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The scope of the Bankruptcy Code’s safe harbor for certain financial contracts has been tested again, this time in the United States Bankruptcy Court for the Western District of Louisiana.  The question this time was whether an ipso facto provision continues to be safe harbored if enforcement of that provision is conditioned on other factors – in this case, the debtor’s failure to perform under the contract. 

Consistent with prior case law, the court held that termination is only safe harbored if it is based solely on a condition specified in 365(e)(1), i.e., the financial condition of the debtor, bankruptcy, or the appointment of a trustee.  Because the ipso facto provision in this case contained an additional condition to enforcement (the debtor’s breach), it no longer fell within the safe harbor.  Thus, even if both conditions were satisfied (bankruptcy and breach), the automatic stay applied and the termination clause could not be exercised absent relief from the automatic stay.

3 weeks 5 days ago

Power of Attorney for Healthcare

A Power of Attorney for Healthcare designates someone to represent you when you are unable to make decisions or unable to communicate decisions about your healthcare. This healthcare “agent” will be someone you trust to make all necessary medical decisions on your behalf and respect your wishes regarding life support, religion, and personal choices.

Power of Attorney

Why You Need a Healthcare Power of Attorney

A Power of Attorney for Healthcare covers situations that a living will does not. A living will takes affect if you are terminally ill, in a permanent vegetative state, or other similar condition defined by Wisconsin law. What happens if you are only temporarily in a coma or temporarily unable to communicate? This is where a Power of Attorney for Healthcare is used.


Read More from: Wynn at Law, LLC

3 weeks 6 days ago

California homestead lawHome equity makes up most of the net worth of California seniors.

Most are house poor.  Lots of equity, little in liquid assets.

But unless you take a very expensive reverse mortgage, that equity may as well be under lock and key.  You can’t pay the monthly expenses from value in real estate.

When expenses pile up, when seniors need to downsize or move to assisted living, California’s homestead law doesn’t protect them.

Sell the house, and your life savings in the house are exposed to your creditors if you don’t buy a new house with the proceeds.

And just how many seniors can qualify for a new mortgage?

Even assuming they want and can maintain another home.

Yet that’s the way current law works.

Rock, meet hard place.

3 weeks 6 days ago

Attorney Grant McNuttOnce you and your bankruptcy attorney go through your bankruptcy petition to make sure it is accurate and you both sign your names in all the appropriate places, the Petition is then filed electronically with the Court.  The second your Bankruptcy petition is filed the Court appoints a bankruptcy trustee to administer your case.

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

3 weeks 6 days ago

Halcón Resources Corp. et al (NYSE: HK) and 21 affiliates have filed chapter 11 petitions before the United States Bankruptcy Court for the District of Delaware (Lead Case No. 16-11724).  The debtors are an independent energy company focused on the acquisition, production, exploration and development of onshore liquids-rich assets in the United States, based in Houston, Texas.  The debtors previously announced their intention to pursue an expedited pre-packaged chapter 11 plan and that they have entered into a Restructuring Support Agreement with their third-lien noteholders.  The petition for Halcón Resources Corporation, including the consolidated list of top 30 creditors, is provided here.  The dockets will be available through Epiq.

Contact Norman L. Pernick or Nicholas J. Brannick for more information.

3 weeks 6 days ago

A Douglas County Courtroom, Omaha, Nebraska

By: Donald L. Swanson

In Omaha, Nebraska, where I live and practice, mediation plays a central role in civil litigation outside the Bankruptcy Court.  And it’s playing an increasing role in Bankruptcy Court as well—but that’s a story for another day.

Mediation is a vital part of the civil litigation culture around here.  And it’s been that way for quite a while.  It seems that attorneys plan for mediation as part of their strategy in any given case.

Mediation rules in Nebraska’s Federal District Court encourage mediation.  For example,

–Its “Mediation Plan” authorizes a federal judge to “refer a case to mediation” when the judge finds “a resolution of the case by mediation a practical possibility.”

–Its “Rule 26(f) Report” form requires competing attorneys to address mediation possibilities and timing at the beginning of a case.

And Nebraska’s Dispute Resolution Act for state courts begins with these findings:

Read More from: Mediatbankry

3 weeks 6 days ago

Student loan news all over the place this week, including

some new stuff on Student Loan Servicers.

Yes, election year. What about that Libertarian candidate?

Eliminate the Department of Education?

That is one of Mr. Johnson’s proposals, though a few Republican

candidates have tossed that one out before.

