The first year of practice after law school is an exciting, yet humbling, experience for brand new associates, especially if starting in a field that is new and unfamiliar.
Young And New Members Committee
Committees
Certainty in business translates into increased expenses for both buyers and sellers, or in the chapter 11 context, debtors and creditors. The Eleventh Circuit Court of Appeals has increased debtors’ and creditors’ costs of doing business by issuance of its opinion in Marathon Petroleum Co. v. Cohen (In re Delco Oil Inc.), 599 F.3d 1255 (11th Cir.
This article addresses potential preference exposure for workout payments made pursuant to restructuring agreements between a creditor and debtor. Specifically, this article will address whether these payments are free from avoidance under the “ordinary course of business” defense.
The Ordinary Course of Business Defense in General
Commercial real estate projects are typically financed with non-recourse mortgage loans for tax reasons. If the borrower defaults, the lender’s sole recourse is to foreclose on the mortgaged property to recover on any balance owed under the loan; it may not recover against the other assets of the borrower or its principals.
With the greatest financial crisis in a century roaring full steam ahead with no end in sight, bankruptcy filings are up as well as §363 sales. Sales pursuant to §363 of the Bankruptcy Code have become more common than traditional plans of reorganization in bankruptcy cases. As a consequence, senior secured lenders have enforced their right to credit bid in such §363 sales.
In ASM Capital LP v. Ames Dept. Stores Inc. (In re Ames Dept. Stores Inc.), No. 07-1362, 2009 WL 2972510 (2d Cir. Sept.
“Who doesn’t love a good sale” are the introductory words used in A Comparison Shopping Guide for 363 Sales, written by Kelly K. Frazier and published this summer by ABI. But, how does a lawyer conduct a business asset sale pursuant to 11 U.S.C. §363? Or better yet, how does a lawyer advise the debtor-in-possession, potential purchaser or secured lender?
Reaffirmation agreements are appearing more frequently on courts' dockets because of changes implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).
A recent decision of the Bankruptcy Court for the District of Delaware (court) halted a proposed §363 sale, and this decision could significantly impact future bankruptcy sales of retail businesses holding inventory on consignment. In re Whitehall Jewelers Holdings Inc., 2008 WL 2951974 (Bankr. D. Del. July 28, 2008).
![Photo of Philip J. Landau [1]](https://abi-org-corp.s3.amazonaws.com/committee/Authors/ABI_LOGO_62.jpg){kind=logo}
Two commonly misunderstood remedies in the young bankruptcy practitioner's tool box are the defenses of setoff and recoupment. Section 553 of the Bankruptcy Code preserves the nonbankruptcy right of a "creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case...." 11 U.S.C. §553(a).
Ms. Bodie B. Colwell
Co-Chair
Preti Flaherty, LLP
Portland, ME
(207) 791-3000
Co-Chair
Preti Flaherty, LLP
Portland, ME
(207) 791-3000
Ms. Christina M. Sanfelippo
Co-Chair
Cozen O'Connor
Chicago, IL
(312) 474-4455
Co-Chair
Cozen O'Connor
Chicago, IL
(312) 474-4455
Mr. Jon Schlotterback
Communications Manager
Mayer Brown LLP
Charlotte, NC
(319) 202-8180
Communications Manager
Mayer Brown LLP
Charlotte, NC
(319) 202-8180
Mr. John T. Baxter
Education Director
Shackelford Bowen McKinley & Norton LLP
Nashville, TN
(615) 329-4440
Education Director
Shackelford Bowen McKinley & Norton LLP
Nashville, TN
(615) 329-4440
Ms. Amber M. Carson
Education Director
Gray Reed
Dallas, TX
(469) 320-6199
Education Director
Gray Reed
Dallas, TX
(469) 320-6199
Mrs. Letson Douglass Boots
Membership Relations Director
Bernstein Shur
Portland, ME
(207) 774-1200
Membership Relations Director
Bernstein Shur
Portland, ME
(207) 774-1200
Mrs. Christian A. Conway
Membership Relations Director
Neal and Leroy, LLC
Chicago, IL
(708) 250-8120
Membership Relations Director
Neal and Leroy, LLC
Chicago, IL
(708) 250-8120
Ms. Joy D. Kleisinger
Newsletter Editor
Frost Brown Todd, LLC
Cincinnati, OH
(513) 651-6800
Newsletter Editor
Frost Brown Todd, LLC
Cincinnati, OH
(513) 651-6800
Mr. John Richard O'Connor
Newsletter Editor
Levenfeld Pearlstein LLC
Chicago, IL
(630) 308-2487
Newsletter Editor
Levenfeld Pearlstein LLC
Chicago, IL
(630) 308-2487
Ms. Gabrielle G. Palmer
Special Projects Leader
Onsager | Fletcher | Johnson | Palmer LLC
Denver, CO
(720) 457-7059
Special Projects Leader
Onsager | Fletcher | Johnson | Palmer LLC
Denver, CO
(720) 457-7059