by: David M. Mannion
Blakeley & Blakeley LLP; New York
Last year, a divided panel of the Third Circuit Court of Appeals held that the plain language of § 1129(b)(2)(A) of the Bankruptcy Code allows a debtor to propose the sale of a secured creditor’s collateral free and clear of liens without providing a right to credit-bid, so long as the creditor receives the indubitable equivalent of its claim.[1] This summer, a unanimous panel of the Seventh Circuit decided just the opposite; that a debtor cannot sell a secured creditor’s collateral free and clear of liens under a plan without affording them the right to credit-bid.[2] The decisions have obvious and immediate importance for secured creditors, particularly in the loan-to-own context. However, a topic that has been less widely discussed is how, if at all, the decisions may affect unsecured creditors.
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by: Mike Busenkell
Womble Carlyle Sandridge & Rice, PLLC; Wilmington, Del.
Womble Carlyle Sandridge & Rice, PLLC; Wilmington, Del.
Although several months have now passed since the Supreme Court first decided Stern v. Marshall, parties to bankruptcy cases nationwide are still absorbing the impact of the decision on the authority of bankruptcy courts to determine certain disputes in bankruptcy cases and to render final judgments.[1] Much of the current confusion can be attributed to the wide gulf separating Stern’s majority and dissenting opinions, but the Supreme Court’s prior forays into this area also deserve some of the blame. As an exasperated Justice Scalia noted in his concurring opinion, “[t]he sheer surfeit of factors that the Court was required to consider in this case should arouse the suspicion that something is seriously amiss with our jurisprudence in this area.”[2] From the Stern majority’s perspective, its decision couldn’t have been clearer. But as everyone knows, even narrow holdings can have unintended consequences.
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ABI has been busy this summer creating new online products with the goal of saving you time and resources. The newest addition to this lineup is Search - search.abi.org. This new member resource searches more than 2 million keywords across all the ABI information platforms. The search covers every issue of the ABI Journal since 1997 and every ABI Law Review since 1995, in addition to all books, CLE conference materials and other exclusive ABI content. This search feature is also available on your smartphone or tablet.
Get up-to-speed and in the know quickly with Search - search.abi.org.
ABI is pleased to announce the launch of another new product, materials.abi.org. At this new conference educational materials website members can sort resources dating back to 2005 by conference, speaker or keyword. Exclusively for our members, files will be downloaded to your device in PDF format. This new website is also accessible on your smartphone or tablet, and all documents are newly formatted to be compatible. Click here to view the new materials website.
Click here to view all materials related to the Unsecured Trade Creditors Committee.
The much-anticipated Trade Creditor Remedies Manual: Trade Creditors' Rights is now available for pre-order in the ABI Bookstore! This Manual, written by ABI members Bruce S. Nathan and Scott Cargill, is a comprehensive guide to understanding the remedies available under both the Uniform Commercial Code and the Bankruptcy Code to trade creditors dealing with a financially troubled customer. The Manual discusses a goods seller's UCC rights to demand adequate assurance of performance from a financially shaky customer and also explains trade creditors' rights following their customer's bankruptcy. The Manual is filled with practical examples to help explain the legal principles discussed, and is fully annotated with citations to the most recent case law. It also includes form documents that can be used immediately by nearly any credit department. This is a "must have" volume for anyone in the trade credit industry and their advisors.
Did you know that all of ABI's publications are written by experts in the field and are widely used by the bankruptcy bar and bench? You can own these same publications by visiting the online ABI Bookstore. The ABI Bookstore carries over 40 publications, offers several bundled packages for your convenience and includes free ground shipping!
Click here to pre-order Trade Creditor Remedies Manual: Trade Creditors' Rights and have it shipped directly to your home or office.