He shares my views on student loans driving up the cost of college while driving down the value of a degree.

Johnson: It’s guaranteed government student loans. If guaranteed government student loans never existed, tuition today would be half of what it is, because colleges and universities would have to go out and attract you as a student. And they would have to be as effective and efficient as everything else in our lives. But because you are guaranteed a government student loan, you have no excuse to not go to college. Colleges’ and universities’ tuition keeps going up. They have absolutely no reality with regard to their pricing. If every college student tomorrow says, “I’m not going to go to college until the price of college, university education drops,” guess what? It would. It would happen. It would happen dramatically.

Read More from: Discharge Student Loan

3 weeks 6 days ago

Under Section 363(f) of the Bankruptcy Code, a debtor or trustee can sell estate assets “free and clear of any interest” in such assets.  This short, simple string of six words represents one of the most powerful tools in the bankruptcy professional’s arsenal.  In many situations, section 363(f) allows the bankruptcy estate to unlock the value of certain assets that might be wholly unmarketable, or otherwise severely diminished in value on account of unknown or unasserted claims against such assets or due to uncertainty regarding the amounts of, or relative priority among, secured claims against such assets.  In some cases, access to section 363(f) is the primary driving force behind a bankruptcy filing. 

3 weeks 6 days ago

  This is the bankruptcy case study for Michael M., who resides in Aurora, DuPage County, Illinois. Michael is currently being garnished for a hospital bill and is seeking protection under the bankruptcy code. He is inquiring as to whether or not he can file a Chapter 7 to stop the garnishment and yet keep+ Read More

The post Bankruptcy Case Study For Michael M. appeared first on David M. Siegel.

4 weeks 2 hours ago

living in debt

What are the consequences of filing bankruptcy?

Is it better to live with the debt and keep making minimum payments?

That question sums up most people’s fears about shedding their debt through bankruptcy.

What will life be like, after bankruptcy?

Good questions.  And I applaud people who realize that debt and debt relief each have future consequences.  I’ve talked about it before.

Clients fear the ” bankruptcy unknown”, closing their eyes to the precariousness of their current situation as though doing nothing is a worthy choice.

But lets turn the question around:  what will life be like if you continue on like you’re doing?

Life in debt

Servicing debt from the past cuts down your future options.  Your paycheck is already committed before it hits the bank.

Whether it’s payday loans or credit cards for this month’s necessities, you’re locked in.

4 weeks 5 hours ago

Lawyer Nick GajewskiIf you are just starting to consider filing a bankruptcy case, you’re probably wondering where to start.  You’re asking yourself “What information and documents will I need to provide to my lawyer or to the court?”  This blog post will lay out the basics you need to get started.

Driver’s License and Social Security Card

First, you’ll need your Driver’s License and Social Security Card.  The Court will require you to present a government issued photo ID.  If your License has been suspended or you don’t have one, then you’ll need to get a Non-Driver ID card.  Your local State Trooper’s License Office can issue one and they’ll tell you what you need to get one.  Also, if you’ve lost your Social Security Card, then you’ll need to go apply for a new one.  You can apply at the Social Security office and it usually takes a few weeks to get your new card.

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

4 weeks 7 hours ago

Leases: How About Those Attorneys’ Fees? In re FKA FC, LLC, 545 B.R. 567 (Bankr. W.D. Mich. 2016) – A chapter 11 debtor sought to assume and assign a lease. The debtor contended that the cost to cure defaults under … Continue reading

4 weeks 8 hours ago

Arch of Constitutional Court building in St. PetersburgTheoretically, a Russian debtor is able to reorganize. In practice, the law currently does not encourage voluntary restructuring of debt in a way designed to preserve the continued operation of business and jobs.  The interests of debtors and creditors are not appropriately balanced at present to achieve the best results.  Creditors currently have a strong incentive to aggressively pursue legal action against distressed businesses, to secure their vote at creditors’ meetings and the right to propose their own candidate to serve as an interim trustee.

An article outlining the main insolvency law in Russia, the Federal Law No. 127-FZ of October 26, 2002 “On Insolvency” (the “Law”) which deals with pre-insolvency re-organization and formal insolvency procedures including re-organization, has recently been published in Eurofenix, the official quarterly journal of INSOL Europe and examined this question. Click below to read the article.

