On December 27, the Consolidated Appropriation Act was signed into law. In addition to funding the federal government in 2021 and providing COVID-related relief to individuals and businesses, the new law amends the Bankruptcy Code in at least nine respects. A brief description of the amendments is included in this article. READ MORE

Businesses that were already struggling before the COVID-19 pandemic hit the United States are now facing the consequences of having to close their doors during the public health crisis. With more bankruptcies likely on the horizon as the economy reels from the pandemic, landlords and their lenders should consider both the basics and the nuances they face in preserving and protecting their collateral in the bankruptcy arena. READ MORE

A Chicago bankruptcy court recently ruled in In re Hitz Restaurant Group that a debtor’s obligation to pay rent during its bankruptcy case may be temporarily reduced because of a force majeure clause in the lease and the governor’s COVID-19 stay-at-home order. READ MORE

The initial wave of post-COVID Chapter 11 business bankruptcies has revealed an increasing tendency for senior executives of financially distressed companies to award themselves substantial bonuses compensation immediately before placing their companies into bankruptcy. If this trend continues, it may largely nullify the efforts of Congress and the courts to rein in and strictly regulate such actions. READ MORE

The CARES Act restores the ability of corporations to carry back net operating losses generated in taxable years beginning in 2018, 2019 or 2020 for up to five years, and removes the limitation on the amount of NOLs that can be carried forward to taxable years beginning in 2018, 2019 and 2020. Therefore, a corporation with NOLs can carry back and carry forward NOLs to reduce taxable income and generate a refund of some or all of the previously paid U.S. federal income taxes. READ MORE

Charitable institutions and not-for-profit entities are particularly vulnerable to financial distress because of the COVID-19 pandemic. NFPs should not just focus on surviving the short-term, but they should also consider longer-term subsistence and resource-allocation issues. This is especially important for NFPs that struggled financially before the on-set of the pandemic. READ MORE

Congress just made it easier and less expensive for small businesses to reorganize under Chapter 11. Small businesses continue to struggle under the current social isolation measures in place in most states. Even with the recent financial relief package passed by Congress, many small businesses will not have sufficient resources to meet their most basic obligations such as rent, utilities and other operational necessities. In an effort to keep small business afloat during this crisis, Congress expanded small business bankruptcy relief in the Coronavirus Aid, Relief and Economic Security Act (CARES Act). READ MORE

As the economic fallout associated with the COVID-19 virus continues, many cities and states have already suspended a landlord’s ability to evict delinquent tenants. These actions, coupled with similar directives on evictions and perhaps foreclosures that will be implemented in the coming days, are currently allowed under U.S. Supreme Court precedent. READ MORE

Parties to syndicated credit agreements and high-yield bond indentures have recently introduced provisions to limit the effect of those transactions on lenders that hold overall net short positions with the borrower or its debt. This article summarizes the key parties and terms related to anti-net short provisions, also known as Windstream Provisions. READ MORE

The First Circuit Court of Appeals has ruled that bankruptcy trustees may sue colleges and universities to recover pre-bankruptcy tuition payments received from parents of adult children. The decision, while not binding in any other court of appeals, signals a clear trend in similar cases. READ MORE

Breaking from the overwhelming majority of prior case law, two bankruptcy courts recently held that Medicare and Medicaid provider agreements can be assigned as part of a Section 363 bankruptcy sale free and clear of the assignor’s liabilities under the provider agreements, including amounts due or that may become due under the Provider Agreement for pre-assignment activities. READ MORE

The President has signed legislation modifying the Bankruptcy Code in several respects. The changes are meant to help preference recipients, family farmers, disabled veterans, and small businesses. READ MORE

In a recent opinion, the Seventh Circuit ruled the City of Chicago must return repossessed and impounded vehicles upon receiving a bankruptcy petition, or run the risk of violating the automatic stay under Section 362 of the Bankruptcy Code. The decision helps answer whether the City could continue to hold onto a debtor’s vehicle post-bankruptcy filing when the vehicle was repossessed and impounded pre-bankruptcy. READ MORE

The U.S. Supreme Court’s holding in Taggart should remind creditors to closely examine a discharge before taking any actions to collect an obligation that might have been discharged in a bankruptcy case. READ MORE

On May 20, 2019, the U.S. Supreme Court ruled a trademark licensee can continue to use the trademark after a bankrupt licensor rejects the license agreement. The ruling removes the risk that a licensor could file bankruptcy and terminate the licensee’s rights to use the trademark. READ MORE

