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Recently, the Tenth Circuit considered a case involving the question of whether the U.S. Supreme Court’s decisions in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., 549 U.S. 443 (2007) and in Law v. Siegel, 134 S. Ct. 1188 (2014) affected established Tenth Circuit precedent that a bankruptcy court’s authority to recharacterize debt as equity arises under 11 U.S.C. § 105(a).  In its decision in Redmond v. Jenkins, et al (In re Alternate Fuels, Inc.), 789 F.3d 1139 (10th Cir. 2015), the Tenth Circuit held that neither Supreme Court decision eliminated a bankruptcy court’s authority under § 105(a) to recharacterize debt as equity.  In so ruling, the Tenth Circuit reiterated the continued application of its decision in In re Hedged-Invsetments Assocs., Inc., 380 F.3d 1292 (10th Cir. 2004) and its factors for determining when debt should be recharacterized as equity.

Read More from: Creditors' Rights

11 hours 18 min ago
Wire Company Holdings, Inc. (d/b/a New York Wire) and Wire Property Holdings, LLC filed chapter 11 petitions before the United States Bankruptcy Court for the District of Delaware on October 8, 2015 (lead case number 15-12097-LSS).  As set forth below, the Debtors seek authority to sell substantially all of their assets. According to the Declaration of Sandeep Gupta, the Chief Restructuring Officer of the Debtors, in Support of the Chapter 11 Petitions and First Day Pleadings, the Debtors are a world class manufacturer of wire and wire mesh products servicing a broad range of applications.  Decl., para. 14. Through August 2015, the Debtors reported a net loss of approximately $3,859,000 and an adjusted net loss of approximately $3,859,000 on revenues of approximately $27,617,000 on a consolidated basis. Decl., para. 18.  As of the Petition Date, the Debtors had approximately $14,642,000 in total indebtedness. Of that amount, approximately $12,207,451.02 (plus accrued interest) constitutes secured debt.  Decl., para. 19.
12 hours 12 min ago
Parties continue to skirmish over the sufficiency of the “cram-down” interest rate required to confirm a Chapter 11 plan over a secured lender’s objection. Currently bankruptcy courts will give some weight to the “prime plus” formula set forth in Till v. SCS Credit Corp., 541 U.S. 465 (2004)(plurality opinion). The Till plurality opinion suggest the proper analysis starts with the prime rate, then adjusting for factors such as “the circumstances of the estate, the nature of the security, and the duration and feasibility of the reorganization plan.” The Till opinion was later analyzed by the Fifth Circuit Court of Appeals in In re Texas Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324 (5th Cir. 2013). In Texas Grand Prairie, the Fifth Circuit upheld a bankruptcy court’s approval of a cram-down plan which proposed a spread above prime, but which was significantly lower than a third party lender would be willing to lend in the marketplace. The Texas Grand Prairie opinion declined to tie bankruptcy courts to a specific methodology.

Read More from: eSQUIRE Global Crossings

12 hours 34 min ago
Authored by Edward L. Kelly and Karl R. Grussand Edward L. Kelly and Karl R. Gruss of Rogers TowersBanks that meet the statutory definition of “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”) are prohibited from engaging in abusive consumer debt collection practices. Excluded from the debt collector classification are those banks that qualify as “creditors” under the FDCPA. But what if a bank that acquires a debt and seeks to collect it does not meet the precise definition of a creditor because it acquired the debt after default? Does that automatically make the bank a debt collector? FDCPA Definitions of “Debt Collector” and “Creditor” The FDCPA defines a “debt collector” as:
  • “[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”
A “creditor” meanwhile is defined as:

Read More from: Florida Banking Law Blog

12 hours 37 min ago
Colt Defense LLC is looking for approval of a deal that would let it access $50 million once it leaves bankruptcy, Daily Bankruptcy Review reports. (Daily Bankruptcy Review is a daily newsletter with comprehensive coverage and analysis of emerging and in-progress insolvencies and turnarounds. For a two-week trial, visit, scroll to the bottom and click “try for free.”) Read Bankruptcy Beat’s report on lawyers leading the charge in MF Global litigation seeking $42.1 million in fees. According to Bloomberg, Bahamas Prime Minister Perry Christie said resort project Baha Mar Ltd. could open up early next year. Longtime labor deal bargaining could be weakening as domestic car companies’ financing diverges, The Wall Street Journal reports.

