A decision out of the District Court for the Middle District of North Carolina (the “District Court”), now being appealed to the Fourth Circuit Court of Appeals, highlights just how critical it is for lenders to strictly comply with local recording requirements when recording their liens. In SunTrust Bank N.A. v. Northen, 433 B.R. 532 (M.D.N.C. Aug. 6, 2010), the District Court affirmed the Bankruptcy Court’s decision to grant summary judgment in favor of the chapter 7 trustee (the "Trustee") seeking to avoid the deed of trust of lender SunTrust Bank N.A. (“SunTrust”), which had been properly recorded pre-petition by SunTrust’s predecessor-in-interest in one indexing system, but improperly in another. In finding that the Trustee’s actual or constructive knowledge of the lien was irrelevant to its avoiding power and that only the official real property index was relevant in determining whether a deed is properly recorded, the District Court has sent a telling message to lenders – strictly comply with local recording requirements or face avoidance of your security interest in your borrower's property in bankruptcy.Continue Reading Questions & comments
Since the start of the financial crisis, the number of problem loans has increased as real estate values declined, credit markets tightened, and various companies struggled to survive and stay in business during this recession. For lenders who made loans secured by real estate or personal property collateral during better economic conditions, these lenders are now being faced with loan defaults and having to decide whether to workout the loan (e.g., by giving an extension of maturity date, or restructuring the interest rate or other loan terms, or waiving certain defaults) or to exercise its rights and remedies (e.g., by foreclosure, appointment of a receiver, action against the guarantor, etc.). The following identifies ten best practices and issues for consideration by lenders when dealing with a problem loan.Continue Reading Questions & comments
With bankruptcy filings up by more than 25% in the recent past, and with the promise of many more to come in the near future, an increasing number of businesses and individuals may find themselves listed amongst the largest unsecured creditors of a debtor and with much to lose in a bankruptcy case. As one of the largest creditors, these same businesses and individuals may also find themselves being solicited to serve on “official” unsecured creditors’ committees. While a creditor who is already owed significant amounts of money by a debtor may consider any further time or effort expended in connection with a debtor to be a waste of resources, serving on a creditors’ committee can often be a valuable opportunity to be involved in the direction a debtor's case and reorganization (or ultimate liquidation) will take and to ensure the maximum recovery for all unsecured creditors, including itself. This article provides a brief overview of what a committee is, who may serve on a committee, what service entails, and some of the pros, cons and other considerations of and for serving on a creditors committee.Continue Reading Questions & comments
Most maritime shipping companies were operating profitably through the summer of 2008 until the "perfect storm" of the credit crisis and the worldwide recession struck, leading to the collapse of both the commodity and freight markets. The resulting upheaval has affected trade credits, shipbuilding deliveries, orders, chartering, and sales-and-purchases, among other things, for shipping companies worldwide. Reports of bankruptcy, insolvency, liquidation and complex debt restructurings of shipping and other maritime industry companies have begun surfacing in the trade press, with more to come.
As a result of the turmoil in the shipping industry, actions seeking attachments under Supplemental Admiralty Rule B of the Federal Rules of Civil Procedure have risen dramatically, further exacerbating the problems facing cash-strapped shipping companies. As the recent U.S. bankruptcy filings of Armada (Singapore) Pte. Ltd. and Atlas Shipping A/S demonstrate, Chapter 15 bankruptcy proceedings under the U.S. Bankruptcy Code may provide struggling shipping companies with a powerful tool for protecting their assets from Rule B Attachments.
A common strategy for acquiring the business of a troubled company is to purchase assets rather than acquire all outstanding capital stock of the target, based on the general principle that a purchaser of assets is not responsible for liabilities of its seller absent an express or implied assumption. Does the strategy work? Depending on the liability and circumstances, the answers are "No" and "Maybe," and sometimes a qualified "Yes." In troubled economic times, buyers may reconsider whether they are willing to rely upon indemnity by the seller or its owners, particularly since doctrines of public policy may render such an indemnity unenforceable in certain situations.Continue Reading Questions & comments
Bankruptcy filings are skyrocketing as more and more companies are going deep into the red. For retailers or their landlords holding leases in commercial property, there are special considerations to keep in mind. This post will provide some basic information on the rights of non-debtor tenants and landlords under unexpired non-residential property leases when a debtor–landlord or –tenant, respectively, files a chapter 11 bankruptcy petition.Continue Reading Questions & comments
On June 7, 2006, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and co-sponsor Senator Patrick Leahy, convened a Senate Judiciary Committee hearing to consider proposed amendments to the Fairness in Asbestos Injury Resolution Act of 2006 (or the FAIR Act of 2006, S. 3274), the controversial asbestos reform legislation originally introduced on May 26, 2006. In November of 2005, the bill had fallen one vote shy of the 60 votes needed to waive objections that the FAIR Act would violate Senate budget rules. Notwithstanding the proposed amendments, the bill continues to face significant opposition from numerous parties, including small and medium-sized companies that have used insurance to pay asbestos judgments and assert that they would face financial hardship if forced to make annual contributions to the fund based on their past liability. The general consensus of a number of experts is that the bill will not pass Congress this year, and instead, a medical criteria bill may be the focus of Congress next year.Continue Reading Questions & comments
When a company files for bankruptcy protection, its vendors risk not getting paid for outstanding invoices, and getting sued by the estate for return of payments received shortly before the petition date. Vendors may also have concerns about continuing to do business with the debtor. In order to address some of these issues, a vendor may be able to persuade the debtor to seek a court order providing that it is "critical" to the debtor's ongoing operations. Such a "critical vendor order" protects the vendor by allowing the debtor to pay most or even all of its outstanding invoices, as well as providing some assurance of payment for ongoing sales. What these orders very often do not provide is protection from so-called "preference" claims for recovery of amounts paid to the vendor during the 90 days prior to bankruptcy.Continue Reading Questions & comments
The 2005 Amendments Will Have Significant Ramifications For Creditor And Equity Committees And Their Members
Traditionally, serving on a committee has ensured that committee members' interests were represented and provided members with access to confidential information that would otherwise be inaccessible. Several new provisions under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005?which will increase flexibility in the composition of committees and significantly expand the duties that a committee and its members owe to non-committee members?raise the issue of whether it will even be necessary to serve on a committee after October 17, 2005. But creditors may not want to shun committee membership quite yet.Continue Reading Questions & comments
As has been widely reported in the financial press, the April 2005 amendment of the Bankruptcy Code represents the most sweeping changes to the Code in several decades. And while considerable media coverage has described what the new laws mean for consumers, the ramifications of those changes for healthcare bankruptcies has gone largely unaddressed by the mainstream press. We believe that for the healthcare industry, the most significant ramifications of the 2005 bankruptcy law changes are likely to include the following:Continue Reading Questions & comments
The Telecommunications Act of 1996 (the "1996 Act") was designed to facilitate local telephone competition by eliminating state-imposed barriers to competition, and by forcing the incumbent local exchange carriers (generally the incumbent former Bell operating companies such as Verizon, SBC and Qwest) to cooperate and lease their network elements to competitive companies. Thus, the new entrants - the competitive local exchange carriers (the "CLECs") - were allowed to build their own competing networks and to interconnect that infrastructure with the existing telephone networks of the incumbents.Continue Reading Questions & comments
If your customer files its bankruptcy petition after October 17, 2005, you may be entitled to the benefit of some new or changed rules resulting from revisions recently made to the United States Bankruptcy Code. In fact, some of the provisions are significantly more friendly to creditors, so you may find yourself in a much better position than you would have been under the prior version of the Bankruptcy Code.Continue Reading Questions & comments