Written by: Gregory G. Hesse
Hunton & Williams LLP; Dallas
Jesse T. Moore
Hunton & Williams LLP; Dallas
A circuit split. State vs. estate. Textualism vs. pragmatism. Despite its promise, this year's Supreme Court Bankruptcy Code interpretation bout- Florida Dept. of Revenue v. Piccadilly Cafeterias Inc., 128 S.Ct. 2326 (2008)- was relatively dull. Pragmatism entered the ring disoriented and nervous, and was quickly k.o.'ed by textualism and the certainty of taxes.
The issue in Piccadilly was simple. Section 1146(a) of the Code (§1146(c) pre-BAPCPA) states that taxes may not be imposed on a "transfer under a plan confirmed under [§]1129" of the Code. Roughly speaking, the Supreme Court had to decide whether "under a plan confirmed" narrowly means "pursuant to plan already confirmed" or broadly implies "leading to a plan to be confirmed."
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Written by: Kenneth E. Aaron
Weir & Partners LLP; Philadelphia and Wilmington, Del.
In the past, a chapter 11 debtor's counsel might have opted to take advantage of a sale of assets under §363 of the Bankruptcy Code to avoid the delays and uncertainties of the plan confirmation process. On June 16, 2008, the U.S. Supreme Court in Florida Dept. of Revenue v. Piccadilly Cafeterias Inc. held that if a chapter 11 debtor wanted to sell property free of transfer taxes, it had to sell its assets under a confirmed plan and not merely in a §363 sale in contemplation of a plan. ___U.S.___, 128 S.Ct. 2326 (2008). Recently, the Ninth Circuit Court of Appeals has eliminated another potential benefit of using a §363 sale prior to a plan of reorganization in General Elec. Capital Corp. v. Future Media Productions Inc., ___F.3d___, 2008 WL 2610459 (9th Cir. July 3, 2008).
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Materials From The Mid-Atlantic Bankruptcy Workshop
More than 250 members attended the 4th Annual Mid-Atlantic Bankruptcy Workshop which was held on the eastern shore of Maryland at the Hyatt Regency, Chesapeake Bay Golf Resort, Spa & Marina. Members convened for three days of blue crabs, networking and outstanding educational programs. Topics included ethics issues, non-bankruptcy alternatives, real estate issues, new claims rules, mediation and ADR, and more!
In the session "The Good Earth: Real Estate Issues," the panel reviewed selected homebuilder cases, lease assumption and rejection in chapter 11 cases, and the results of a mechanic's lien survey. Hon. Gloria M. Burns, U.S. Bankruptcy Court, District of New Jersey, moderated the panel which included Andrew C. Kassner of Drinker Biddle & Reath LLP in Philadelphia, Brian Francis Kenney of Miles & Stockbridge PC in McLean, Va., Michael J. Viscount, Jr. of Fox Rothschild LLP in Atlantic City, N.J. and Joseph Zagraniczny of Bond, Schoeneck & King, PLLC in Syracuse, N.Y. Below are links to several items included in the materials from the session.
Homebuilder Bankruptcy Cases (pdf) - Andrew C. Kassner, Michael Viscount and Brian Kenney
Selected Issues of Lease Assumption and Rejection in Chapter 11 Cases (pdf) - Joseph Zagraniczny, Esq. and Sara Temes, Esq., Bond, Schoeneck & King, PLLC
Mechanics Lien Survey (pdf) - Andrew C. Kassner, Michael Viscount and Brian Kenney
Committee Session At The ABI 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, as well as some top-notch entertainment! The Real Estate Committee will hold a joint session with the Consumer Bankruptcy and Legislation Committees entitled "Politics, Practicality and People: The Impact of the Mortgage Meltdown in Bankruptcy." Alane A. Becket of Becket & Lee, LLP in Malvern, PA will moderate the panel which will include Tara Twomey from the National Consumer Law Center in Carmel, CA, Hon. David W. Houston III, U.S. Bankruptcy Court, Northern District of Mississippi, Debra Miller, Standing Chapter 13 Trustee in South Bend, IN and Ronald F. Greenspan of FTI Consulting, Inc. in Los Angeles. The session will take place on Friday, at 9:30am. Conference registration will begin this month.
