Authored by: Andrew Thomison of Baker Botts Abandonment of acceleration resets the statute of limitations. In U.S. Bank N.A. v. Morris, No. 1:19-CV-00352-SH, 2021 WL 2870718, 2021 U.S. Dist. LEXIS 127559 (W.D. Tex. July 8, 2021), the court held that because a bank repeatedly abandoned the acceleration of a loan and related foreclosure proceedings, the […]
Southwest Update – Deutsche Bank Nat’l Trust Co. v. Saihat Corp.
Authored by: Andrew Thomison of Baker Botts Notice to other lienholders required when exercising foreclosure rights. In Deutsche Bank Nat’l Trust Co. v. Saihat Corp., No. 21-20002, 2021 WL 5830821, 2021 U.S. App. LEXIS 36131 (5th Cir. December 8, 2021) (unpublished opinion), the court held that a bank’s lien on a residence survived an HOA […]
Rocky Mountain/Western – In re Shoot the Moon, LLC
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Secured Creditor Forced to Pay Debtor’s Attorney’s Fees When Receivable Sale Is Treated as Disguised Usurious Financing SUMMARY In In re Shoot the Moon, LLC, 2021 WL 4144933 (Bankr. D. Mont.), the United States Bankruptcy Court for the District of Montana (the “Bankruptcy Court”) […]
Rocky Mountain/Western Update – In re S-Tek 1, LLC
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) New Mexico Bankruptcy Court Holds That Lender’s Security Interest Does Not Extend to Proceeds of Commercial Tort Claim Settlement SUMMARY In In re S-Tek 1, LLC, 2021 WL 6101680 (Bankr. D. N.M. Dec. 23, 2021), the United States Bankruptcy Court for the District of […]
Rocky Mountain/Western Update – In re Figueroa Mountain Brewing
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Bankruptcy Court Denies Secured Creditor’s Right to Credit Bid for Assets Under Section 363(k) SUMMARY In In re Figueroa Mountain Brewing, LLC, 2021 WL 2787880 (Bankr. C.D. Cal. Jul. 2, 2021), the United States Bankruptcy Court for the Central District of California (the “Bankruptcy […]
When is a Guaranty Claim Reduced by Recovery in a Debtor’s Bankruptcy Case?
Authored by: Edwin E. Smith of Morgan Lewis Re-printed with permission. The original article can be found by clicking here. Consider a lender that extends a term loan in the amount of $1 million to an entity debtor. The loan is guaranteed by the debtor’s owner. If both the debtor and the guarantor become subject […]
Recap of the 2022 Spring Investment Forum
Authored by: Wendy Harlan (Unum Group) While this year’s theme for the Spring Forum, A Whole New World, emphasized how much things have changed (and indeed they have), for many, the return to the Ballroom at the Four Seasons Hotel in Chicago was a familiar and welcome opportunity for in-person attendees to meet with friends, […]
Meet the New Officers and Trustees – January 2022
Contributed by Benjamin Cordiano (Morgan Lewis) — Please click on the link below to learn more about the ACIC’s new leadership team: ACIC – Meet the New Officers and Trustees 2022
UK Update – Landlords and Leasehold Restructurings in the UK: What does 2022 hold?
Contributed by Tom Bannister (Akin Gump) Landlords and Leasehold Restructurings in the UK: What does 2022 hold? The COVID-19 pandemic has impacted a number of businesses in a number of ways. In the UK, the retail sector has been particularly hard-hit. Even before the pandemic, companies had been struggling due to (among other things) increased […]
Canadian Update: The Supreme Court of Canada Confirms the Broad Discretion the CCAA Vests in the Supervising Courts
Contributed by Danielle Maksimow (Norton Rose Fulbright Canada) — Canada v. Canada North Group Inc. 2021 SCC 30 Canadian Update: The Supreme Court of Canada Confirms the Broad Discretion the CCAA Vests in the Supervising Courts Introduction Last year, the Supreme Court of Canada (SCC) upheld the Alberta Court of Appeal’s majority decision in Canada […]
President’s Message – January 2022
Written by Chris Dallas (Pacific Life) — Happy New Year everyone! As we approach two full years in a strange new work environment, I wanted to say hello to everyone in the ACIC — and in particular our new members who joined over the last year or two (who many of us have not yet […]
Southwest Update – In re First River Energy, L.L.C.
Article courtesy of Andrew Thomison of Baker Botts L.L.P. In Deutsche Bank Tr. Co. Ams. v. U.S. Energy Dev. Corp. (In re First River Energy, L.L.C., 986 F.3d 914 (5th Cir. 2021), the court was asked to resolve a lien priority dispute between the lender to a bankrupt entity (the “Debtor”) that had purchased oil […]
Southern Update – In re: Darren E. Bryant
Article courtesy of Jeff Dutson of King & Spalding Under Georgia law, a creditor’s failure to include the debtor’s middle name on its financing statements, when his driver’s license had his full middle name, strongly indicated that its liens were invalid for purposes of the pending motion. In re: Darren E. Bryant, No. 20-70789 (Bankr. […]
Southern Update – Rubenstein v. Palatchi
Article courtesy of Jeff Dutson of King & Spalding The Georgia Court of Appeals reversed in part a grant of summary judgment finding that there was a genuine issue of material fact existed as to whether an officer misrepresented a company’s financial position and whether the lenders justifiably relied on information provided by the officer […]
Southern Update – Shorter Bros., Inc. v. Vectus 3, Inc.
