Real Estate

Real Estate June 2018

Real Estate June 2018

Trustees, Beware: § 548 Provides Cause of Action to Avoid Transfers

Bankruptcy trustees are armed with several familiar tools to recover assets for the benefit of the bankruptcy estate. One commonly used tool is state law avoidance powers, which is granted to trustees by § 544(b). However, trustees (and their attorneys) should be aware that § 548 provides an additional, independent cause of action to avoid transfers. The importance of this additional federal remedy was illustrated recently in the Northern District of Iowa.

Can Debtors Claim a Homestead Exemption in One State if They Bought a House in Another State and Plan to Leave?

Section 522(b)(3)(A) of the Bankruptcy Code generally permits a debtor to claim exemptions under the state or local law applicable on the date of the filing of the petition.[1] Which state or local exemption scheme applies is determined by a debtor’s domicile during the 730 days immediately preceding the petition date, but what happens if you live in two places?

Treatment of Mechanic’s Liens in the Wake of Construction Failures

The collapse of a commercial construction project may result in reorganization or liquidation through an insolvency proceeding overseen by a bankruptcy trustee or receiver. As part of the wind-down process, following the liquidation of assets the fiduciary has an obligation to equitably distribute any remaining and recovered assets to the estate’s creditors. Consequently, in order to properly allocate the assets, the fiduciary has a duty to analyze all creditor claims, including statutory lien claims.

Mechanic’s Lien Validity

Real Estate January 2017

Real Estate January 2017

The Interplay Between Sections 363 and 365: Trap for the Unwary Lessee, Tool for the Trustee, or Both?

A recent opinion issued by the Ninth Circuit Court of Appeals in the case of Pinnacle Restaurant at Big Sky LLC v. CH SP Acquisitions LLC( In re Spanish Peaks Holdings II LLC)[1] affirmed a holding that would allow, under certain circumstances, the sale of commercial real estate in a bankruptcy case to be free and clear of all liens, claims and encumbrances, including leasehold interests that are generally protected under § 365(h) of the Bankruptcy Code.

In re Delaware Sports Complex LLC

Three men had a vision to develop a sports complex in Middleton, Del. They formed a limited liability company called, fittingly, Delaware Sports Complex LLC (hereinafter “DSC”)[1].

DSC was eager to develop its 170-acre sports complex — perhaps too eager, because it entered into a lease one (1) year before the LLC had been legally created. However, the lease contained a term wherein DSC represented and warranted that it was a duly formed and created Delaware LLC.

Real Estate September 2017

Real Estate September 2017

Real Estate June 2017

Real Estate June 2017

Bona Fide Purchaser vs. Subsequent Lienholder: A Distinction with a Difference (in Ohio)

In the recent case of In re Oakes,[1] the chapter 7 trustee filed an adversary complaint seeking to avoid PNC Mortgage Company’s mortgage on real property owned by the debtors because of a defective acknowledgment of the debtors’ signatures. No one denied that the mortgage was defective or that there was precedent to avoid a mortgage containing a “blank” acknowledgment clause under § 544(a) and Ohio law, but PNC sought to dismiss the avoidance action based on the newly enacted Ohio Rev.