Is it possible to Restructuring in Russia

Read More from: eSQUIRE Global Crossings

4 weeks 10 hours ago

Many Americans suffering from serious debt problems are finding that they don’t have the financial resources needed to shop for retail products. Moreover, the debt issues faced by millions of people in the U.S. are having a significant negative effect on US corporations, particularly businesses in the retail industry. Put simply: without money, American consumers are not making the kinds of purchases needed to boost up the struggling economy.

4 weeks 20 hours ago

The Bankruptcy Code’s priority scheme provides that the shareholders generally cannot receive anything on account of their investment until all secured, priority and unsecured creditors are paid in full.  This principle applies even when the company—and by extension, its shareholders—is a victim of fraud.  When such an unfortunate situation arises, as it has in the case of Syntax-Brillian, one cannot help but sympathize with the affected shareholders who have seen their investment wiped out with slim hope for any recovery.  It is often in these despairing contexts that we see parties seek atypical forms of relief in an effort to recapture the value of their investment.  That was the case in Syntax-Brillian, where the court considered whether it was appropriate to disqualify and terminate the Debtors’ liquidating trustee. 

4 weeks 1 day ago

The Supreme Court again will be addressing the powers of bankruptcy courts. At the end of the term, the Court granted certiorari in Czyzewski v. Jevic Holding Corp. to decide whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that violates the statutory priority scheme in the Bankruptcy Code.  No. 15-649, 2016 WL 3496769 (S. Ct. June 28, 2016).  The Supreme Court is expected to address this fundamental bankruptcy issue sometime early next year.


Jevic Transportation was a New Jersey-based trucking company. In 2006, Sun Capital Partners, a private equity firm, acquired the company in a leveraged buyout.  Sun Capital financed the transaction by borrowing against Jevic’s assets.  Shortly thereafter, Jevic refinanced the debt it had incurred pursuant to the buyout with a consortium of lenders led by CIT Group.  By late 2007, Jevic had defaulted on this loan. Jevic then filed for chapter 11 bankruptcy protection on May 20, 2008.

4 weeks 1 day ago

A common argument made against regulating small dollar credit products like payday loans is that regulation does nothing to address demand for credit, so consumers will simply substitute their consumption from payday loans to other products:  overdraft, title loans, refund anticipation loans, pawn shops, etc.  The substitution hypothesis is taken as a matter of faith, but there's surprisingly little evidence one way or the other about it (the Slips' own Angie Littwin has an nice contribution to the literature).  

Read More from: Credit Slips

4 weeks 1 day ago

california bankruptcy law

California Bankruptcy law is a lot like a unicorn….appealing but imaginary.

Instead, we have bankruptcy in California, where the landscape is shaped by community property;  state exemptions, large mortgages, and the 9th circuit court of appeals.

Like the Merced River cutting through the granite of Yosemite, those factors alter the bankruptcy landscape here.

Community property

California community property law defines what assets of a married couple come within the control of the bankruptcy court. While there are other community property states, it is the law of each state that defines how community property is created.  State law also defines the rights of creditors in that community property.

4 weeks 1 day ago

Kathryn DavisThe Grand Prix of Boston has filed for Chapter 7 bankruptcy.  The Grand Prix was scheduled to debut as an IndyCar Series race on September 4, 2016 and was to run each year through 2020.  The race would run along the South Boston Seaport, and the city of Boston and the Massachusetts Convention Center Authority, among others, had reached an agreement with IndyCar to put on the race.  However, in April 2016 the organizers of the race announced that it would not go forward as planned.  They cited potential costs to correct flood zone issues as a reason for cancelling the race, but other sources cite low ticket sales and unhappy local residents as reasons for the cancellation.

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

4 weeks 1 day ago


By: Donald L. Swanson

Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation.

I’m suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document.  Here’s why.

Some Ancient History

Its 25 years ago — or more.

I’m in a mediation session with a senior partner and a client. This is the first mediation session I’ve ever experienced — and I’m trying to figure out how it’s done.

The mediation lasts all day. And the case settles. By the end, everyone is tired and cranky.

Around 5:30 p.m., all attorneys are in the mediator’s office to prepare the settlement document. The mediator pulls out a single sheet of paper.  It’s a pre-printed form. It has: (1) a state court name at the top, with a blank for filling-in the specific court involved, (2) lines  for filling-in the case caption and case number, and (3) lines at the bottom of the page — presumably, for the parties’ signatures.  Otherwise, the page is blank.

Read More from: Mediatbankry

4 weeks 1 day ago