News

Article courtesy of Jeff Dutson of King & Spalding   Individual shareholders signing a pledge agreement in their personal capacity agreed to be held personally liable for all amounts due under a loan agreement, including at the statutory rate of interest. DSLRPros, Inc. v. Lalo, — So.3d –, 2021 WL 5348890 (Nov. 17, 2021) An […]

Article courtesy of Chiraag Kumar (MetLife) Among other new members who have joined since February 2022, the ACIC is thrilled to welcome: Taylor Courtade (Baker Botts) Gregory (Greg) LaHood (Mayer Brown) Eric Larson (Greenberg Traurig) Jeff Leider (Milbank) Clara Pauw (Chapman & Cutler) David Shim (Morgan, Lewis & Bockius) To learn more about our esteemed […]

Contributed by Tom Bannister and Lauren Pflueger (Akin Gump) _ Corbin & King: First Judicial Consideration of the English Moratorium In June 2020, the Corporate Insolvency and Governance Act 2020 (the Act) introduced a new standalone moratorium process in England, alongside the restructuring plan and certain temporary measures in response to the pandemic. Over 18 […]

Contributed by Danielle Maksimow (Norton Rose Fulbright Canada) _ Montréal (City) v. Deloitte Restructuring Inc. (City v Deloitte) Canadian Update: The Supreme Court of Canada Clarifies the Court’s Discretion to stay Pre-Post Set-off Claims under the Companies’ Creditors Arrangement Act Introduction In December 2021, the Supreme Court of Canada (the “SCC”) confirmed the majority decision […]

Written by Chris Dallas (Pacific Life) _ So far, 2022 seems to be shaping up better, or at least different, than 2021 for many of us. As we start to return to the office, many of us are faced with the tradeoffs between working at home or in the office. On the plus side, it […]

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 […]

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 LEXIS 36131 (5th Cir. December 8, 2021) (unpublished opinion), the court held that a bank’s lien on a residence survived an HOA […]

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”) […]

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 […]

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 […]

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 […]

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, […]

Committee Reports compiled by Sarah Olson of Thrivent.   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 interest to the […]

Article courtesy of Jeff Dutson of King & Spalding   In first impression appraisal judgment case, with an underlying conflicted transaction, the Supreme Court of North Carolina gives wide latitude to trial courts determining ‘Fair Value’ under MBCA based N.C.G.S §55-13-22. Reynolds American Inc. v. Third Motion Equities Master Fund Ltd., 866 S.E. 2d 869 […]

Article courtesy of Jeff Dutson of King & Spalding   Issue of triable fact exists as to whether there was a mutual departure from the terms of a forbearance agreement when the bank repeatedly accepted late, partial payments and later sought to exercise remedies. Underwood v. Colony Bank, No. A21A1639, 2022 WL 414579 (Ga. Ct. […]

Article courtesy of Jeff Dutson of King & Spalding   Individual shareholders signing a pledge agreement in their personal capacity agreed to be held personally liable for all amounts due under a loan agreement, including at the statutory rate of interest. DSLRPros, Inc. v. Lalo, — So.3d –, 2021 WL 5348890 (Nov. 17, 2021) An […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP United States Bankruptcy Court for the District of Massachusetts holds that under the standard for equitable subordination, the Debtors’ allegations that the Lender’s aggressive actions to advance the Lender’s acquisition of the Debtors’ properties harmed the Debtors and their other creditors were sufficient […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP   Connecticut Superior Court finds bank liable under Article 4A of the UCC for processing a fraudulent wire transfer request from email address impersonating a customer’s authorized representative due to bank’s failure to comply in good faith with its existing security protocols. Precision […]

Article courtesy of Jeff Dutson of King & Spalding   The Georgia Court of Appeals agreed that Siddhartha Mookerji, founder of Software Paradigms International Inc., was entitled to the compensation over the objection of SPI Holdco, LLC which was acquired in 2017 by private equity group Tower Arch Capital. SPI Holdco, LLC v. Mookerji, 864 […]

