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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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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