decision highlights the pleading standards and analytical framework for motions to dismiss such claims. Insys Liquidation Trust v. Urquhart (In re Insys Therapeutics Inc.), Case No. 19-11292, Adv. No. 21-50359, 21 Bankr. LEXIS 2965 (JTD) (Bankr. D. Del. Oct. 28, 2021).
In many chapter 11 cases, creditors’ committees play a vital role in maximizing the recoveries of unsecured creditors. But the powers of creditors’ committees are circumscribed by both the Bankruptcy Code and case law.
One way committees try to enhance recoveries is by seeking “derivative standing” to commence adversary proceedings challenging the validity of a secured lender’s pre-petition liens. A recent decision shows how one court analyzed if a committee had standing to bring such actions. In re Platinum Corral, LLC, No. 21-00833-5-JNC, 2021 WL 4695327 (Bankr. E.D.N.C. Oct. 7, 2021).
U.S. Bankruptcy Judge Craig A. Gargotta rejected a debtor’s attempt to use “CARES Act” funds, which it did not actually qualify for, to pay creditors in its chapter 11 case. BR Healthcare Solutions (the “Debtor”) operated a nursing home under the name Karnes City Health & Rehabilitation Center near San Antonio. But in January of 2020, the Debtor’s principal “decided to close the nursing home  due a sustained period of net operating losses. By February 4, 2020, all of the remaining patients were transitioned out of the nursing home to other providers.” In March of 2020, the Debtor filed for chapter 11.
In a recent decision, a district court reversed the decision of the bankruptcy court and clarified the independent obligation of the Bankruptcy Court to ensure that a Chapter 13 Plan satisfies the necessary requirements of the Bankruptcy Code, irrespective of the parties’ conduct. In re: BRUCE D. PERRY, Debtor. KRISTA PREUSS, Standing Chapter 13 Tr., SDNY, Appellant, v. BRUCE D. PERRY, Appellee., No. 20-CV-4617 (CS), 2021 WL 4298192 (S.D.N.Y. Sept. 21, 2021)
Earlier this month – citing the “virtually unflagging obligation” of an Article III appellate court to exercise its subject matter jurisdiction – the Eighth Circuit Court of Appeals decried the pervasive overreliance by district courts on the doctrine “equitable mootness” to duck appeals of confirmation orders.
When Potentially Violating “Gatekeeping” Orders, Asking for Permission May Be Easier (And Cheaper!) Than Begging for Forgiveness
Judge Stacey Jernigan did not mince words in a recent opinion sanctioning the former CEO of Highland Capital Management, LP. Entities related to the former CEO brought suit against Highland (the debtor in a Chapter 11 bankruptcy proceeding), and sought leave from the district court to add Highland’s replacement CEO as a defendant. In Judge Jernigan’s view, such conduct violated her “gatekeeping” orders that required the bankruptcy court’s approval before “pursuing” actions against the new CEO.
A key goal of the Bankruptcy Code is to prevent corporate insiders from profiting from their employer’s misfortune. Section 503(c) of the Code makes clear: “there shall neither be allowed, nor paid... a transfer made to, or an obligation incurred for the benefit of, an insider of the debtor for the purpose of inducing such person to remain with the debtor's business” absent certain court-approved circumstances.
Some courts permit debtors to designate vendors crucial to their business as “critical vendors.” These are vendors that supply debtors with necessary goods or services. With court permission, debtors are allowed to pay critical vendors amounts owing when a bankruptcy case is filed. Accordingly, critical vendors often recover more on their pre-petition claims than other unsecured creditors. In other words, critical vendors could receive a full recovery, while other creditors only receive a fraction of what they are owed.
The Bankruptcy Code grants the power to avoid certain transactions to a bankruptcy trustee or debtor-in-possession. See, e.g., 11 U.S.C. §§ 544, 547–48. Is there a general requirement that these avoidance powers only be used when doing so would benefit creditors? In a recent decision, the United States Bankruptcy Court for the District of New Mexico addressed this question, concluding, in the face of a split of authority, that there was such a requirement. In re U.S. Glove, Inc., No. 21-10172-T11, 2021 WL 2405399 (Bankr. D.N.M. June 11, 2021).
