Below are my twitter posts since my last post of June 27 of 41 recent posts of bankruptcy cases and commentary, along with 6 other items of general interest.  RSS Feeds are also available.

The insert graphic contains corporate high-tech organizational charts from Bonkers World.

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Bankruptcy Cases

  • New Bankruptcy Litigation Blog Post: 44 BK Tweets of June 20-26 & Links to Howard Marks’ book, The Most Important Thing.
  • B-MS-"2 working principles" of Twiqbal-plausible claims & rule that all allegations are true doesnt apply to legal concl.
  • B-CO: B of A involuntary dismissed; mere taxpayers lack standing to file §303 involuntary under "Gov’t of People" theory.
  • BK-CO reviews circuit split on whether §109 ineligibility as a debtor deprives a BK Ct of subject-matter jurisdiction.
  • 6th: Debtors’ assertion on record of abandonment of claims ineffective absent notice & hearing per Rule 6007 & §554(a).
  • 2d: 1st impression-§546(e) protects as "settlement payments" issuer’s payments to redeem commercial paper pre-maturity.
  • Strong dissent on 2d Cir. op. extending the §546(e) exemption to all comm. paper redemptions pre-maturity using the customary DTC mechanism.
  • 7th: Motion to deny bank right to credit-bid @ plan auction "lacks crucial check ag. undervaluation" & rightly rejected.
  • B-FL: Motions in limine are disfavored & if evidence isnt clearly inadmissible then rulings shd be deferred until trial.
  • BK-PA: Legal error, if not challenged per Rule 59, is w/in the province of appeals & cant be addressed under Rule 60(b).
  • BK-KY: Mandatory abstention inapplicable to core proceedings (i.e., "arising under" the Code or "arising in" a BK case).
  • B-Utah reminds only ch 7 trustee in corp case can represent dbtr once trustee appointed bec agent req’d for corp action.
  • B-TX rules it has authority to enter ch 15 pre-recognition prelim inj to protect non-debtor guarantor subs ag. US suits.
  • BK-IL reminds: marriage dissolution & prop. settlement can create constructive trust removing property from the estate.
  • B-IL: Lien attaching in preference period to debtor’s equitable interests in another’s property rights is preferential.
  • Ungaretti & Harris George Mesires reviews 7th Cir op. that a secured cr. can credit bid its claim in a reorg plan sale.
  • SDNY: PA cts recognize aiding & abetting a breach of fiduciary duty; constructive knowledge is the proper knowledge std.
  • SDNY: Ct-appointed appraiser akin to a BK Trustee and liability limited to intentional or grossly negligent misconduct.
  • B-MD reviews splits re interplay bet. §542(a) & §549 turnover actions, holding §542 inapplicable to postpet. transfers.
  • B-TX: BK Venue ok in Houston TX where LLC’s sole member makes decisions even if assets, domicile, & residence are in SC.
  • B-NY reviews §511 special BAPCPA tax claim provisions & inapplic. of Till in ch. 13 plan to lower statutory int. rate.
  • B-SDNY-Investors in Madoff feeder funds aren’t "customers" under SIPA based solely on their ownership int. in the funds.
  • EDNY reviews dearth of authority for fed. ct. sitting in equity to authorize Receiver’s Certificates w/priming lien rts.
  • D-NV: 2 alternative tests in 9th to see if action is an exercise of police power: "pecuniary purpose" & "public policy".
  • D-NV: CA enforcement action for bribes, unlic. sec. sales & unfair competition exempted as police powers per §362(b)(4).
  • 7th: With 2 exceptions, agreements in IL to indemnify against intentional misconduct are void as against public policy.
  • ED-MI: Isolated & contradictory response in ans. to adv. cplt isn’t binding jud. adm. to material fact in underlying BK.
  • B-CA allows 13% of expert’s fees for going beyond facts re interest rates & for condescending lecture of Ct. re feasib.
  • B-CA: Oversecured creditor not entitled to interest at default rate where its claim is paid in full under a ch. 11 plan.
  • B-CA: Bank atty fees of $300K are in line w/fees of debtor’s counsel & reasonable for protecting a $16MM secured claim.
  • B-TN: Agr.’s not prohibiting Debtor from commingling clients’ funds doesn’t mean commingled funds are prop. of estate.
  • B-NE: Labor secy’s enforcing wage & labor stds exempt from stay per §362(b)(4) if only fixing-not enforcing-money jdgmt.
  • BK-TX: Per 5th, Ct should consider prospective & retrospective views re benefits to estate for allowing fees under §330.
  • BK-IL examines in well-cited opinion the "frivolous" and "improper purpose" prongs of a successful Rule 9011(b) claim.
  • B-FL: Ponzi scheme presumption of fraudulent intent only arises when transfer was made "in furtherance of" Ponzi scheme.
  • B-FL: Ponzi scheme operation is-by definition-insolvent & operating w/unreasonably small capital in fraudulent tsf case.
  • B-OR: Per §365(d)(5), administrative claim given to postpetition commercial rent claims regardless of benefit to estate.
  • D-IL reviews jud. estoppel & standing of dismissed ch 13 dbtr to prosecute pers. inj. claim not disclosed in schedules.
  • B-AZ reviews diversity citizenship of postconfirm liq. trust: based on the trustee alone & doesnt include beneficiaries.
  • B-AZ: Post-confirm JD exists bec the plan contemplates claim pursuit by liq trust; thus it’s integral to plan execution.
  • B-AZ: Equitable remand per 28 USC §1452(b) doesn’t apply to claims removed on diversity JD grounds under 28 USC §1441.

 Topics of General Interest 

  • Put this in the "there but for the grace of G-d go I" department — In re: The passing of a Skadden associate:
  • Read Legal Theory Blog’s Lexicon on "Principles in Constitutional Theory."
  • Read Justice Ginsburg’s sharp comments on her good friend (politics & con. law aside) Justice Scalia & his recent term.
  • The effectiveness of QE2 reviewed at the Econobrowser, which concludes: "the Fed did avoid making our problems worse."
  • WAPO article on problems in the commercial RE mkt: securitized loan delinquencies near 10% & $350 billion in distress.

Thanks for reading!

© Steve Jakubowski 2011