Under the current laws of most states, purchasers of Bitcoin and other cryptocurrencies are at risk of having to disgorge their holdings if an adverse claim is asserted by a creditor of a prior owner of the cryptocurrency. However, rather than adopting uniform laws, the latest solutions are very different and may lead to an even more complicated landscape. READ MORE

If a secured creditor mistakenly releases its lien, it should correct the error as soon as possible. A recent decision from the U.S. Court of Appeals for the Seventh Circuit implies if the secured creditor is diligent, it may not be harmed by the inadvertent release, even if the borrower files for bankruptcy. READ MORE

While it is important to prepare financing statements clearly and correctly, the policy governing financing statement collateral descriptions under the UCC is meant to be flexible and fundamentally fair. In re 8760 Service Group demonstrates some careless errors can be overcome. READ MORE

In a recent Chicago bankruptcy case, the judge ruled that obligations are not extinguished by statutes of limitation and, even after the expiration of the limitation period, a creditor retains its rights in collateral so long as the underlying debt is enforceable. READ MORE

A recent decision from the U.S. Bankruptcy Court strictly enforced a subordination agreement preventing the junior lienholder from obtaining discovery from the senior creditor. This is good news for creditors who bargain for “silent second” language in subordination agreements. READ MORE

Under the Federal Priority Act, the government gets paid first if it has an outstanding claim when businesses or individuals become insolvent. But a review of relevant case law suggests that creditors who hold a prior perfected interest in a debtor’s real or personal property may still have a fighting chance in an ensuing priority battle. READ MORE

A recent Delaware bankruptcy court decision may leave bankruptcy-claim traders somewhat confused as to how to properly navigate the anti-assignment “override provisions” set forth in Revised Article 9 of the Uniform Commercial Code. READ MORE

In a recent Chapter 11 case (and subsequent Chapter 7 case), an Illinois Northern District judge ruled that an assignee in an ABC could collect pre-petition and post-petition attorney fees and expenses. READ MORE

Missouri statutes, like statutes in many other states, govern right-to-cure, pre-sale, and post-sale notices that lenders in secured consumer transactions send to borrowers when the borrowers default and the lenders seek to repossess and sell their collateral. Consumer lenders should be aware of two recent decisions from the Missouri Court of Appeals. READ MORE

The New Year brings with it new changes to the bankruptcy code. These recent rule changes apply to any case filed after December 1, 2017, and may apply retroactively to pending proceedings in those instances where it would be “just and practicable.” READ MORE

The court ruled that a creditor’s charge off of an account, standing alone, does not mean that the creditor has agreed to waive the right to assess additional interest otherwise permitted by the credit agreement. READ MORE

Creditors considering filing or joining in the filing of an involuntary bankruptcy petition, and the attorneys that represent them, have much to deliberate before becoming involved in an involuntary bankruptcy filing. READ MORE

Two recent federal court decisions establish that managers of financially troubled Missouri limited liability companies do not owe a fiduciary duty to creditors of their troubled enterprises. READ MORE

The new Missouri Commercial Receivership Act provides a much more robust receivership remedy than prior law, giving creative counsel tools to achieve some results that were not necessarily possible under the old law. READ MORE

A divided panel of the 9th Circuit Court of Appeals recently held that rent restrictions should not be considered when valuing a secured creditor’s interest in an affordable housing project that the debtor proposes to retain under a plan of reorganization. READ MORE

In Husky Int'l Elecs., Inc. v. Ritz, the U.S. Supreme Court recently determined that the nondischargeability of debts under 11 U.S.C. § 523(a)(2)(A), which prohibits discharge of debts “obtained by . . . false pretenses, a false representation, or actual fraud,” does not require a false representation. The “actual fraud” exception to a bankruptcy discharge includes other traditional forms of fraud, including fraudulent conveyances that do not necessarily include a representation by the debtor or reliance by the creditor. READ MORE

On May 10, 2016, the Missouri General Assembly passed the Missouri Commercial Receivership Act (MCRA), providing for significant changes to Missouri’s law on receiverships. Assuming that Governor Nixon signs the bill (which is almost certain), the law will become effective later this year. The significant changes to the Missouri receivership law in the MCRA are as follows, READ MORE

