Free and Clear. Not So Fast. Bankruptcy Court Claws Back Ability to Sell Distressed Assets Free and Clear of Claims and Interests

April 9, 2014

Distressed asset purchasers should be aware of a recent decision, In re Marko, in which the bankruptcy court for the Western District of North Carolina called into question a trustee’s ability to sell estate assets free and clear of certain claims and interests, including claims and interests held against co-owners of the target assets.

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April 8, 2014

JUDGE MARKELL’S SPICKELMIER! Spickelmier fans, raise your impeccable bracket in the air for all the naysayers to see!  In the championship round, Spickelmier cruised into the number one spot with 60% of the votes.  Judge Markell’s witty reference to contemporary vernacular combined with his detailed account of counsel Mondejar’s “lowest moment in attorney representation the […]

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“Moo”-ving Away from Omegas: Seventh Circuit Opens the Barn Door for Use of Constructive Trusts as a Preference Defense

April 7, 2014

Distinguishing itself from the Sixth Circuit’s holding in In re Omegas Group, Inc., in In re Mississippi Valley Livestock, Inc., the Seventh Circuit recently held that, under some circumstances, the bankruptcy court may impose a constructive trust to find that prepetition funds transferred by the debtor never constituted property of the debtor.

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No Blurred Lines Here, Confidential Means Confidential (Even if No Nuclear Launch Codes Are Involved)

April 4, 2014

What is the price of confidentiality?  This is the question the District Court for the Southern District of New York recently answered in In re Lyondell Chemical Co. when the court explored whether a debtor’s former employee was entitled to recover an administrative expense under a settlement agreement with a confidentiality provision.  In a decision […]

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No Trust? Time for a Trustee

April 3, 2014

What constitutes sufficient “cause” requiring the appointment of a chapter 11 trustee?  In In re Dew, the United States Bankruptcy Court for the Eastern District of North Carolina granted the motion of the creditors’ committee to appoint a chapter 11 trustee after finding that the debtors-in-possession had grossly mismanaged their records and finances, which resulted […]

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MARCH MADNESS: Weil’s Championship Round

April 2, 2014

After weeks of fierce competition, we’re down to the final two contenders in Weil’s Bankruptcy March Madness.  In a stunning Final Four upset, front-runner Jerk Machine had its dreams of a championship crushed by our readers’ favorite underdog, fourth-seeded Spickelmier.  Grydzuk, after making the Final Four by just a single vote, easily defeated Reese to […]

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363(f) Versus 365(h): A Victory for 363(f), At Least in this Case

April 1, 2014

Section 363(f) of the Bankruptcy Code allows a trustee to sell property of the estate free and clear of any interest of an entity other than the estate.  Section 365(h) of the Bankruptcy Code, on the other hand, protects the interests of a lessee in the event the trustee rejects an unexpired lease of real […]

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