Article courtesy of Jeff Dutson of King & Spalding Seller corporation entitled to recover full purchase price under asset purchase agreement from purchaser corporation’s owners. Shorter Bros., Inc. v. Vectus 3, Inc., No. 1190876, 2021 WL 2622054 (Ala. June 25, 2021). A company that owned delivery trucks and operated delivery routes (the “Seller”) entered into […]
Southern Update – Chisum v. Campagna
Article courtesy of Jeff Dutson of King & Spalding The Supreme Court of North Carolina, resolving a business dispute, ordered judicial dissolution of multiple limited liability companies, holding that the statute of limitations begins to run on a breach of contract claim upon notice to the non-breaching party and that nominal damages are sufficient to […]
Southern Update – Versailles Farm, Home & Garden, LLC v. Haynes
Article courtesy of Jeff Dutson of King & Spalding The lack of a future advances clause in a security agreement did not entitle junior creditor to a portion of the proceeds from the sale of tobacco crops. Versailles Farm, Home & Garden, LLC v. Haynes, No. 2020-CA-0626-MR, 2021 WL 519722 (Ky. Ct. App. Feb. 12, […]
Southern Update – In re Karcredit, LLC
Article courtesy of Jeff Dutson of King & Spalding The US Bankruptcy Court for the Western District of Louisiana held a corporate issuer of stock used as collateral for two loans liable to the first lender for breaching the express provisions of the terms of its merger agreement. In re: Karcredit, LLC., 630 B.R. 14 […]
Rocky Mountain/Western Update – Bank of New York Mellon v. 732 Hardy Way Trust
Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Ninth Circuit Holds That Lender May Rely on State Quiet Title Statute to Void Foreclosure Sale Made in Violation of the Automatic Stay In Bank of New York Mellon v. 732 Hardy Way Trust, 2 F.4th 1229 (9th Cir. […]
Rocky Mountain/Western Update – Guzman v. Johnson
Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Nevada Supreme Court Holds That Shareholders Must Refute Business Judgment Rule and Demonstrate Intentional Misconduct, Fraud or Knowing Violation of Law in Director Fiduciary Duty Suit In Guzman v. Johnson, 483 P.3d 531, 137 Nev. Adv. Op. No. 13 […]
Rocky Mountain/Western Update – In re Hawkeye Entertainment, LLC
Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Bankruptcy Court Grants Attorney’s Fees to Debtor Who Prevailed in Assumption Motion In In re Hawkeye Entertainment, LLC, 625 B.R. 745 (Bankr. C.D. Cal. 2021), the United States Bankruptcy Court for the Central District of California (the “Bankruptcy Court”) […]
Southwest Update – Morgan v. U.S. Bank Nat’l Ass’n
Article courtesy of Andrew Thomison of Baker Botts L.L.P. In Morgan v. U.S. Bank Nat’l Ass’n, No. 4:20-CV-00672, 2021 U.S. Dist. LEXIS 19122 (E.D. Tex. Feb. 2, 2021), the plaintiffs challenged the foreclosure of their homestead by the defendant, who had purchased the home loan from the plaintiffs’ original lender, by asserting, among other things, […]
October 2021 ACIC Committee Reports
Article courtesy of Amy C. Maloney of Morgan, Lewis & Bockius LLP Communications Committee The Communications Committee is responsible for communications among the College’s members and for communications between the College and the investment community at large. The Committee is responsible for preparing and publishing the College’s monthly newsletter, Private Notes. Among other items of […]
New England Update – Onthank v. Onthank
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP CT Court Holds that, under Doctrine of Substantial Performance, a Lender’s Mechanistic Compliance With Notice of Default Provision of a Note Was Not Required Where Borrowers Had Actual Notice of the Default and Noncompliance by Lender Did Not Result in Prejudice to the […]
New England Update – Eichler v. Healthy Mom, LLC
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP CT Court Holds that Noteholder Could Not Recover Damages for Borrower’s Failure to Pay Note at Original Maturity Where the Maturity Date was Extended and Events of Default were Waived by “Requisite Holders” in Accordance With Note Terms, Despite Noteholder Having Issued Demand […]
New England Update – Commercial Park Realty, LLC v. HR2-A Corp.
