4th Circuit

RSAs Don’t Bar Indenture Trustees from Creditors’ Committee Membership

Bankruptcy Judge Brian Kenney ruled that an indenture trustee must be on a committee when the debt is ‘overwhelmingly’ held by bondholders.

An Agreement to Modify a Mortgage Was an Assumable Executory Contract

Is pre-filing a mortgage modification agreement a contract to make a loan that cannot be assumed under Section 365(c)(2)?

Orders for Contempt and Sanctions Aren’t Appealable in the Fourth Circuit

Whether orders in contested matters are ever appealable is in doubt after a Fourth Circuit decision that declined to follow contrary opinions by bankruptcy appellate panels.

Fourth Circuit Says Entireties Property Is Not Exempt from Tax Debt

The lack of perfection of a federal tax lien did not mean that the entireties interest was exempt under Section 522(b)(3).

Being a ‘Net Winner’ in a Ponzi Scheme Doesn’t Automatically Mean Nondischargeability

Alleging that a debtor realized an ‘impossibly high’ rate of return in a Ponzi scheme isn’t enough to state a claim of nondischargeability for ‘actual fraud.’

Lack of Financial Distress Doesn’t Divest a Court of Subject Matter Jurisdiction

Two North Carolina Courts have held within two months that the Bankruptcy Clause doesn’t demand ‘financial distress’ to establish subject matter jurisdiction.

Agreements in Settlement of Nondischargeable Debts Are Themselves Nondischargeable

Fourth Circuit holds that attorneys’ fees and interest in pursuit of nondischargeable debts are themselves nondischargeable.

Denial of Modification of a Chapter 11 Plan Is Final and Appealable

Baltimore district judge applies the Fourth Circuit’s ‘substantial and unanticipated’ test to modifications of chapter 11 plans.

With Reservations, a Chapter 11 Debtor with No Financial Distress Avoids Dismissal

Bankruptcy Judge Whitley says that a no-opt-out plan for a solvent debtor might violate creditors’ due process and jury trial rights.

Judge Harner Gives Contours to the Amorphous Notion of ‘New Value’

The ‘new value’ offered by old equity in a chapter 11 plan was insufficient because it was only a small fraction of claims and because the dividend to creditors was also small.