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Kuney’s Corner

KUNEY’S CORNER – The Many Fates of Intercreditor Agreements: Ignored in a Cramdown, Or Enforced Because Well-Drafted and Not Contrary to Bankruptcy Policy, or What?

Secured creditors often seek agreement among themselves in order to limit intercreditor conflict and expedite realization of their respective claims against a borrower in a chapter 11 case.  One might call it a “strength through peace” approach.  However, in chapter 11 cases, some courts have ignored intercreditor agreements in cramdown situations, refused to enforce certain […]


KUNEY’S CORNER – Cramming Down a Chapter 11 Plan by Giving Secured Creditor Substitute Collateral

Can a chapter 11 debtor confirm a plan that gives a hostile secured creditor a lien on an orange as a substitute, in essence, for the secured creditor’s lien on an apple that the debtor wants to keep and use?[i] Yes, if the value of the new lien meets the test of “indubitable equivalence” with […]


KUNEY’S CORNER – To Cheat Perdition Under the Debtor’s Plan: The Secured Creditor’s Section 1111(b) Election

A recent article by this author on this site presented the debtor’s cram down powers, to be employed in confirming a plan over the opposition of impaired creditors.[i] That article referred briefly to an undersecured secured creditor’s counter-measure: the section 1111(b)(2) election. By making this election, a secured creditor chooses to do without (i.e. “plucks […]


KUNEY’S CORNER – Cramdown: An Impaired Class of Claims Says “No” But the Plan is Confirmed Anyway

By filing a chapter 11 petition, the debtor seizes the initiative in proposing a reorganization plan – which is to provide how soon, in what amount, and in what manner creditors’ claims are paid. [i] But a debtor does not necessarily get its way. A class of creditors who are not getting paid in full […]


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