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Business Bankruptcy

Bankruptcy Code Revised

Some Financial Help for the Little Guy: President Trump Does Something Uncontroversial for a Change and Signs Four New Bankruptcy Bills into Law1 Download a Printable PDF of this Article President Trump signed four bipartisan bankruptcy bills into law this past Friday, effecting the most significant changes to the Bankruptcy Code since 2005. The four […]


When a Seller of Real Property Files for Bankruptcy Before Closing

What are the purchaser’s rights under an executory contract? Sven, of St. Paul, related to us this sad but musical tale, which pertains to purchasing real estate where the seller goes bankrupt before closing: You see, she and I entered into a written contract to buy a piece of land with a small house on […]


The Myth of the Newspaper Being a Commercially Reasonable Notice

Is It Commercially Reasonable Notice, If No One Is Reading? You represent a secured lender. You are to assist your client in its exercise of rights under UCC §9-610 to sell its collateral after it has foreclosed upon the collateral. Or maybe you represent a chapter 11 debtor and are selling its assets under Bankruptcy […]


LLC Membership Interests in Chapter 11 – Can They be Sold Over Other Members’ Objections?

Interpretation Matters When a chapter 11 debtor holds a membership interest in an LLC, it may be permissible for them to sell their membership interest in the LLC, or even force the sale of the entire LLC, over the objections of one or more other members. Or not. At the crux of the debate in […]


Mission Accomplished: Executory Contract Protections Extend Beyond Trademark Licenses

Tempnology Resolves the Treatment of Trademark Licenses Under Bankruptcy Law and More On May 20, 2019, the United States Supreme Court resolved what, according to the International Trademark Association, had been “the most significant unresolved legal issue in trademark licensing.” In an opinion delivered by Justice Kagen[1], the Court held 8-1 that under Section 365 […]


90 Second Lesson: If I File a Chapter 7 Bankruptcy, Are the Assets of My Single-Member LLC Safe From the Trustee?

QUESTION: A small business owner emailed us, on behalf of a friend, to ask whether assets in a single-member LLC could be used by a Chapter 7 Trustee in the LLC member’s personal bankruptcy case to satisfy creditors’ claims against the member. ANSWER: We can imagine this question arising where the member’s business is owned […]


Fancy Filing: Can They File a Chapter 11 Bankruptcy Case Just to Gain a Litigation Advantage?

The Answer Is: It Depends Debtors often use bankruptcy filing to gain an advantage in litigation. Whether or not they succeed depends on the facts and circumstances of the bankruptcy case. Let’s look at a sample case to determine how a court might rule. Case Study Catherine, Jules, and Jim each founded and owned one-third […]


What Happens in the BVI, Doesn’t Stay In The BVI – Clawbacks of Fraudulent Transfers

How Far Can the Trustee Reach? It is common practice that trustees will seek to recover or “clawback” fraudulent transfers made prior to the commencement of a Chapter 11 bankruptcy case. But what happens when all transfers by the debtor were fraudulent? And how far can the trustee reach to recover a transfer? Let’s look […]


Section 363 Sale: Free and Clear of Claims That Are Backed By Strong Public Policies

Under Section 363(f) Free and Clear Means Free and Clear: A Case Study Bankruptcy sales of assets under section 363(f) can bring more cash into the estate in part because the purchaser takes the assets “free and clear” of the liabilities of the debtor-seller. The Ormet[i] case illustrates that the “free and clear” quality of […]


90 Second Lesson: Can my borrower file for bankruptcy just to keep me from foreclosing?

  QUESTION: An exasperated loan officer emailed us, asking whether the borrower – a commercial real estate lessor – could really file a chapter 11 case just to evade a state court order to appoint a receiver in a foreclosure proceeding against the borrower’s building. ANSWER: If a debtor were to admit that it filed […]


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