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP (1) Despite Misrepresentation by Borrowers, Lenders Not Able to Rely on Borrower’s Representation that Statutory Analysis Was Done Demonstrating Usurious Loans Were Capable of Repayment, for Exception to RI Usury Law; (2) Forbearance Agreement Release Didn’t Release Usury Claim Under “Coercive” Circumstances Where […]
August 2021 – Spotlight on New Members
Authored by Chiraag Kumar of MetLife Spotlight on New ACIC Members The ACIC has recently welcomed the following new members: Kaitlin Betancourt is a Vice President and Corporate Counsel in the legal department of the Chief Investment Office of Prudential Financial, Inc., where she provides legal advice to the Alternative Assets Group and Impact Investments […]
International Update – Canadian Update: The Supreme Court of Canada Explains the Parameters for Exercising Contractual Discretion in Good Faith
Authored by Danielle Maksimow of Norton Rose Fulbright Canadian Update: The Supreme Court of Canada Explains the Parameters for Exercising Contractual Discretion in Good Faith Introduction On February 5, 2021, the Supreme Court of Canada (the SCC) delivered its third decision in a trilogy of cases on the duty of good faith in contractual performance. […]
International Update – The English Restructuring Plan: A Year In Review
Authored by Tom Bannister, Lauren Pflueger, Emma Simmonds and Barry Russell, all of Akin Gump Strauss Hauer & Feld The English Restructuring Plan: A Year In Review A little over one year ago, on 26 June 2020, the Corporate Governance and Insolvency Act 2020 (the Act) came into force, bringing with it the most extensive […]
Southwest Update – Kamel v. Ave. Insights & Analytics LLC
Article courtesy of Andrew Thomison (of Baker Botts) Contract executed with an electronic signature held to be enforceable. In Kamel v. Ave. Insights & Analytics LLC, 2020 WL 4679574 (E.D. Tex. 2020), the Eastern District Court of Texas (the “Court“) was asked to decide, among other things, whether an electronic acknowledgment, rather than a physical […]
Southwest Update – Whitney Bank v. SMI Cos. Global
Article courtesy of Andrew Thomison (of Baker Botts) Collection actions taken by bank did not amount to tortious interference with borrower’s business relations. In Whitney Bank v. SMI Cos. Global, 949 F.3d 196 (5th Cir. 2020), the 5th Circuit Court of Appeals was called upon to review, among other things, a magistrate judge’s determination that […]
Rocky Mountain/Western Update – In re Claar Cellars LLC
Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) In re Claar Cellars LLC, 623 B.R. 578 (Bankr. E.D. Wash. 2021) Overview In In re Claar Cellars LLC, 623 B.R. 578 (Bankr. E.D. Wash. 2021), the United States Bankruptcy Court for the Eastern District of Washington (the “Bankruptcy […]
Rocky Mountain/Western Update – In re Gardens Regional Hospital and Medical Center, Inc.
Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) Gardens Regional Hospital and Medical Center Liquidating Trust v. State of California, and its Department of Health Care Services (In re Gardens Regional Hospital and Medical Center, Inc.), 975 F.3d 926 (9th Cir. 2020) Overview After Gardens Regional Hospital […]
Rocky Mountain/Western Update – In re Cuker Interactive, LLC
Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) In re Cuker Interactive, LLC, 622 B.R. 67 (Bankr. S.D. Cal. 2020) Overview In In re Cuker Interactive, LLC, 622 B.R. 67 (Bankr. S.D. Cal. 2020), Bankruptcy Judge Louise Adler confirmed the plan of reorganization of a solvent chapter […]
ACIC Fellows Find New Ways to Connect During Covid-19 Pandemic
By: Tekhara L. Silva, Day Pitney LLP Mid-morning every Tuesday, Rich Wasserman, a corporate finance partner in his 40th year of practice at Day Pitney LLP, logs into a virtual reading program to read to a first-grader in the Hartford Public School System. A long-time volunteer and regional board chair for the Read to a […]
Midwest Update – First Security Bank v. Buehne et al.
Article courtesy of Michael Robson (Greenberg Traurig, LLP) First Security Bank v. Buehne et al., 121,765 (Kan. Ct. App. Sept. 18, 2020). In a dispute between borrowers and a lender with a security interest in the borrowers’ business equipment, the Kansas Court of Appeals (the “Court”) found no strongly held public policy interest that would […]
Midwest Update – First State Bank Nebraska v. MP Nexlevel LLC
Article courtesy of Michael Robson (Greenberg Traurig, LLP) First State Bank Nebraska v. MP Nexlevel LLC, S‑19‑543. 309 Neb. 198, 2020 WL 5581733 (Sept. 18, 2020). The Nebraska Supreme Court (the “Court”) found that a state trial court erred in dismissing a secured lender’s action to collect on a third‑party accounts receivable assigned to the […]
Midwest Update – BMO Harris Bank N.A. v. Bullet Trans Co.