A recent case before bankruptcy judge Karen B. Owens of the United States Bankruptcy Court for the District of Delaware, In re Dura Auto. Sys., LLC, No. 19-12378 (KBO), 2021 WL 2456944 (Bankr. D. Del. June 16, 2021), provides a cautionary reminder that the Third Circuit does not recognize the doctrine of implied assumption (i.e., assumptions implied through a course of conduct as opposed to those that are assumed pursuant to a motion and court order).
As we reported, on June 21, 2021, the U.S. Supreme Court declined to revisit the rigid Brunner standard for determining “undue hardship” capable of discharging student debt. The same day, United States Bankruptcy Judge Michelle M. Harner applied the Brunner standard, discharging $178,000 of student debt.
That’s a Brunner, Man. Supreme Court Declines to Revisit Overly Rigid Standard for Discharge of Student Loans in Bankruptcy
On Monday, the United States Supreme Court denied Thelma McCoy’s petition for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit, passing up a golden opportunity to bring uniformity to the “important and recurring question” of how to determine the sort of “undue hardship” that qualifies a debtor for a discharge of student loans under 11 U.S.C. § 523(a)(8).
In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection. But, since “common law” is “[t]he body of law derived from judicial decisions, rather than from statutes,” is judicial interpretation of the Bankruptcy Code ever “federal common law”? Does it cross over to that dangerous territory if Congress left few clues as to what it intended in the provision undergoing interpretation?
Which Procedural Rules Apply to Non-Core, “Related-To” Matters in Federal District Court? Another Circuit Court Addresses the Issue
At stake in a recent decision by the First Circuit was this: when a bankruptcy matter is before a federal district court based on non-core, “related to” jurisdiction, should the court apply the Federal Rules of Bankruptcy Procedure or the Federal Rules of Civil Procedure? The First Circuit ruled that the former apply, and in so doing joined three other circuits that have also considered this issue. Roy v. Canadian Pac. Ry. Co. (In re Lac-Megantic Train Derailment Litig.), No. 17-1108, 2021 U.S. App. LEXIS 16428 (1st Cir. June 2, 2021).[i]
A creditor in bankruptcy must normally file a proof of claim by a certain specified time, known as the bar date, or have its claim be barred. Bankruptcy Rule 3002(c)(6)(A) provides a narrow exception to this rule when a creditor files a motion and “the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim because the debtor failed to timely file the list of creditors’ names and addresses required by Rule 1007(a).” Courts have disagreed about the meaning of this rule when a debtor timely files a list of creditors’ names and addresses (known as a creditor matrix), but improperly omits the creditor in question. Can the creditor then take advantage of this provision, or does it only apply when the creditor matrix is not timely filed at all? On May 25, 2021, the United States Bankruptcy Court for the Southern District of New York ruled in line with the former approach, holding that a known creditor omitted from a creditor matrix can take advantage of Bankruptcy Rule 3002(c)(6)(A) because when the creditor matrix omits a known creditor, it is not “the list of creditors’ names and addresses” that Rule 1007(a) requires.
In 2018, the liquidating trustee for Venoco, LLC and its affiliated debtors (collectively, the “Debtors”) commenced an action in the United States Bankruptcy Court for the District of Delaware seeking monetary damages from the State of California and its Lands Commission (collectively, the “State”) as compensation for the alleged taking of a refinery (the “Onshore Facility”) that belonged to the Debtors (the “Adversary Proceeding”). The State moved to dismiss, claiming, among other things, sovereign immunity. The Bankruptcy Court denied the motion to dismiss, and the District Court affirmed the denial. The State appealed to the Third Circuit, and the Third Circuit affirmed.
United States Bankruptcy Judge Harlin Hale recently dismissed the National Rifle Association’s Chapter 11 petition as not filed in good faith. The decision leaves the 150-year-old gun-rights organization susceptible to the New York Attorney General’s suit seeking to dissolve it.
In recognition of the 15th anniversary of the passage of chapter 15 of the Bankruptcy Code, the New York City Bar Association’s Bankruptcy & Corporate Reorganization Committee hosted a webinar on May 12, 2021 to discuss the current state of chapter 15 cases and potential, corresponding and significant future developments. Several dozen participants joined a panel of distinguished leaders in the field: the Honorable Allan Gropper, former United States Bankruptcy Judge for the Southern District of New York; Professor Jay L. Westbrook, Benno C. Schmidt Chair of Business Law, The University of Texas at Austin School of Law; Professor Edward Morrison, Charles Evans Gerber Professor of Law, Columbia Law School; and practitioners Rick Antonoff and Christine Okike.