The United States Supreme Court was poised to finally resolve this issue, but the death of Justice Antonin Scalia prevented the Court from doing so. On March 22, 2016, the Supreme Court was divided 4-4 in a case where the lower appellate court had ruled that spousal guarantors are not protected by the ECOA. READ MORE

No matter your industry or line of business, insolvency is not a pleasant process. But it may surprise even a seasoned corporate attorney when one debtor in particular comes calling: The federal government. The law that makes it possible — and pushes Uncle Sam to the front of the creditor line — is the Federal Priority Act. READ MORE

The Ninth Circuit Court of Appeals in In Re Adamson Apparel, Inc. became the first appellate court to address the validity of “Deprizio waivers." In Adamson, the court held that because the Deprizio waiver was not a “sham” provision, the insider was not a creditor of the debtor that could be subject to a preference action. The decision carved out a fact-based avenue for analysis that will likely lead to increased litigation across the country on the issue of Deprizio waivers. READ MORE

Often the lender would like to preserve the property as a LIHTC property and take advantage of the value of any remaining tax credits. The lender usually accomplishes this result by either reinstating the existing LURA following the foreclosure sale or encumbering the property with a new LURA. READ MORE

A lender’s ultimate remedy for dealing with a distressed and over-leveraged LIHTC project is to foreclose on the project. Foreclosure is the primary unilateral remedy that may be undertaken by a lender and will generally be the remedy against which a negotiated restructuring will be measured and evaluated. READ MORE

The most logical long-term solution for a distressed and over-leveraged LIHTC project is a negotiated re-structuring or “right-sizing” of the debt owed to the lender. Such a right-sizing may be accomplished by a repayment of debt by the borrower and investors, a forgiveness of debt by the lender or a combination of both. While in theory this is the most logical solution, just like any settlement, it depends upon the parties’ positions. READ MORE

Because there is currently a very robust market for distressed debt, a lender's first option for dealing with any non-performing loan is often to look to sell the loan. This post addresses the unique considerations and difficulties involved in the sale of a loan secured by an LIHTC project. READ MORE

At the beginning of the case, no one predicted that the city would emerge from bankruptcy so quickly — only about 18 months — or that the final Plan of Adjustment would enjoy such widespread support among creditors and politicians. What can we learn from the largest municipal bankruptcy ever? READ MORE

While these ultimate outcomes are the same as those involving workouts of market-rate properties, there are unique issues that must be addressed and analysis that must be undertaken in determining which outcome is the most appropriate in a LIHTC workout. In this post, we will explore how a lender should use the early stages of a workout to better its position, analyze its alternatives and select the best workout or exit strategy. READ MORE

Judgment debtors often try to use the Fifth Amendment’s privilege against self-incrimination to avoid post-judgment discovery of their assets and income. However, the U.S. District Court for the Eastern District of Missouri ruled last year that when the judgment debtor is a trust, neither the trust nor its individual trustees may invoke the privilege against self-incrimination, and the trust must comply with post-judgment discovery. The decision is important for banks and other creditors because individuals often hold their assets in trusts. READ MORE

Today, we’ll dive deeper into how an appraiser might approach a valuation, and some concerns that courts have raised about the valuation process for these types of redevelopment projects. What does a typical LIHTC appraisal look like? A comprehensive LIHTC appraisal covers four separate valuation scenarios. READ MORE

In any workout or bankruptcy, it is important to understand the value of a lender’s collateral, because the value of the collateral will largely determine the amount of the lender’s recovery. This is particularly true in a workout or bankruptcy involving an LIHTC project because under the federal LIHTC program, once a project is placed into service, all senior debt of the project owner must be non-recourse to the partnership and its partners. READ MORE

In the still-developing area of low-income housing tax credit workouts and bankruptcies, secured lenders may feel relatively powerless. But armed with knowledge concerning several key leverage points, a lender can better protect its interests and negotiate an advantageous outcome of a troubled loan. READ MORE

This post is the first in a continuing series on the Credit Report Blog on the subject of workouts and bankruptcies involving low-income housing tax credit (LIHTC) projects. Our upcoming blog posts will discuss specific issues unique to LIHTC project workouts and bankruptcies. READ MORE

Can you really lease a cow? According to the Sixth Circuit, the answer is “yes.” In fact, the legal and practical issues of cattle leasing were clearly illustrated in a recent decision from the Sixth Circuit, Sunshine Heifers, LLC vs. Citizens First Bank (In re Purdy). READ MORE