Article courtesy of Michael Robson (Greenberg Traurig, LLP) BMO Harris Bank N.A. v. Bullet Trans Co., 19‑cv‑4557, motion granted, 2020 WL 3447778 (N.D. Ill., 06/24/2020). In a dispute where a borrower defaulted on several commercial loans, the United States District Court for the Northern District of Illinois (the “Court”) held that the borrower had no […]
Spotlight on New ACIC Members Since August 2020
Article courtesy of Lisa Conmy (Foley & Lardner) The ACIC is thrilled to welcome the following new members since August 2020: Michael Urschel (King & Spalding) Jonathan Arkins (King & Spalding) Ryan McNaughton (King & Spalding) Katy Berger (King & Spalding) Ignacio Hirigoyen (Prudential) Brandon Van Balen (Genworth) Sobara Simon-Hart (MetLife) Katherine von Geldern (Symetra) […]
2021 Spring Investment Forum Teaser
A message from the co-chairs of the 2021 Spring Investment Forum, Heather Wenzel and Robin Lenarz: On behalf of the Board of Trustees and the Education Committee, co-chairs Heather Wenzel and Robin Lenarz invite you to connect virtually to the ACIC’s 2021 Spring Forum on April 14 and 15. Please join the ACIC Book Club […]
Mid-Atlantic Update – In re Areogroup Int’l, Inc.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) POLK 33 Lending, LLC v. THL Corp. Fin., Inc. (In re Areogroup Int’l, Inc., 2020 U.S. Dist. LEXIS 155442 (D. Del. August 27, 2020) Overview: This case concerns a dispute between two secured lenders regarding the allocation of proceeds from a sale of Aerogroup’s assets in a […]
Mid-Atlantic Update – In re Lehman Bros. Holdings Inc.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Lehman Bros. Special Fin. Inc. v. Branch Banking & Trust Co. (In re Lehman Bros. Holdings Inc.), 970 F.3d 91 (2d Cir. 2020) Overview: A Lehman Brothers affiliate that was party to a number of CDO transactions filed an adversary proceeding in bankruptcy court to recover approximately […]
Mid-Atlantic Update – In re Tribune Co.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) In re Tribune Co., 972 F.3d 228 (3d Cir. 2020) Overview: Holders of senior notes issued by the Tribune Company argued that the company’s plan of reorganization should not have been confirmed because it did not fully enforce subordination provisions in the indentures, and that the plan […]
2020 ACIC New Officers and Trustees
Article prepared by Bryan Cho (MetLife) —- Congratulations to each of the following new officers and trustees who were elected at the ACIC’s Virtual Fall 2020 Annual Meeting and Education Conference: Officers (For the 2020-2021 Period): President: Tina Smith (Thrivent Financial) Vice President 1: Christopher S. Dallas (Pacific Life Insurance Company) Vice President 2: Renée […]
Financial Liquidity and Business Restructuring in the wake of COVID-19
The protracted impact of COVID-19 on financial liquidity is due to reach an inflection point for European businesses. As lines of credit reach their limits and businesses begin to assess the long-term damage from a global lockdown, restructuring will be a priority discussion. As restructuring commences, it will be crucial to understand the effect on […]
Rocky Mountain/Western Update – In re Medina
Ronald E. Stadtmueller, Chapter 7 Trustee v. Sarkisian (In re Medina) B.R. (2020), 2020 WL 4742491 (B.A.P. 9th Cir. Aug. 14, 2020) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In In re Medina, the Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) held that “actual damages” were not required […]
Rocky Mountain/Western Update – Gunderson v. Weidner Holdings, LLC
Gunderson v. Weidner Holdings, LLC, 463 P.3d 315 (Colo. App. 2019) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In Gunderson v. Weidner Holdings, LLC, the Colorado Court of Appeals, the intermediate appellate court of the state of Colorado, held that the Uniform Commercial Code’s statute of limitations, not the general […]
Rocky Mountain/Western Update – Blixseth v. Credit Suisse
Blixseth v. Credit Suisse, 961 F.3d 1074 (9th Cir. 2020) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In Blixseth v. Credit Suisse, the Ninth Circuit Court of Appeals, for the first time, affirmed the validity of a narrowly tailored exculpation clause that released a lender from certain potential claims against […]
Southwest Update – Legacy Bank v. Fab Tech Drilling Equipment, Inc.
Priority Lienholder does not Waive Senior Security Interest by Failing to Exercise Remedies Prior to Junior Judgment Creditor Exercising Foreclosure Rights Article courtesy of Andrew Thomison (of Baker Botts) In Legacy Bank v. Fab Tech Drilling Equipment, Inc., 566 S.W.3d 922 (Tex. App. 2018), the Texas Court of Appeals (the “Court“), in an issue of […]
Southwest Update – In re: Hidalgo County Emergency Service Foundation v. Carranza
Bankruptcy Court Not Permitted to Issue Injunction Against SBA Administrator Article courtesy of Andrew Thomison (of Baker Botts) In In re: Hidalgo County Emergency Service Foundation v. Carranza, 962 F.3d 838 (5th Cir. 2020), the 5th Circuit Court of Appeals (the “Court“) was called upon to determine whether the bankruptcy court exceeded its authority when […]
Midwest Update: Stoebner v. Opportunity Finance, LLC, et al.
