Asset Sales Committee

ABI Committee News

Sales Transaction "Free and Clear of Liens" Not Immune from Appellate Scrutiny Despite a "Closing," Junior Lienholder's Rights Preserved

Written by: Kit Weitnauer
Alston & Bird LLP; Atlanta

It doesn't take too much experience in the world of bankruptcy to learn that most of the time, when the proverbial train is leaving the station, it stops for no one. The bankruptcy court approves the transaction over objection and the objecting parties are unable to obtain a stay pending appeal. Because there is no stay pending appeal, the parties to the court-approved transaction head to closing table. The egg is scrambled and cannot be unscrambled. Any appeal is resisted, and often dismissed, on mootness grounds. This is especially true with fast-moving sales under §363, in part because of the protection from a reversal on appeal provided by 11 U.S.C. §363(m).1 Such sales are increasingly common in chapter 11 cases, which can give creditors an exit strategy much faster than the usual time needed to confirm a plan of reorganization.

Read the full article.

 

Materials From the Views From The Bench Program

Views From The Bench, co-sponsored by the ABI and the Georgetown University Law Center, recently concluded in Washington, DC.  Each year Views From The Bench offers a unique opportunity for bankruptcy practitioners and bankruptcy judges to convene for top-notch CLE and keen insights. This year's conference featured topics including asset disposition, real estate issues, retail bankruptcies and more.  The session "Liquidating Cases And Asset Disposition; Sales, Auctions, Appeals," covered several issues in the asset sales process as well as section 506(c). Melanie L. Cyganowski of Otterbourg, Steindler, Houston & Rosen, PC in New York moderated the panel which included Hon. Judith K. Fitzgerald, U.S. Bankruptcy Court (W.D. Pa.), Hon. Michael J. Kaplan, U.S. Bankruptcy Court (W.D.N.Y.) and Hon. Eugene R. Wedoff, U.S. Bankruptcy Court (N.D. of Ill.).  Irving E. Walker of  Cole, Schotz, Meisel, Forman & Leonard, PA in Baltimore served as the facilitator.  Below are links to relevant materials from the session.

Lender Control Over the Asset Sale Process & How Courts Respond - Melanie L. Cyganowski, John C. Wright, Scott F. Budzenski of Otterbourg, Steindler, Houston & Rosen, P.C., New York, New York (pdf)

Section 506(c): What We Know and Don't Know About Charging A Secured Creditor's Collateral for the Costs of Chapter 11 - Irving E. Walker, Michele E. Cosenza, G. David Dean of Cole, Schotz, Meisel, Forman & Leonard, PA (pdf)

 

Committee Session Details For The Winter Leadership Conference!

The Winter Leadership Conference will be held Dec. 4-6 in Tucson, AZ, at the Westin La Paloma.  This year's conference will feature another great group of sessions and speakers.  The Asset Sales Committee will hold a joint session on Saturday morning at 9:30 a.m. with the Finance and Banking Committee entitled "Competing Claims of Creditors in Connection with Sales of Assets under Section 363."  The panel for the session will include Ana Maria Alfonso of Kaye Scholer LLP in New York, Ryan McCarthy of Aurora Resurgence in Los Angeles, Roseanne Thomas Matzat of Hahn and Hessen LLP in New York and Geoffrey A. Richards of William Blair & Company in Chicago. Register online now at ABIWorld.