Business Law Insolvency Law Committee

Court gave effect to the endorsement on a mortgage note that was endorsed for assignment by the original lender using the stamped signature of a person who had left the bank's employ years earlier. Read more

The Eleventh Circuit Court of Appeals holds that if a trustee does not assume a personal property lease before confirmation of a Chapter 13 plan, the leased property is no longer property of the estate and cannot be assumed by the debtor in the confirmed plan on behalf of the estate. In re Cumbess, 2020 WL 2897260 (June 3, 2020). Read more

The high-profile Chapter 11 of Sears produced another decision involving the high-profile Mall of America (“Mall”). MOAC Mall Holdings LLC v. Transform Holdco LLC (In re Sears Holdings Corp.), 2020 WL 2319194 (S.D.N.Y. May 11, 2020). Read more

A Texas bankruptcy court has held that a debtor may not amend its chapter 11 petition to proceed under subchapter V of the Small Business Reorganization Act of 2019 in a case pending prior to the effective date of the SBRA. [In re Double H Transportation LLC, 2020 WL 2549850, Case No. 19-31830 (Bankr. W.D. Tex. Mar. 5, 2020).] Read more

The California Legislature recently passed a budget trailer bill which, if signed by the Governor, would significantly alter the amount a homeowner can exempt from a forced sale of a home. Read more

In In re Shek, 947 F.3d 770 (11th Cir. 2020), issued January 23, 2020, the U.S. Court of Appeals for the Eleventh Circuit ruled that a late-filed tax return qualified as a return under 11 U.S.C. § 523(a)(1). Where all the other requirements for discharge were satisfied as stated in Section 523(a)(1), the tax debt could be discharged. This ruling disagreed with holdings by three other Courts of Appeal. Those courts held that a return which is filed late does not fall within the definition of “return” added to Section 523 by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Read more

On July 23, 2020, in Speier v. Brace, __ P.3d __, __, 2020 WL 4211750, 2020 Cal. LEXIS 4642 (July 23, 2020), the California Supreme Court issued an opinion answering questions posed by the Ninth Circuit Court of Appeals in Brace v. Speier (In re Brace), 908 F.3d 531 (9th Cir. 2018). Read more

In Brace v. Speier (In re Brace), 566 B.R. 13(9th Cir. BAP 2017), the United States Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”) affirmed a ruling by the bankruptcy court holding that, where the avoidance of transfers of interests in real properties restored title to a married couple as joint tenants, California’s community property presumption (California Family Code § 760) (the “Community Property Presumption”) prevailed over California’s record title presumption (California Evidence Code § 662) (the “Record Title Presumption”). Read more

The Nevada Supreme Court determined, based on a Nevada statute, that directors and officers of a corporation are not liable for acts or failures to act unless there is a breach of fiduciary duty involving intentional misconduct, fraud or a knowing violation of law. The Nevada Supreme Court did not address exclusions listed in the Nevada statute based on articles of incorporation or corporate governance documents providing for the liability involving other acts. Read more

The United States District Court in New York ruled that Amazon, as an online marketplace operator, was not liable for damages caused to an online buyer by a defective product sold by a third-party vendor based on strict liability, negligence, or breach of warranty claims. Philadelphia Indemnity Ins. Co. v Amazon.com, Inc., 2019 WL 6525624 (E.D. NY 2019). Read more