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The vicissitudes of consumer fortune appear to have led to the “asset protection” industry. A cursory Internet search of the phrase, “asset protection” produces pages of advice for “protecting” assets from creditors and, ostensibly, from bankruptcy trustees. Often, asset protection advice is bereft of any discussion of California exemption statutes — which often provide the most efficient and safest asset protection — and fails to admonish the unwary of powerful creditor rights. Most asset protection discussion forums ignore the consequences of a Chapter 7 bankruptcy filing should asset protection counter-measures be deployed in response to a creditor’s asset-hungry appetite. Ironically, some asset protection tools leave assets completely naked, and strip them of any protection afforded under exemption statutes.
By Jacob H. Marshall
How Lenders and Debtors can Minimize UST Fees and Maximize Creditor Recoveries
As predicted in the first part of this article (May, 2018), the new United States Trustee (UST) fee has had a disproportionate effect on middle-market, high-velocity cash flow companies. The best solution is for Congress to revisit the fee structure and refine it to reflect the realities of particular cases and the actual burden on the UST.
By Michael L. Cook
A defendant creditor in a preference suit may offset 1) the amount of later “new value” it sold to the Chapter 11 debtor against 2) the debtor’s earlier preferential payment to the creditor, the U.S. Court of Appeals for the Eleventh Circuit recently held.
By Daniel A. Lev
Part Two of a Two-Part Article
The ability of a debtor to reject a restrictive covenant under Section 365 or to sell free and clear of a covenant under Section 363(f) is limited and the obstacles are difficult to surmount. A possible solution, however, may surface if a debtor can demonstrate a change of circumstances under state law.
By Tom McParland
The U.S. Court of Appeals for the Third Circuit on Sept. 13 upheld a Delaware Bankruptcy Court’s decision to block a Florida-based energy company from collecting a $275 million merger termination fee against the bankruptcy estates of Energy Future Holdings Corp. and a subsidiary.