Read More from: Bankruptcy Beat

13 hours 58 min ago
Being in debt is like being overweight; you’ve got too much of a thing you want to get rid of. As with losing weight, the way to get out of debt is a simple equation – spend less money than you make. There are only two ways for that equation to work, and those involve spending less or making more. Spending less smacks of deprivation because it means limiting the things you love. Making more, on the other hand, sounds more palatable. Personal finance experts such as Dave Ramsey extoll the virtues of working a second job. People who write about getting out of debt would have you believe there’s nothing better than the proverbial side hustle, a temporary or part-time job that allows you to pick up some much needed cash and have a fun experience at the same time. Americans are listening to this advice, with the Bureau of Labor Statistics reporting that nearly 5 percent of workers hold down 2 or more jobs. Though the figures have been rising since the Great Recession, working multiple jobs has long been seen as a mark of a hard worker who’s looking to get ahead. Back when I was starting my law practice and needed to keep a roof over my head, I had a series of second jobs. I’d do word processing at night, covered hearings for other lawyers in my spare time, and reviewed piles of real estate documents cluttered offices without windows.
18 hours 18 min ago
Banks are being "unbundled" by challengers in numerous business lines, but they can recapture the relationship with the help of technology and the right mindset.

Read More from: BankThink

23 hours 18 min ago
On October 8, 2015, Malibu Lighting Corporation and 6 affiliates filed for relief under chapter 11 of the Bankruptcy Code.  The cases are jointly administered under Case Number 15-12080 and presided over by Judge Gross.  The first day hearing was held on October 9, 2015.  The second day hearing is scheduled for October 27, 2015 at 10:00 a.m. The majority of the information available about the Debtors comes from the Declaration of David M. Baker in Support of First Day Motions (D.I. 3) (the “Declaration”).  There are three primary debtors in these cases:  Malibu Lighting Corporation (“MLC”), Outdoor Direct Corporation (“ODC”), and National Consumer Outdoors Corporation (“NCOC”).  The Debtors filed these chapter 11 cases in order to effectuate an orderly disposition of their assets in a manner that will maximize recoveries by all constituents, including a going concern sale of the operating assets of NCOC and orderly liquidation sales of assets of MLC and ODC. MLC was a manufacturer and supplier of outdoor and landscape lighting products.  MLC’s assets currently consist primarily of inventory, accounts receivable, intellectual property, and equipment.  The bulk of its assets are currently being marketed for sale by the Debtors’ proposed investment banker, Piper Jaffray & Co.
1 day 4 hours ago
Three women who allege they were repeatedly promised “life-changing” experiences by Relativity Media LLC as part of a short-lived reality show say the bankrupt Hollywood studio’s empty pockets should not let it off the hook for its empty promises. In a lawsuit filed last month in Texas, three Houston-area sex workers say Relativity never delivered on housing, health care, legal services and other assistance promised for their participation in the controversial A&E reality series “8 Minutes.” And in a complaint filed Sunday with the U.S. Bankruptcy Court in Manhattan, the three women, who want their case heard by a jury, asked a bankruptcy judge not to allow Relativity to escape their lawsuit as part of its ongoing chapter 11 case. Filing for bankruptcy temporarily freezes all litigation and allows for some types of lawsuits to be discharged, though exceptions are made when the suit involves certain kinds of fraud. A spokesman for Relativity declined to comment Monday.

