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The constructive fraudulent transfer provisions of the Bankruptcy Code (§548(a)(1)(B)) and state law (made applicable in bankruptcy cases under Bankruptcy Code §544(b)) give the bankruptcy estate representative (e.g., a Chapter 11 trustee, debtor-in-possession or creditors’ committee (through derivative standing, discussed below)) the right to avoid a transfer of an interest of the debtor in property, or any obligation incurred by the debtor if the debtor, among other things: 1) received less than reasonably equivalent value in exchange for such transfer or obligation incurred; and 2) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result thereof. Generally, “less than reasonable equivalent value” means less than fair consideration (there is a range of value of what would be considered fair consideration), and “insolvency” means the debtor had liabilities (including appropriately valued contingent liabilities) in excess of the fair market value of its assets.
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Landmines In Bankruptcy Appellate Practice, Part III
By Michael L. Cook
When courts have made important exceptions in the past year, they have either added a gloss on the Judicial Code, corrected lawyers’ errors, filled in statutory gaps, or clarified the relevant statutory language.
A Strategic Guide for Lenders to Navigate Anticipated Distressed Loan Fallout
By Jay Steinman and Karina Leiter
The steps outlined in this article offer a strategic guide for lenders, empowering them to navigate the complexities of loan workouts and enforcement actions with resilience and foresight.
Third Circuit: Bankruptcy Code Mandates Appointment of Examiner In Chapter 11 Cases
By Francis J. Lawall and Brenden S. Dahrouge
The Third Circuit recently held in 'In re FTX Trading' that the plain text of Section 1104(c)(2) mandates the appointment of an examiner under the specified conditions set forth. As a result, the FTX decision will carry significant implications for large and medium-sized bankruptcy cases.
By Lawrence J. Kotler and Ryan Spengler
The Central District of California court held that a bankruptcy court’s administration of cannabis-related state court claims against a debtor’s estate is not a violation of the Controlled Substances Act.