First, many thanks to the 1,700 unique visitors who viewed 3,000 web pages this past week (mostly my two posts on Stern v. Marshall).  According to my Google Analytics and Lexblog stats packages, visitors included the Supreme Court itself (10 times), courts from every federal circuit and several states, many from the AmLaw 200, and several academic and governmental organizations.  Such overwhelming support is what keeps me motivated to find something interesting to say


–relatively free of typos and run-ons–at 4:30 a.m., and I’m grateful for it.

Back now to the meat and potatoes (or macaroni and cheese) of a bankruptcy lawyer’s existence.  Below are my twitter posts since my last post of June 19 of 41 recent bankruptcy cases and commentary and 3 news items that might interest you.  RSS Feeds are also available.

The cover image is from Howard Marks’ first book, published in May by Columbia University Press, entitled The Most Important Thing.  It’s a favorite of the Distressed Debt Investing blog, and you can learn more from it by reading this book review from a seasoned pro and this book review from an unseasoned one.  You also can view excerpts from it on’s website.  Alternatively, take Warren Buffett’s word for it; who said: “When I see memos from Howard Marks in my mail, they’re the first thing I open and read.  I always learn something, and that goes double for his book.”

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Bankruptcy Cases

  • Read my latest BK Lit. Blog post-US Supreme Court Bankruptcy Watch: Readying for Stern v. Marshall-A Bombshell or a Dud?
  • Tom Goldstein predicts Breyer op. & SCOTUS reversal for Anna Nicole. I agree, with a remand on 157(b)(5) issue (Tr.).
  • B-TX: Equity dilution & exprop. of value from equity for benefit of controlling SH may be direct, not derivative, claim.
  • B-FL: Dbtr cant shorten ch 13 plan term below applic. commitment pd. if ttee objects unless all unsec claims fully paid.
  • BK-SDNY: Cr.entitled to postpetition default interest ag. solvent debtor even though plan reinstated its loan per §1124.
  • BK-PA: Pitt Corning plan not confirmed bec channelling injunction covers indep non-deriv claims & plan not ins. neutral.
  • D-DC: Phillipine Airlines is stingy, w/shifty explanations for not paying Sununu’s fees, but it has no contract liability.
  • B-IL: Motion to dismiss granted on §523(a)(4) cplt ag. D&O under 2011 7-Cir precedent that a corp. fiduc. ≠ a 523 fiduc.
  • See “A Cram Session on Cramdown Interest Rates” by Adam Strochak on the Weil Bankruptcy Blog, w/ chart of 28 key cases.
  • BK-KS: Well-cited op. reviews relation back doctrine & stds for amending a cplt under FRCP 15(c) in an avoidance action.
  • 5-4 in Stern v. Marshall AFFIRMING 9th cir. Complete victory for Pierce Marshall. Roberts op./Breyer dissent. Op here:
  • EDNY w/draws ref of atty mal case so Ct can get familiar w/facts & law before trial & benefit of Magistrate involvement.
  • BK-SDNY approves WARN class action certif & settlement @ 17% of pot. liab. in postpet adv. for prepetition layoffs.
  • BK-UT compares & contrasts each element of the “good faith” purchaser / transferee defense under §§ 549(c) & 550(b).
  • B-MN reminds: A party isnt an initial transferee per §550 if it’s an agent lacking authority over the principal re funds.
  • Best summary I’ve seen analyzing Stern v. Marshall on Steve Sather’s Texas Bankruptcy Lawyers’ Blog:
  • Blog post-SCOTUS’s Bombshell Op. in Stern v. Marshall Draws the Line Ag. Incremental Erosion of Art. III Judicial Power.
  • Weil Bankruptcy Blog examines the admissibility of an examiner’s report under federal evidence rules and specific cases.
  • BK-DE rejects dismissal motion in preference case for lack of personal jurisdiction based on hardship & inconvenience.
  • B-IL: No sov. immunity to IRS in §544(b)(1) action on theory that IL law doesn’t allow unsec creditor to sue US for same.
  • D-NJ: Junior out-of-the-money lien is not rendered void under §506(d) as long as the underlying claim itself is allowed.
  • BK-PA: 30-day time limit in §362(e) doesn’t also encompass the time for the Court to reconsider its lift stay decision.
  • B-GA reviews split re docs req’d for assignee of large #s of credit card debts to support debt claimed in proof of claim.
  • 1st: Unsecured senior debt holders have no priority over juniors on postpetition interest accruals disallowed by BK law.
  • B-IL: Def. in post-confirmation action who’s not a creditor lacks standing to challenge Plan’s not reserving the action.
  • BK-KY: Focus under a Rule 60(b)(1) analysis of “excusable neglect” is the movant’s conduct, not the opposing party’s.
  • B-TX:Attorneys signing proofs of claim for clients put themselves @ risk of disqualification by becoming a fact witness.
  • BK-IL: Because 3d mortgage lien is wholly unsecured, it should be disallowed as a secured claim & may be stripped off.
  • D-GA: Notifying ins co, bank & Ch 13 trustee of postpet fire loss overcomes jud. estop. for excluding loss from BK sched.
  • B-IL:Reservation of preference action need not be specific & unequivocal to be preserved, but type or category required.
  • D-OH denies w/drawal of ref. over D&O claims after case pending for 1.5 yrs in BK, expressing concern re forum-shopping.
  • B-PA sua sponte equitably remands adversary ag. non-debtors from which debtor was dismissed to state ct. per §1452(b).
  • B-TN: Late payments arent ordinary per §547(c)(2) bec pre-existing relationship is short & most payments made in pref pd.
  • B-TX queries if treating a sec. tax claim per §1129(a)(9)(D) can create an impaired accepting class for lender cramdown.
  • B-SDNY recognizes circuit split re 15% calculation of “rent reserved” per §502(b)(6), but in SDNY it’s 15% of total due.
  • B-SDNY analyzes complicated damages for commercial lease per §502(b)(6), incl atty fees, fair rental value, addit. rent.
  • B-MT reviews dismissal when financially viable dbtr filed ch 11 to prevent entry of jdgmt & having to post appeal bond.
  • BK-IL: Broad reservation in Plan for so-called “Litigation Claims” really only reserved so-called “Avoidance Actions”.
  • BK-IL: Not including §544 claims in Plan’s definition of “Avoidance Actions” barred their assertion post-confirmation.
  • BK-IL: Qualification as a contingent creditor alone does not make one a party to the bankruptcy for standing purposes.
  • Listen to Peggy Noonan’s insightful early handicapping of the Republican presidential candidate hopefuls:

Thanks for reading!

© Steve Jakubowski 2011