Read More from: Bankruptcy Beat

1 day 6 hours ago
Brendan McDermid/Reuters
The lawyers who raked in more than $200 million for MF Global’s investors are now seeking their own payday. Bernstein Litowitz Berger & Grossmann LLP and Bleichmar Fonti Tountas & Auld LLP are seeking a total of $42.1 million—$38.8 million in fees and $3.3 million in expenses—for their work leading the charge in shareholder litigation against the failed brokerage, its former officials, its auditor and others. The lawsuit claimed MF Global misled investors about its business and financial results leading up to the its 2011 collapse. Officials have disputed wrongdoing in connection with the brokerage firm’s demise. The lawyers say in court papers that the payday is warranted in light of what they call their “skill, tenacity and effective advocacy,” which to date has procured settlements with all defendants except for some of its underwriters, who continue to face litigation.

Read More from: Bankruptcy Beat

1 day 7 hours ago
If you make above the median income, the means test has to be completed to determine whether you qualify to file chapter 7 without a presumption of abuse.  However, if you are a member of the National Guard or Reserves, you may be exempt from the means test and able to file chapter 7 regardless of your income, if you meet the following criteria:
  • You are member of the Army Reserve, Navy Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard or Air National Guard.
  • Performed the following service for at least 90 days:
    1. Active duty after September 11, 2001, or
    2. Homeland Defense

Read More from: Bonds & Botes, P.C.

1 day 8 hours ago
Upcoming Committee Formation Meeting: October 16, 2015 at 10:00 a.m. Case Name: Taylor-Wharton International LLC, et al. Case Number:15-12075 (BLS) Location: J. Caleb Boggs Federal Building, 844 King St., Room 5209, Wilmington, DE 19801 The petition and consolidated list of top 30 creditors, the first day declaration and the docket are available through Logan & Company, Inc. The Notice of Formation Meeting (including the creditor questionnaire) is available here. Contact Norman L. Pernick or Nicholas J. Brannick for more information.
1 day 9 hours ago
Perhaps you don’t feel you have any reason to believe your credit report is anything but clean and shiny. Or, you know for a fact that it’s quite tarnished and have decided ignorance is bliss. Or, maybe you are somewhere in between but just don’t understand why it’s worth checking anyway. Maybe you think, “even if there are mistakes on my credit report, what can I do about it anyway?” Regardless of which of those scenarios, or any others, you may fall into, there is something you need to know – and believe. A bad credit report can impact you in more ways than you can imagine. You probably figure you won’t be able to get loans easily if you have a bad credit score. However, you also will have trouble getting a job, an apartment and even insurance because almost everyone checks credit reports these days. Therefore, it’s important you know that your credit report does matter and that you can make corrections if there are mistakes. If your report is tarnished because of your own doing, you can take steps to repair your credit that will make a big difference going forward. Knowledge is power. Here is some advice to help you avoid costly mistakes.
1 day 9 hours ago
When a bankruptcy case is dismissed for cause pursuant to section 1112(b) of the Bankruptcy Code, the effect of the dismissal on orders entered during the case is not always clear.  A recent District of Delaware decision, In re Scarborough-St. James Corporation, sheds some light on the effect of an 1112(b) dismissal on a lease rejection order.  The court ultimately found that a lease rejection terminates the debtor’s possessory rights in the leased premises and that section 349(b) does not revest those possessory rights to the debtor upon a dismissal.  The court also found that its stay relief/adequate protection order, which had given effect to a state court order, would also survive the dismissal.   Background The debtor was the lessee and sublandlord of a shopping center located in Richmond, Michigan.  The debtor, which managed the shopping center and collected rents from eight subtenants, became embroiled in a messy dispute over who was entitled to the rents generated from the subtenants – the debtor or the landlord.  On the eve of a state court hearing on an eviction action brought by the landlord, the debtor filed for chapter 11 protection, resulting in a stay of the state court litigation.
1 day 10 hours ago
The U.S. Supreme Court recently heard oral arguments in Hawkins v. Community Bank of Raymore.  The Court is considering a circuit split to determine if a spousal guarantor is an “applicant” protected by the Equal Credit Opportunity Act (ECOA).  At issue is Regulation B which interpreted the ECOA’s definition of “applicant” to include a spouse-guarantor.  The question is should the term “applicant” include the person who is not directly applying for a loan.  Chief Justice Roberts, along with Justices Alito and Scalia, focused on the plain meaning of the term “applicant” which would preclude the need to give deference to Regulation B.  The questions from Justices Sotomayor and Ginsburg suggested a willingness to consider the term ambiguous and in need of further explanation by the CFPB, the agency tasked with overseeing the ECOA.  Sixth Circuit precedent grants deference to the CFPB and applies Regulation B.  The Eighth Circuit does not.  Until the Court decides Hawkins, creditors should be wary of an unexpected ECOA violation being raised by a spouse-guarantor.