Article courtesy of Michael D. Robson (Greenberg Traurig) Stoebner v. Opportunity Finance, LLC, et al., 2018 WL 6055636, 66 BCD 127 (8th Cir. 2018). In a proceeding under Chapter 7 of the United States Bankruptcy Code (the “Code”), the United States Court of Appeals, Eighth Circuit, affirmed the grant of the Defendants’ motion to dismiss […]
Midwest Update: Tissue Technology, LLC v. Tak Investments, LLC
Article courtesy of Michael D. Robson (Greenberg Traurig) Tissue Technology, LLC v. Tak Investments, LLC, No. 18‑1835 WL 5318271 (7th Cir. 2018) In an investment dispute arising under an agreement to build $315 million worth of tissue mills, the United States Court of Appeals, Seventh Circuit (the “Court”), upheld a lower court decision that withheld […]
Midwest Update: U.S. v. Banyan, et al.
Article courtesy of Michael D. Robson (Greenberg Traurig) U.S. v. Banyan, et al., Nos. 17‑6410 & 17‑6493, 2019 WL 3540794 (6th Cir. 08/05/19). In a case before the 6th U.S. Circuit Court of Appeals (the “Court”), a split panel reversed the conviction of two parties for bank fraud arguing that the United States federal government […]
Midwest Update: In re Happy Jack’s Petroleum, Inc.
Article courtesy of Michael D. Robson (Greenberg Traurig) In re Happy Jack’s Petroleum, Inc., 2019 wl 2281610, 67 BCD 77 (Bankr. D. Neb. 2019). In a case of first impression before the U.S. Bankruptcy Court, District of Nebraska (the “Court”) analyzed whether the conversion of a bankruptcy case from a Chapter 11 bankruptcy (a “reorganization bankruptcy”) to […]
Mid-Atlantic Update: Trzaska v. L’Oreal USA, Inc. & L’Oréal, S.A.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Trzaska v. L’Oreal USA, Inc. & L’Oréal, S.A., 2020 WL 1082616 (D.N.J. March 5, 2020) The U.S. District Court for New Jersey affirmed a magistrate judge’s letter order denying an application to compel production of emails, finding that the emails were protected by attorney-client privilege. The emails […]
Mid-Atlantic Update: Kirschner v. J.P. Morgan Chase Bank, N.A.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Kirschner v. J.P. Morgan Chase Bank, N.A., et al., 2020 WL 2614765 (S.D.N.Y. May 22, 2020) Overview: Applying the so-called “family resemblance” test from Reves v. Ernst & Young, the U.S. District Court for the Southern District of New York found that notes issued to institutional investors […]
Mid-Atlantic Update: Ritzen Group, Inc. v. Jackson Masonry, LLC
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 205 L. Ed. 2d 419 (2020) Overview: The Supreme Court affirmed Sixth Circuit and lower court decisions holding that a bankruptcy court’s order denying relief from the automatic stay constitutes a final, immediately appealable order and […]
Current COVID-19 Topics in the Power Industry
Current COVID-19 Topics in the Power Industry By: Alex Smorczewski, Amy Maloney and Casey August Morgan, Lewis & Bockius LLP During this unprecedented time of global pandemic, the power industry has found itself under extraordinary pressures and been forced to confront many issues of first impression. Following is a brief treatment of several topics that […]
Southwest Update – Matter of Henry
Bankruptcy Court has Discretion to Refuse to Enforce Compelled Arbitration Provision in Proceedings Seeking Enforcement of Discharge Injunction In Matter of Henry, 944 F.3d 587 (5th Cir. 2019), the 5th Circuit Court of Appeals was called upon to determine whether the bankruptcy court erred in refusing to enforce an arbitration agreement and to compel arbitration […]
Pacific/Rocky Mountain Update – In re Southern Inyo Healthcare District
Southern Inyo Healthcare District v. Optum Bank, Inc. (In re Southern Inyo Healthcare District), 2020 WL 634295, Adv. No. 17-01077-A (Bankr. E.D. Cal. Feb. 10, 2020) Overview A debtor healthcare district objected to a proof of claim filed by a bank and sought a declaratory judgment that the bank’s security interests were invalid because the […]
Pacific/Rocky Mountain Update – In re Mayacamas Holdings LLC
Lynn Schoenmann, Chapter 7 Trustee v. Carmel Financing, LLC (In re Mayacamas Holdings LLC), 608 B.R. 522 (Bankr. N.D. Cal. 2019) Overview: Granting in part and denying in part a motion to dismiss an adversary proceeding brought by a chapter 7 trustee, the United States Bankruptcy Court for the Northern District of California held that […]
Pacific/Rocky Mountain Update – Fed. Home Loan Bank of Seattle v. Credit Suisse Sec. (USA), LLC
Fed. Home Loan Bank of Seattle v. Credit Suisse Sec. (USA), LLC, 194 Wn.2d 253, 449 P.3d 1019 (Wash. 2019) Overview In a state securities fraud case arising out of investment losses caused by losses on subprime residential mortgage-backed securities, the Washington State Supreme Court held that a plaintiff suing for misrepresentation in a private […]
Pacific/Rocky Mountain Update – In re 3MB, LLC
In re 3MB, LLC, Case No. 18-14663-B-11, 2019 WL 6701420 (Bankr. E.D. Cal. Dec. 5, 2019). Overview: The United States Bankruptcy Court for the Eastern District of California (the “Bankruptcy Court”) held that a provision in a promissory note, governed by California law, that provided for default interest at the rate of 4% per annum […]
