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Secured creditors and debtor-in-possession (DIP) lenders that rely on standard carve-out provisions to limit the impact of bankruptcy professional fees on their collateral would be well-advised to take notice of a U.S. Bankruptcy Court decision from earlier this year. Judge Christopher S. Sontchi of the United States Bankruptcy Court for the District of Delaware (the Court) issued an opinion in In re Molycorp, Inc. (Case No. 15-11357) on Jan. 5, 2017 that serves as both a cautionary tale and an instruction manual.
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Authority to File Chapter 11: A Matter of Contract or Public Policy?
By Steven B. Smith and Rachel Ginzburg
If you think public policy favoring the freedom to file a Chapter 11 trumps the freedom to negotiate specific restrictions to such a filing, think again.
Supreme Court’s Denial to Hear Student Debt Discharge Case Leaves Ambiguity
By Joseph Pack and Jessey Krehl
With federal student loan forbearance set to expire at the end of September, many hoped the high court would provide, if not clarity, at least uniformity for the millions of Americans who currently are on the hook for student loans.
Abbreviated Name Makes UCC Financing Statement Defective
By Rudolph J. Di Massa Jr. and Keri L. Costello
In In re Bryant, the U.S. Bankruptcy Court for the Middle District of Georgia determined that a lender’s UCC-1 financing statements were “seriously misleading” under the Georgia Commercial Code because the financing statements identified the individual debtor with his middle name abbreviated.
Sixth Circuit: Section 363 Sale Not ‘Free and Clear’ of Creditor’s Claims
By Francis J. Lawall and Kenneth A. Listwak
Buyers generally assume that the multi-page “free and clear” order, which typically follows the sale hearing, will insulate them from any of the seller’s current (and often) future liabilities. However, that is not always the case.
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