A debtor may shield from collection by creditors assets that the debtor holds in Individual Retirement Account (IRA). However, as more IRA owners die with substantial assets remaining in their accounts, a new question has arisen: Can a debtor exempt an IRA that she inherited from someone other than her spouse? READ MORE

New value is an important defense to preference liability under the Bankruptcy Code. In a very important decision, the Eighth Circuit recently addressed how the new value defense to preference liability should be applied in three-party payment arrangement. READ MORE

The opinion by the Delaware bankruptcy court in In re Fisker Auto. Holdings, Inc., raised alarm bells for secured creditors throughout the country. Many worry that it will diminish the valuable right of secured creditors to credit bid, READ MORE

Disastrous results can befall a financial institution that buys a mortgage loan but does not obtain or keep adequate documentation related to the purchase. Yet over the past several years, many mortgages have exchanged hands with little-to-no supporting documentation. As recent cases have shown, deficient documentation has often caused headaches for financial institutions when they try to foreclose. READ MORE

What happens when one loan document contains a jury waiver but another doesn’t? For the lender, all may not be lost. That was another important holding from the Missouri Court of Appeals Western District in Midland Property Partners, LLC v. Richard Watkins. READ MORE

It has been the longstanding rule in Missouri that a litigant may recover his attorneys’ fees and costs from the losing party if the underlying contract expressly authorizes the award of attorneys’ fees. But Missouri courts take very seriously the requirement that attorneys’ fees be expressly authorized. READ MORE

Occasionally mortgage lenders require only one spouse to sign a deed of trust (or mortgage) and allow the other spouse to sign a separate document consenting to the loan transaction. But, as a Missouri appellate court ruled recently, this practice could leave the lender with an invalid lien if both spouses own the property. READ MORE

Bankruptcy cases frequently take too long and are too expensive, thereby delaying and reducing recoveries to creditors. By borrowing the best parts of the Bankruptcy Code and avoiding some of its more litigious parts, a new receivership statute will, in certain types of cases, permit a more efficient redeployment of distressed corporate assets to productive uses. READ MORE

A receivership can affect the rights of many others who are not parties to the litigation, such as employees, creditors, and business partners. Although some old cases, recognize the ability of creditors to file claims against receiverships, there is no uniform procedure to account for the claims of creditors and otherwise protect the rights of non-parties. READ MORE

Many modern statutes recognize two basic types of receiverships. The first, called a “limited” or “custodial” receivership is one where the receiver is appointed to hold specific identified property pending a more complete resolution of the respective parties’ rights in the property. The second, called a “general” receivership, involves all assets of the entity with the stated purpose of selling or liquidating the entity. READ MORE

Missouri receivership law, however, is largely unchanged from the 19th Century and is simply inadequate in several respects to address all the issues raised by the liquidation of a modern business. A few states around the country have recently updated their own receivership laws, and Missouri should follow suit. READ MORE

As a result of recent legislation, local Missouri governments are precluded from establishing procedures for servicing or enforcing mortgage loans that contradict state or federal laws governing these matters. READ MORE

Lenders dealing with Missouri borrowers should be aware of a small, but very important, change in Missouri law regarding credit agreements that becomes effective on August 28, 2013. READ MORE

If the Equal Credit Opportunity Act is violated, the spousal guaranty may be void or, even worse, the financial institution may face liability. In Missouri and Illinois, whether the ECOA applies to a spousal guaranty depends on whether the financial institution attempts to enforce the spousal guaranty in federal or state court. READ MORE

If a bank has approved a loan application but later changes its mind, it should promptly advise the loan applicant; otherwise, the bank may face liability for punitive damages. This was the lesson in Bailey v. Hawthorn Bank before the Missouri Court of Appeals Western District. READ MORE

Owners of Chapter 11 bankruptcy debtors have long devised schemes to try to hold on to their ownership interests while stiffing the debtors’ creditors. In the past, owners attempted to do this by proposing reorganization plans that paid creditors only a portion of what they are owed while selling all of the equity in the reorganized debtor to the owner for a nominal new investment. READ MORE

In a recent case, the Missouri Court of Appeals ruled that the Missouri Credit Agreement Act’s requirements can be satisfied by internal bank documents that indicate that the bank has agreed to make a loan even if the documents are never shared with the loan applicant. READ MORE