Southwest Update – Magna Equities II, L.L.C. et al. v. Heartland Bank
Court of Appeals Affirms Summary Judgment Motion in Favor of Bank on Fraud Claim In Magna Equities II, L.L.C. et al. v. Heartland Bank, 787 Fed.Appx 223 (5th Cir. 2019), the 5th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of Heartland Bank (“Heartland”) on an action claiming, among […]
Postpetition Interest on Unsecured Claims: Lessons for Distressed Debt Investors In Light of the PG&E Decision
Republished with permission from Proskauer. Please click here for the original article. — Postpetition Interest on Unsecured Claims: Lessons for Distressed Debt Investors In Light of the PG&E Decision Key Takeaways: Unsecured claimholders of a solvent debtor are entitled to postpetition interest on their claims, although the solvent debtor exception has been questioned in other […]
Teaser for the 2020 Spring Investment Forum
On behalf of the Board of Trustees and the Education Committee, we invite you to join us April 16-17 at the Four Seasons in Chicago for the ACIC’s 2020 Spring Forum. Our musical and legal journey will take us across generations as we explore a variety of issues in the private placement world. We have […]
Midwest Update – Koss Corp. v. Park Bank
Koss Corp. v. Park Bank, No. 2016AP636, 2019 WL 350386, 385 Wis.2d 261 (Wis. 01/29/19) In an action that created a new standard of faith in Wisconsin under its Uniform Fiduciaries Act (“UFA”), the Supreme Court of Wisconsin (the “Court”) ruled in favor a bank involving the unauthorized disbursement of funds due to fraudulent actions. The […]
Midwest Update – KSA Enterprises, Inc. v. BB&T
KSA Enterprises, Inc. v. BB&T, No. 17‑6132, 2019 WL 181665, 761 Fed.Appx. 456 (6th Cir. 01/14/19) In an action regarding an appeal of a five‑count claim alleging (1) breach of contract, (2) fraudulent misrepresentation, (3) negligent misrepresentation, (4) fraudulent inducement, and (5) unjust enrichment, the 6th U.S. Circuit Court of Appeals (the “Court”) affirmed the Western District of Kentucky’s decision in favor […]
Midwest Update – Jet Midwest Intl v. Jet Midwest Group
Jet Midwest Int’l v. Jet Midwest Group, No. 18‑1311, 932 F.3d 1102 (8th Cir. 08/02/19) In a dispute involving the recovery of attorney fees between business entities from diverse jurisdictions involved in cross‑border transactions, the 8th U.S. Circuit Court (the “Court”) took up a case reminiscent of a law school civil procedure class. Jet Midwest Group […]
Midwest Update – In re I80 Equip., LLC
In re I80 Equip., LLC, 2019 WL 4296751, 67 BCD 177 (7th Cir. 2019) In a matter of first impression in the 7th U.S. Circuit Court of Appeals (the “Court”) deciding whether a Chapter 7 trustee could avoid a creditor’s lien on grounds of an insufficient financing statement, the Court reversed and remanded the bankruptcy court’s […]
Mid-Atlantic Update – Contrarian Funds, LLC v. Woodbridge Group of Companies, LLC
Contrarian Funds, LLC v. Woodbridge Group of Companies, LLC (In re Woodbridge Group of Companies, LLC), 606 B.R. 201 (D. Del. 2019) Overview: A distressed debt investor purchased promissory notes from the original noteholders in violation of anti-assignment provisions in the notes and the related loan agreements. The investor argued that section 9-408 of the […]
Mid-Atlantic Update – Oxford University Bank v. Lansuppe Feeder, LLC
Oxford University Bank v. Lansuppe Feeder, LLC, 933 F.3d 99 (2d Cir. 2019) Overview: Holders of junior notes sued for rescission of the indenture under which the notes were issued on the grounds that they were entitled to rescission under Section 47(b) of the Investment Company Act (the “Act“) because the issuer violated the Act […]
ACIC New Members Since August 2019 – Biographies
Andrew Christianson is a shareholder in Reinhart Boerner Van Deuren’s Employee Benefits, Institutional Investor Services, Corporate and Securities practices. Andy advises domestic and non-U.S. governmental pension plans, insurance companies and other institutional investors in structuring and negotiating private equity, hedge fund and alternative investments. Andy also represents public and closely held companies on a range […]
The Ultra Make-Whole Saga Continues
In the latest development in the Ultra make-whole saga, on November 26, 2019 the United States Court of Appeals for the Fifth Circuit granted the Noteholder’s Motion for Reconsideration or Rehearing En Banc, reconsidered its January 17, 2019 decision (the “Original Fifth Circuit Opinion”) and issued a substitute opinion (the “New Fifth Circuit Opinion”). Our prior updates on the […]
ACIC New Officers and Trustees – 2023
Nominating Committee Report — 2023
2019 Annual Meeting and Educational Conference Summary
2019_meeting_and_conference_summary.pdf
Proposed Amendments to the SEC’s Advertising Rule
sec_proposes_a_principles-based_advertising_rule_for_the_way_investment_advisers_private_fund_managers_advisory_clients_and_fund_investors_live_now.pdf
Midwest Update – FirstMerit Bank, N.A. v. Kloysner Grp.