Ignore the Court at Your Own Peril: First Circuit Affirms Denial of Discharge Based on Debtor’s Failure to Comply with Orders of the Bankruptcy Court
Debtors who ignore instructions from the Bankruptcy Court do so at their own peril, as a recent case from the First Circuit Court of Appeals illustrates. In In re Francis, the First Circuit reminds debtors and practitioners that “the road to a bankruptcy discharge is a two-way street, and a debtor must comply (or at least make good-faith efforts to comply) with lawful orders of the bankruptcy court.” Otherwise, debtors risk dismissal of their petition and denial of a discharge.
A recent case shows how even late payments can be used to satisfy the ordinary course of business defense in a preference avoidance action. Baumgart v. Savani Props Ltd. (In re Murphy), Case No. 20-11873, Adv. Pro. No. 20-1070, 2021 Bankr. LEXIS 1035 (Bankr. N.D. Ohio Apr. 19, 2021).
In January, we reported that the Supreme Court had resolved a split among the Circuit Courts of Appeals regarding property seized from a debtor pre-petition, holding that “merely retaining possession of estate property does not violate the automatic stay.” The underlying dispute in Fulton arose when individual debtors demanded that the City of Chicago return cars that were impounded for non-payment of various municipal parking and traffic violations immediately upon the filing of their bankruptcy petition, while the City maintained that debtors must seek turnover through an adversary proceeding.
In March, we reported on a brief filed by the Solicitor General recommending denial of a petition for certiorari filed by Tribune creditors seeking Supreme Court review of the Second Circuit ruling dismissing their state-law fraudulent transfer claims. This morning, the Supreme Court denied the petition, letting the Second Circuit decision stand.
Appeals Court Rules That a Discharge Injunction Bars a Fraudulent Transfer Claim Based on a Non-Dischargeable Debt
A discharge of debt in bankruptcy “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor. . . .” 11 U.S.C. § 524(a)(2). Certain debts, however, including debts “for violation of . . . any of the State securities laws,” are not subject to discharge. See 11 U.S.C. § 523(a)(19). A discharge injunction does not bar the collection of such debts. Does a discharge injunction bar a fraudulent transfer action, when that action is brought based on an underlying non-dischargeable debt? In a recent decision, the United States Court of Appeals for the Eleventh Circuit considered this issue, and concluded that the discharge injunction barred a fraudulent transfer action under the Alabama Uniform Fraudulent Transfer Act (“AUFTA”), because the fraudulent transfer claim gave rise to a separate liability from the underlying non-dischargeable debt. SuVicMon Development, Inc. v. Morrison, 991 F.3d 1213 (11th Cir. March 25, 2021).
It is well-settled that if you are a debtor in chapter 11, you do not have the unfettered right to convert the case to a chapter 7 liquidation. A recent 10th Circuit decision shows why. Kearney v. Unsecured Creditors Committee et al., BAP No. 20-33, 2021 WL 941435 (B.A.P. 10th Cir. Mar. 12, 2021).
When serving pleadings in an adversary proceeding, you may want to skip the certified option and go with regular first-class mail, or do both.
Federal Rule of Bankruptcy Procedure 7004 governs service of process in adversary proceedings. The statute specifically provides for service by first class mail. And while some courts will also permit service of pleadings by certified mail, other courts forbid the use of certified mail.
In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision, the Court of Appeals for the Second Circuit stood by its original holding, in an appeal that was first argued in 2014, that the payments to former Tribune shareholders that Tribune creditors were seeking to avoid were protected from avoidance by the “safe harbor” provided by Code Section 546(e). The creditors filed a petition for certiorari with the Supreme Court, and extensive briefing by the parties and several amici ensued.
Debtor Alleges Thirteenth Amendment Violation; Court Says Debtor Has Standing to Assert the Claim; Decision on the Merits to Follow
It’s rare for a debtor in bankruptcy to raise allegations of involuntary servitude and a violation of the Thirteenth Amendment. But one debtor did just that in a recent chapter 11 case. The court had appointed a trustee to take over the debtor’s bankruptcy estate. This prompted the debtor to assert a violation of his constitutional rights, arguing that he would be involuntarily forced to work for his creditors.
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