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Oh What A Difference A Day Makes: Ninth Circuit Bankruptcy Appellate Panel Holds That Check Written Before Bankruptcy Filing, But Honored After Bankruptcy Is Post-Petition Transfer

“Transfers,” and when they occur, are important under the Bankruptcy Code for a number of reasons.  Trustees may recover as a “preference” any “transfer…to of for the benefit of a creditor…for or on account of an antecedent debt…made within 90 days before the date of the filing of the petition…that enables such creditor to receive…

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Supreme Court Patent Case Could Affect Bankruptcy Court Authority

The bankruptcy system is facing a potential upheaval from an unlikely front: a patent dispute. The U.S. Supreme Court has heard oral arguments and is now considering the case Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, and its separation of powers issues could have a drastic effect on the operation of American…

Snapshot of the New Federal Bankruptcy Rules

In April 2017, the U.S. Supreme Court gave Congress a number of proposed amendments to the Federal Rules of Bankruptcy Procedure (FRBP). Congress approved those amendments, and they became effective on December 1, 2017. Some of the advantages in the new amendments go to consumers who declare bankruptcy in Federal Court. The lending and banking…

Merit Management Group, LP v. FTI Consulting, Inc.: A Unanimous Supreme Court Opinion Leaves Unanswered Questions

On February 27, 2018, the United States Supreme Court issued its opinion in Merit Management Group, LP v. FTI Consulting, Inc. to resolve conflicting Circuit Court interpretations of Bankruptcy Code Section 546(e).  Although the Merit opinion is unanimous and appears straightforward on first reading, fertile grounds for future litigation remain. Section 546(e) is commonly referred…

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Live By The Choice of Law Provision, Die By The Choice of Law Provision

Many parties, particularly large companies operating in multiple states, include provisions in their standard contract forms specifying that the law of a particular state governs the transaction.  The choice of applicable law is generally law with which the company is familiar, such as the law of the state where its headquarters is located, or law…

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Trends in Commercial and Residential Real Estate

An uncertain political and economic environment may increase the perceived risk that lenders take when they loan funds against real estate. Identifying developing trends in commercial real estate can help a lender manage its risk and underwrite loans that are secured by properties that will hold or increase in value. The lending and banking attorneys…

Senate Action Reverses CFPB Rule, Re-Opens Door to Arbitration Clauses

On October 23, 2017, the U.S. Senate voted by a narrow margin to repeal the Consumer Finance Protection Bureau’s (CFPB) July limit on arbitration clauses in consumer financial contracts. The repeal of the rule effectively limits the institution of class action lawsuits in consumer financial disputes and allows banks and other financial institutions to elect…

Benefits of Legal Document Review Services

When lenders face changing circumstances regarding a loan, the wise course of action is to have a trained eye review the legal and practical implications of a lender’s decision to assert a default, exercise remedies under the loan documents, or to settle the loan. The world of lending gives rise to a surfeit of documents, any…

The Role of a Creditors’ Rights Attorney in Bankruptcy

A debtor’s bankruptcy is a threat to the lender’s interest. In some cases, the creditor’s role in a bankruptcy proceeding is simply a matter of procedure. File forms, get in line, and hope for the best. In other cases, the legal questions are far more complex.  In such cases, consultation with a creditors’ rights attorney may be…

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