Read More from: Creditors' Sidebar

1 day 11 hours ago
2016 Presidential candidate Carly Fiorina telegraphs a message that the mortgage industry would do well to heed.

Read More from: BankThink

1 day 11 hours ago
Former Lehman Brother bond trader Jonathan Hoffman lost a “double-dip” bid for an $83 million bonus he said he was owed. The Wall Street Journal has the Daily Bankruptcy Review article here. (Daily Bankruptcy Review is a daily newsletter with comprehensive coverage and analysis of emerging and in-progress insolvencies and turnarounds. For a two-week trial, visit, scroll to the bottom and click “try for free.”) The bankruptcy trustee for TelexFree’s chapter 11 case wants a formal ruling on the company’s alleged pyramid scheme, DBR reports via WSJ. According to WSJ, a Canadian court approved United States Steel Corp.’s efforts to separate its Canadian unit.

Read More from: Bankruptcy Beat

1 day 12 hours ago
Series: Newbie Litigator School This webinar will discuss how to effectively use evidence in the courtroom. Read more here.
1 day 12 hours ago
The United Arab Emirates (UAE) appears to be finally in the process of issuing a long-awaited new federal insolvency law. Described by some as a game-changer, the government announced in July that its Cabinet has approved a draft of the new law replacing the old (and largely unused) insolvency regime. The highly anticipated law is now pending the approval and ratification of the Federal National Council and Supreme Council before it receives final approval by Sheikh Khalifa bin Zayed bin Sultan Al Nahyan, the UAE President. Similar announcements have been made since 2010 based on the growing demand for a clear and modern insolvency law in the wake of the global financial crisis. Currently, while the UAE ranked 22nd in the World Bank’s influential Doing Business 2015 index last October, up from 25th position for the previous year, the country’s ranking for resolving insolvency matters slipped to 92nd position from 88th, below countries including Cote d’Ivoire and Mongolia.  The need for improvement in this important sector is clearly evident.

Read More from: eSQUIRE Global Crossings

1 day 17 hours ago
It’s been estimated that about 80% of people in the United States have credit report errors.  Those statistics are from 2009, so it’s likely that those numbers are higher in light of the rampant mortgage-related issues over the past few years. Under the Fair Credit Reporting Act, nobody is allowed to furnish inaccurate or incomplete information about you to a consumer reporting agency. Furnishers of information (typically creditors and debt collectors) have a legal duty to investigate disputes regarding credit report errors, as well as to prevent identity theft and protect sensitive medical information. If you have errors on your credit report, there are a few things you can to do to fix the problem. 4 Simple Steps To Take If You Find Credit Reporting Errors If you think there are errors on your credit report you should take these simple steps:
  1. get copies of all three (3) major credit reports – Experian, Equifax and TransUnion;
  2. review every line of every single report – remember, not all credit reports say the same things;
  3. if there’s an error on a report, file a complaint with the CFPB as well as a request for investigation with each credit reporting agency;
  4. review the updated credit reports to ensure that the errors are corrected.
If You Find An Error on Your Credit Report
1 day 18 hours ago