Bankruptcy Court Reinforces the Notion That Counting the Number of Eligible Creditors Commencing an Involuntary Case Really Counts

July 23, 2015

While commencing a bankruptcy case is most commonly undertaken voluntarily by the debtor itself, the Bankruptcy Code gives certain creditors authority to force certain entities into chapter 11 or 7 bankruptcy.  Unfortunately for the unwilling chapter 11 or 7 debtor, so long as petitioning creditors meet the statutory requirements to commence an involuntary case, the […]

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Does Silence Mean Consent? Some Courts Have Found That It Does Not (at Least for Purposes of Sales Under Section 363(f))

July 22, 2015

In melodramatic movie weddings, guests are urged, before the couple is joined in matrimony, to “speak now or forever hold their peace” (although this phrase never seems to work its way into actual wedding ceremonies – presumably because there are no longer legitimate objections to a marriage that guests should be voicing at the wedding). […]

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Blurred Lines: Seventh Circuit Keeps Alive Claims Based upon Law Firm’s Alleged Failure to Advise on Degrees of Business Risk

July 21, 2015

Attorney.  Counselor.  Advisor.  As “the last bastion of the generalist,” the role of the restructuring attorney takes various forms and requires a restructuring attorney to wear many different hats – at times acting both as lawyer and business advisor.  This combination of business and law is very often what draws professionals to the practice area […]

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Kentucky Bankruptcy Court Holds That Coal Mining Lease is Not an Executory Contract or Unexpired Lease and is Transferable Pursuant to Section 363 Despite an Anti-Assignment Provision

July 20, 2015

When a contract is called a lease and has some characteristics of a lease, but operates to grant the lessee the exclusive right to mine and remove coal from the premises, how should the contract be treated in bankruptcy?  In a previous post, we examined this question in the context of oil and gas leases.  […]

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What’s next for insolvency law reform in Europe: a pan-European insolvency law?

July 17, 2015

The reforms to the Council Regulation (EC) 1346/2000 on insolvency proceedings and their impact on cross-border insolvency have been well documented.  By contrast, the European Commission’s recommendation on “a new approach to business failure and insolvency” has gone relatively unnoticed. However, that recommendation could have significantly wider ramifications for insolvency and restructuring proceedings in Europe […]

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Same Dollars, Different Treatment: Tenth Circuit Holds That Distributions From a Retirement Plan Do Not Fall Within the Colorado State Law Exemption Statute

July 16, 2015

Although almost all of an individual debtor’s assets become property of the estate upon a bankruptcy filing, certain exceptions exist to the rule at both the federal and state level.  In some jurisdictions, funds held for a debtor in retirement plans are exempt assets.  An open question, however, is whether payments distributed from such plans […]

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Debt or Equity? Which Circuit? Recent Cases on Equitable Recharacterization

July 15, 2015

Seeking to recharacterize a debt claim as an equity contribution to the debtor through the equitable powers of the bankruptcy court (something we’ve written about quite a bit in our blog) is one way to reduce creditor claims against the bankruptcy estate, but only in certain circuits. In addition to the Tenth Circuit’s recent decision […]

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