FirstMerit Bank, N.A. v. Kloysner Grp., LLC, No. 16‑cv‑4930, 2017 U.S. Dist. LEXIS 183695 (N.D. Ill. Nov. 6, 2017) In an action for violations of various sections of the Illinois Uniform Fraudulent Transfer Act, the District Court for the Northern District of Illinois (the “Court”) denied the Defendants’ Motion to Dismiss for lack of subject‑matter jurisdiction […]
Southwest Update – Fishback Nursey, Incorporated; Surface Nursey, Incorporated v. PNC Bank
Fifth Circuit determines priorities of liens on agricultural products In Fishback Nursey, Incorporated; Surface Nursey, Incorporated v. PNC Bank, National Association, 920 F.3d 932 (5th Cir. 2019), the Fifth Circuit Court of Appeals was tasked with determining the relative priority of liens on agricultural products claimed by PNC Bank, National Association (“PNC”), Fishback Nurseries, Incorporated (“Fishback”) […]
Southwest Update – Godoy v. Wells Fargo Bank
Texas Supreme Court holds that waiver of the statue of limitations with respect to anti-deficiency laws was not void against public policy In Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531 (Tex. 2019), the Texas Supreme Court considered whether certain statute of limitation waivers contained in a guaranty agreement were void against public policy. GDG […]
Rocky Mountain/Western Update – Diamond Enterprises, Ltd. v. [an individual with initials MY]
Diamond Enterprises, Ltd. v. [an individual with initials MY], BAP No. CC-18-1337-FLKu (B.A.P. 9th Cir. July 10, 2019) In Diamond Enterprises, Ltd. v. [an individual with initials MY (“MY”)], the Ninth Circuit Bankruptcy Appellate Panel (the “BAP”) held that, where a bankruptcy court enters an order modifying a confirmed plan in a material way, the […]
Rocky Mountain/Western Update – Odyssey Reinsurance Co. v. Nagby
Odyssey Reinsurance Co. v. Nagby, 2019 U.S. Dist. LEXIS 111794 (S.D. Cal. July 2, 2019) In Odyssey Reinsurance Co. v. Nagby, the United States District Court for the Southern District of California found the sole directors and owners of a defunct insurance agency liable for constructive fraudulent transfer under California’s version of the Uniform Fraudulent Transfer […]
Rocky Mountain/Western Update – Hernandez v. Enterprise Rent-a-Car Co.
Hernandez v. Enterprise Rent-a-Car Co., 2019 Cal. App. LEXIS 618 In Hernandez v. Enterprise Rent-a-Car Co., the California Court of Appeal, First Appellate District, affirmed the trial court’s grant of summary judgment in favor of defendant, Enterprise Rent-a-Car, holding that Enterprise, as asset purchaser, was not liable as successor-in-interest (through two separate acquisition transactions, one non-bankruptcy […]
Primer on the California Consumer Privacy Act of 2018
The sweeping California Consumer Privacy Act of 2018 (the “CCPA“) takes effect on January 1, 2020 and the state will begin enforcement as of July 1, 2020. By granting California consumers expanded control over their personal information, the law imposes strict and novel obligations on all qualified businesses that gather, use or sell such data. The […]
Midwest Update – Cedar Square L.L.C. v. TCF National Bank
Cedar Square L.L.C. v. TCF National Bank, No. 16-1076, 2018 WL 4496327 (E.D. Wisc. Sept. 19, 2018) In a dispute involving alleged liability over a bank’s refusal to grant a loan for development of a construction project, the U.S. District Court, Eastern District of Wisconsin (the “Court”) granted defendant’s 12(b)(6) motion to dismiss in part, […]
Midwest Update – In re Chernushin
Cohen v. Chernushin et al, (In re Chernushin), 2018 WL 6729716, 66 BCD 159 (10th Cir. 2018) In an action involving an adversary proceeding commenced by a Chapter 7 trustee to sell certain property, the United States Court of Appeals for the 10th Circuit (the “Court”) affirmed the U.S. District Court, District of Colorado, who […]
Midwest Update – Desai v. Hanmi Bank
Desai v. Hanmi Bank, No. 1803621, 2018 WL 5264223 (E.D. Ill. Oct. 23, 2018) In a suit regarding a bank’s potential breach of loan documents, breach of good faith and fair dealing, and failure to fulfill duties of a receiver, the US District Court, Northern District of Illinois (the “Court”) dismissed the claims by granting the […]
Mid-Atlantic Update – In re Energy Future Holdings Corp.
