Category Archives: Bankruptcy and Real Estate Litigation

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Substantive Consolidation: It’s Alive and Well (or Maybe Just Alive)

The doctrine of substantive consolidation (generally- the power of a bankruptcy court to consolidate the assets and liabilities of affiliated entities in bankruptcy) is a recognized remedy exercised by bankruptcy courts – one that strikes fear into the hearts of many lenders. Justifiably so. The doctrine can be employed to order the substantive consolidation of … Continue Reading

Hey Guys, Let’s Sue a Financial Institution! Our Government at Play

This is all about the difficulty of taking the punch bowl away from a roaring good party. Over the past several weeks a number of major banks folded under enormous pressure from the US DOJ to settle fraud claims resulting from the sale of bonds prior to the financial crisis of 2008. The allegations here … Continue Reading

Secured Creditors Beware: Overvalued Properties in Bankruptcy

An overvalued property may now have a bigger impact on a secured creditor’s bottom-line during bankruptcy.  Splitting with the Seventh Circuit, the Fifth Circuit in Southwest Securities, FSB v. Segner (In the Matter of Domistyle, Inc.), 2015 WL 9487732, held that a bankruptcy trustee may surcharge its expenses for maintaining a property even before moving … Continue Reading

Section 546(e) Protects Two Tiered Securitization Structures

What happens when a debtor, whose loan is pooled and securitized, files for bankruptcy? Are payments made to investors recoverable as fraudulent transfers or preferences? Until recently, no published court opinion addressed this issue.  However, in what is sure to be welcome news for investors in securitization vehicles, late last month, a Bankruptcy Court in … Continue Reading

Foreclosure Attempt Blocked? What You Should Know Before the Clock Hits Zero

Just when you thought we were out of the housing crisis weeds of ’07—think again.  Apparently when an abundance of people buy homes they can’t afford and predictably fall behind on their payments, the judicial foreclosure process becomes log-jammed.  Enter our latest housing crisis nemesis: the statute of limitations. Lenders must generally file a foreclosure … Continue Reading

Three Top Considerations After Omnicare

In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U. S. ____ (2015), the Supreme Court clarified issuer liability under §11 of the Securities Act. Section 11 provides that issuers are liable for registration statements that contain “an untrue statement of a material fact or omit to state a material fact required … Continue Reading

Dechert OnPoint: NDNY Bankruptcy Court’s Broad Interpretation of the Definition of “Interests” in 363 Sale

A recent decision out of the Bankruptcy Court for the Northern District of New York has brought greater certainty to the interpretation of what qualifies as an “interest” when determining the scope of a Section 363(f) “free and clear” sale in bankruptcy. The decision in In re Tougher Industries, Inc. became the latest in a … Continue Reading

Pre-Game Reading

For those of us with a rooting interest in Sunday’s festivities, it’s been a long two weeks. By Superbowl Saturday, Coach Belichick’s game plan will be set, the Material Girl’s setlist will be planned and the most famous ankle since Curt’s Bloody Sock will (hopefully) be mended, and it is with that in mind that … Continue Reading
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