Since chapter 12 is modeled after chapter 13, plus the relative paucity of chapter 12 case law, there is a considerable degree of cross-pollination whereby chapter 13 case law is used to resolve chapter 12 issues.[1] Ordinarily, this is fine. Despite their similarities, however, chapter 12 is unique in certain respects.
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Editor’s Note: The following article, “The Purchaser of a Tax Lien Is the Holder of a 'Tax Claim' Under 11 U.S.C. § 511(a),” won the prize for second place in the Seventh Annual ABI Bankruptcy Law Student Writing Competition. The author, Andrew Reardon, is a recent graduate of St. John’s University School of Law in Jamaica, N.Y. In addition to recognition and publication of his article in the Bankruptcy Taxation Committee Newsletter, Mr. Reardon receives a cash award of $1,250, sponsored by Jenner & Block LLP, and a one-year ABI membership.
Post-Annual Spring Meeting is a time of change for ABI, including our committee's leadership! The term of John Hutton, our co-chair for the past several years, has ended, and Brad Sharp has been named as a new co-chair. Shaunna Jones has become our Newsletter Editor. To date, the Listserve Facilitator position remains open. If you are interested in joining the leadership team by filling this role, please email us. We thank those departing leaders who have served us well, and welcome aboard our new committee leaders.
Fracking, shorthand for hydraulic fracturing, is a type of drilling used by oil and gas prospectors. It involves drilling thousands of feet below the surface before gradually turning horizontal and continuing onward. As a result, an initially unsuccessful drilling site can give rise to several unique wells. Similarly, it is possible that a case that is unsuccessful at generating a unanimous decision may also present various twists and turns by a group of appellate judges, which can give rise to several unique opinions.
Under § 363 of the Bankruptcy Code, a trustee or debtor in possession may sell property “free and clear of any interest in such property of an entity other than the estate” if certain conditions are met.[1] That property may be sold “free and clear of any interest” has the effect of blocking post-sale claims against the purchaser, as “principles underlying the finality of 363 sale orders” are considered “much too important” for a court to otherwise deny full enforcement.[2]
An unsecured creditors’ committee is supposed to be representative of the interests of a diverse group of unsecured creditors with an interest in the outcome of a debtor’s reorganization or “fresh start.” Landlords with lease-rejection claims, parties to rejected equipment leases, trade creditors, unsecured bondholders and the Pension Benefit Guaranty Corporation are a few examples.
Mediation will continue to expand as a resource in all types of bankruptcy cases. It is the hope of the Mediation Committee that the ABI Mediation Model Rules will become a valuable resource for judges, local rules committees, professionals and parties, and that the rules will help facilitate the growth and accessibility of bankruptcy mediation to the entire bankruptcy community.
It is well settled that state law statutes of limitations do not affect a trustee’s ability to bring fraudulent transfer actions, so long as the limitations period has not expired before the petition date.[1] Assuming that the limitations period has not expired, the limitations period essentially freezes, and the bankruptcy trustee has two years of “breathing room” to investigate and bring fraudulent transfer claims.[2]
In December 2014, attorneys and financial advisors serving both unsecured creditors’ committees and trustees watched as the Second Circuit expanded the “safe-harbor” provision available to defendants in certain clawback litigations. The safe-harbor provision was designed by Congress to protect certain securities and other transactions including “settlement payments” from avoidance actions. In 11 U.S.C. 546(e),[1] the Bankruptcy Code sets forth that a trustee may not avoid a transfer that was a settlement payment to (or for the benefit of) a broker or financial institution, or for a payment made in connection with a securities contract.
In a case of first impression, the U.S. Bankruptcy Court for the Northern District of Illinois recently held that loan payments related to a two-tiered securitization structure are protected from avoidance by 11 U.S.C. § 546(e). Specifically, in Krol v. Key Bank National Association (In re MCK Millennium Centre Parking LLC),[1] the court held that the debtor’s payments on a nondebtor affiliate’s loan, which had been transferred into a trust as part of a commercial mortgage-backed securitization, were made “in connection with a securities contract” under § 546(e) and, therefore, were not avoidable as preferential or constructively fraudulent transfers.