2020 RECAP: CORPORATE RESTRUCTURING REVIEW (CRR)

INTRODUCTION Amidst a global pandemic, there were plenty of interesting bankruptcy and restructuring events and changes that occurred in 2020.  We saw new Bankruptcy Code amendments go into effect (through the Small Business Reorganization Act of 2019), a government bailout in excess of $2.3 trillion (through the CARES Act), many life-long retailers on the brink […]

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Bankruptcy Topics in Distressed Real Estate

Introduction Bankruptcy cases involving commercial real estate present a multitude of problems. Those problems typically arise in the context of voluntary cases filed under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and involve a dispute between the business debtor and its mortgage lender. As such, this Paper focuses primarily on chapter 11 […]

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Why Avoidance Actions Are Difficult to Dismiss by a Rule 12(b)(6) Motion

Traditional avoidance actions under the Bankruptcy Code, i.e., preferences and fraudulent transfers, have laudable goals: (a) to provide equal treatment to creditors of an insolvent company and (b) to claw back otherwise unavailable assets for the benefit of creditors.  It is no wonder then that the governing provisions of the Bankruptcy Code and applicable state […]

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Ultra Petroleum Redux: Make-Whole Provisions and Solvent-Debtor Exception Remain Intact in the Southern District of Texas

Introduction Since the March 2019 CRR article on the Ultra Petroleum case, entitled Fifth Circuit Holds that Chapter 11 Plan Does Not “Impair” Claimants by Denying Make-Whole Rights and Contractual Interest, a fair amount of activity has occurred in the case.  While the Fifth Circuit’s original opinion, Ultra Petroleum Corp. v. Ad Hoc Comm. of Unsecured […]

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Fifth Circuit Holds that a Constructive Trust is a Judicial Remedy Under Texas Law that is not Automatically Created by Contract

In BBX Operating, L.L.C. v. Bank of America, N.A. (In re Connect Transport, L.L.C.), No. 19-11050 (5th Cir. August 11, 2020), the Fifth Circuit Court of Appeals recently upheld the dismissal of a conversion claim as a matter of law, because the plaintiff failed to sufficiently plead ownership of the purportedly converted funds in its complaint, […]

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Fifth Circuit Holds that the SBA Cannot Be Enjoined from Denying Bankrupt Entities Access to PPP Funds

In a earlier article, entitled “New Mexico Court Holds that Bankrupt Entities are Eligible for the Paycheck Protection Program,” we described how some bankruptcy courts  confronted with exigent circumstances (including several within the 1st, 5th and 10th Circuits) have granted injunctive relief to debtors in bankruptcy who have been denied  loans under Payment Protection Program […]

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