April 28, 2023

Supreme Court Argument: Can Real Estate Tax Foreclosure Violate the Takings Clause?

Eighteenth century ‘history and tradition’ might govern the constitutionality of real estate tax foreclosures where the government retains sale proceeds in excess of unpaid taxes.

Supreme Court

April 26, 2023

Supreme Court Hears Oral Argument on Tribal Sovereign Immunity

It appears as though the Supreme Court will decide Lac du Flambeau based entirely on textual analysis of Section 106(a), which does not explicitly abrogate sovereign immunity as to Native American tribes.

Supreme Court

April 25, 2023

Lack of Reliance on Representation Isn’t a Defense to a Constructive Fraudulent Transfer

Damages for a constructively fraudulent transfer were the difference between what the buyer paid and what the business was really worth, based on accurate income and expenses.

2nd Circuit, New York, New York Eastern District

April 21, 2023

A Buyer Is in Good Faith Despite Using Economic Leverage, Fifth Circuit Says

Supposedly nefarious facts aren’t evidence of bad faith if they were disclosed to the bankruptcy judge who nevertheless made a finding of good faith.

5th Circuit

April 20, 2023

Another Court Holds that Debts of Corporate Sub V Debtors Can’t Be Nondischargeable

Contrary to the Fourth Circuit, five bankruptcy courts have now held there’s no such thing as nondischargeability for corporate Sub V debtors. The question is now before the Fifth Circuit.

11th Circuit, Florida, Florida Middle District

April 19, 2023

Supreme Court Holds: § 363(m) Isn’t Jurisdictional; It’s a Limitation on Appellate Relief

The Supreme Court’s MOAC decision contains language casting doubt on the validity of the doctrine of equitable mootness.

Supreme Court

April 18, 2023

Notification of Bankruptcy Requires Lifting Garnishment of Post-Petition Income

Although the automatic stay does not require turning over property garnished before bankruptcy, a creditor may not continue garnishing property after filing, Judge Burgess says.

11th Circuit, Florida, Florida Middle District

April 17, 2023

Second Circuit Holds: The Party to a Contract Alone May Assert a ‘Cure Claim’

Someone who is not a party to the contract being assumed can’t assert a cure claim, even though Section 365(b) doesn’t give the counterparty the sole right to demand a cure on assumption of an executory contract.

2nd Circuit

April 14, 2023

Second Circuit Won’t Vacate the Stay Pending Appeal from Voyager’s Confirmation Order

A terse Second Circuit order seems to mean that a stay of a confirmation order pending appeal granted in district court can’t be appealed to the circuit, at least when the appeal is being expedited.

2nd Circuit

April 12, 2023

Core vs. Non-Core Doesn’t Determine Whether Arbitration Will Be Enforced

Chicago’s Judge Cleary didn’t compel arbitration of an affirmative counterclaim by the debtor against the creditor that would be determined in the course of passing on the allowance of the creditor’s proof of claim.

7th Circuit, Illinois, Illinois Northern District