In re Energy Future Holdings Corp., et al. v. Morgan Stanley Capital Group, Inc., No. 18-1957, 2019 WL 2535700 (3d Cir. June 19, 2019) Overview: The Court of Appeals for the Third Circuit held that adequate protection payments and bankruptcy plan distributions payable to two groups of creditors should be allocated pro rata based on […]
Mid-Atlantic Update – In re Paragon Offshore PLC
In re Paragon Offshore PLC, 598 B.R. 761 (D. Del. 2019) Overview: The Bankruptcy Court for the District of Delaware denied a motion to determine that the Court did not have power under Article III of the U.S. Constitution to issue a final order on a core fraudulent transfer claim brought against a non-claimant defendant. […]
Mid-Atlantic Update – In re Aegean Marine Petroleum Network Inc.
In re Aegean Marine Petroleum Network Inc., 599 B.R. 717 (S.D.N.Y. 2019) Overview: The Bankruptcy Court for the Southern District of New York (the “Court“) denied debtors’ request to release potential claims of third parties on a nonconsensual basis as part of the debtors’ chapter 11 plan. The Court found that, under Second Circuit precedent, […]
Teaser for the 2019 Annual Fall Meeting and Conference
Together with the Board of Trustees and the Education Committee, co-chairs Nicole Windsor and Alfredo Cantoral invite you aboard as we embark on a grand adventure through key destinations on an insurance company’s investment roadmap, together with the ACIC’s 2019 Annual Meeting, on October 17th and 18th. Our adventure will begin at the Grand Central […]
A Primer on the Qualified Opportunity Zone Regulations
A Primer on the Qualified Opportunity Zone Regulations The December 2017 “Tax Cuts and Jobs Act” offers significant tax incentives for “qualified opportunity funds” investing in “qualified opportunity zones” (“QOZ”)[1]. The Department of Treasury issued the first set of Opportunity Zone regulations on October 19, 2018 and a second set of opportunity zone regulations on […]
Southwest Update – In re: Ultra Petroleum Corp.
Fifth Circuit Holds Make-Whole Premium Should be Disallowed under Bankruptcy Code In In re: Ultra Petroleum Corp., Case No. 17-20793 (5th Cir. Jan. 17, 2019), the Fifth Circuit Court of Appeals held that certain creditors (the “Unsecured Creditors”) of Ultra Resources, Inc. (“Debtor”) were not impaired for purposes of voting on a reorganization plan even though […]
Southwest Update – Legacy Bank v. Fab Tech Drilling Equipment
Texas Court upholds interest of Senior Secured Creditor against Garnishment by Junior Creditor In Legacy Bank v. Fab Tech Drilling Equipment, Inc, 2018 WL 6928971 (Tex.App. – Eastland), in an issue of first impression, the Court of Appeals of Texas evaluated whether garnishment of a debtor’s accounts receivable by a junior judgment lien creditor would trump […]
Rocky Mountain/Western Update – Cohen v. TNP 2008 Participating Notes Program
Cohen v. TNP 2008 Participating Notes Program, LLC, 31 Cal.App.5th 840 (2019) An attorney for holders of promissory notes issued by a real estate investment company lacked standing, as agent of his client-investors, to enforce arbitration agreements in the promissory notes subscription agreements. However, the real estate investment company’s parent company exercised sufficient control over […]
Rocky Mountain/Western Update – In re Pettit Oil Co.
In re Pettit Oil Co., No. 17-60081, 2019 WL 1104662 (9th Cir. Mar. 11, 2019) A trustee, exercising her “strong-arm” powers as a hypothetical judicial lien creditor, had priority over a petroleum company that delivered fuel to a debtor on a consignment basis, both in consigned fuel held in debtor’s tanks and in accounts receivable […]
Mid-Atlantic Update – In re Orexigen Therapeutics, Inc
In re Orexigen Therapeutics, Inc., 596 B.R. 9 (2018), United States Bankruptcy Court, D. Delaware Overview: The Bankruptcy Court for the District of Delaware denied a motion by an alleged creditor seeking an order determining that it was entitled to disputed funds based on its right of setoff under state law. The Court held that, […]
Mid-Atlantic Update – In re Taberna Preferred Funding IV
In re Taberna Preferred Funding IV, Ltd., 594 B.R. 576, United States Bankruptcy Court, S.D. New York Overview: The Bankruptcy Court for the Southern District of New York granted a motion to dismiss in an involuntary chapter 11 petition against a structured finance entity known as a collateralized debt obligation (CDO) filed by certain of its […]
Mid-Atlantic Update – In re Lehman Brothers Holdings Inc.
In re Lehman Brothers Holdings Inc., 591 B.R. 153 (2018), United States Bankruptcy Court, S.D. New York Overview: The Bankruptcy Court for the Southern District of New York denied a motion to permit a plan administrator to cause a debtor to issue preferred stock under the terms of its pre-effective date charter in substitution for Enhanced […]
Spotlight on New Members Since June 2018
The ACIC is pleased to introduce our new members since June 2018: Paul Epstein is a partner in the Project Development & Finance practice of Shearman & Sterling. He focuses on complex financings, projects and acquisition matters in the infrastructure and energy sectors, both domestically and internationally. Paul represents lenders and issuers including corporations, insurance companies, […]