Article courtesy of Jeff Dutson of King & Spalding   Making its best Eerie “guess,” Fifth Circuit finds that Texas law requires more than proof of undercapitalization to survive a defendant’s motion for summary judgment but leaves open the question of whether it is possible to pierce the veil of a non-profit corporation in Texas. […]

Article courtesy of Jeff Dutson of King & Spalding   As a matter of first impression, the Alabama Supreme Court held that the elapsing of a decade following entry of judgment and judgment creditor’s failure to revive the judgment rendered the fraudulent-conveyance claim moot. 623 Partners, LLC v. Bowers, 2021 WL 4129413 (Ala. 2021) In […]

Article courtesy of Nicholas Dumas (Aflac Global Investments) The ACIC is thrilled to welcome the following new members since August 2021: John Beck (Hogan Lovells) Nicholas Dumas (Aflac Global Investments) Inderveer Hothi (Akin Gump) Niki Khatami (SLC Management) Sarah Challen McKee (Akin Gump) Ron Silverman (Hogan Lovells) Sarah Stanton (Northwestern Mutual) Issa Yesufu (Northwestern Mutual) […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) Sauter v. Brack, No. 20A MI 751, 2020 WL 5104870 (Ind. Ct. App. March 31, 2020) In a dispute between the guarantor of a promissory note that was subordinated to a previously granted commercial loan and the junior lender, the Indiana Court of Appeals (the “Court”) held […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) In re 3P Highstown, LLC, 631 B.R. 205 (Bankr. D.N.J. 2021) Overview: On creditor Hightstown Enterprises, LLC’s motion seeking dismissal, the Bankruptcy Court for the District of New Jersey dismissed a voluntary chapter 11 petition of the debtor 3P Hightstown, LLC […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) In re Purdue Pharma, L.P., 2021 Dist. LEXIS 242236 (S.D.N.Y. Dec. 16, 2021) Overview: The U.S. Bankruptcy Court for the Southern District of New York confirmed a chapter 11 plan of Purdue Pharma L.P. and its debtor affiliates which provided, among […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) Wells Fargo Bank, N.A. v. Hertz Corp. (In re Hertz Corp.), 2021 Bankr. LEXIS 3491 (Bankr. D. Del. Dec. 22, 2021) Overview: The Hertz debtors filed a motion to dismiss unsecured notes indenture trustees’ complaint seeking to recover make-whole premium and/or […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) Kirschner v. Large S’holders (In re Tribune Co. Fraudulent Conveyance Litig.), 10 F.4th 147 (2d Cir. 2021) Overview: Bankruptcy litigation trustee brought fraudulent conveyance and other claims on behalf of creditors against shareholders who sold their stock in the Tribune Company’s […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Hitz Restaurant Group, 616 B.R. 374, 2020 WL 2924523 (Bankr. N.D. Ill. 2020) In a bankruptcy proceeding relating to the interpretation of a force majeure clause in a restaurant lease (the “Lease”) in the Covid 19 pandemic (“Covid 19”), the United States Bankruptcy Court for […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Murray Metallurgical Coal Holdings, LLC et al., 2020 WL 1307378, 68 BCD 143 (Bankr. S.D. Ohio 2020) Overruling an objection brought by two employee benefit funds, the Southern District of Ohio Bankruptcy Court (“Court”) held that a debtor in possession may pay prepetition claims of […]

A message from the co-chairs of the 2021 Spring Investment Forum, Noelle Sproul (Nuveen) and Charles Calloway (Chapman & Cutler): On behalf of the Board of Trustees and the Education Committee, we invite you to join us for the ACIC’s 2022 Spring Investment Forum, to be held April 7-8, 2022 at the Four Seasons Hotel […]

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

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 […]

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 […]

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 […]

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 […]

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. […]

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 […]

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 […]

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 […]

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, […]

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 […]

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. […]

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 […]

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”) […]

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, […]

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 […]

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 […]

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 […]

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 […]