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Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The Third Circuit said no when it held that a lessor’s pre-bankruptcy termination of the debtors’ lease and purchase option “was not a transfer under Bankruptcy Code §548(a)(1)(B).” In re Pazzo Pazzo Inc., 2022 WL 17690158 (3d Cir. Dec. 15, 2022). But the Seventh Circuit held that a Chapter 11 debtor’s pre-bankruptcy “surrender of [two] … leases to [its landlord] could be regarded as a preferential [or fraudulent] transfer.” In re Great Lakes Quick Lube L.P., 816 F.3d 482 (7th Cir. 2016). Reversing the bankruptcy court’s holding that “the terminations were [not] transfers, … preferential or fraudulent,” the Seventh Circuit stressed that the debtor’s termination of its “interest in property — … the leaseholds — which it parted with by transferring that interest to [the landlord],” fell within the broad definition of “transfer” in the Bankruptcy Code (Code). Id. at 485. A close reading of both Pazzo and Great Lakes, however, shows that the circuits are not split, and that the reasoning of both courts can be reconciled on their facts.
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By Howard B. Epstein and Theodore A. Keyes
Many businesses have sought to recover their pandemic losses under commercial property insurance policies, only to be denied coverage. A significant number of policyholders have filed lawsuits challenging these disclaimers, primarily in state courts. But to the dismay of the insureds, a growing majority of high state courts have sided with the insurers in these disputes.
Navigating the Intersections of Commercial Real Estate and Eminent Domain Actions
By Ellen Smith and Elizabeth Story
For real estate attorneys, knowing how to navigate around eminent domain actions in the midst of various transactions and operations is critical to best position clients for the future condemnation conundrum.
A Prepackaged Bankruptcy Could Be the Answer to a Mortgage Default
By Timothy Little, Scott Vetri, Julie Lee and Peter Siddiqui
This article discusses the value of prepackaged bankruptcy as an alternative route for addressing commercial mortgage defaults in high tax jurisdictions.
NJ Supreme Court: Commercial Property Owners Have a Duty to Maintain Abutting Sidewalks
By Colleen Murphy
In a 4-3 decision on June 13, the New Jersey Supreme Court reversed an Appellate Division opinion in a slip-and-fall case, concluding that all commercial landowners have a duty to maintain public sidewalks and are liable to pedestrians who are injured as a result of their negligent failure to do so.