GCK On Law
Tests to Determine Whether a Bankruptcy Court Retains Post Confirmation Jurisdiction Over Disputes
Under 28 U.S.C. §1334, a federal district court has original jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Significantly, Section 1334 does not distinguish between a court’s pre-confirmation and...
Adequate Protection of a Secured Creditor Through Use of Equity Cushion
For an oversecured creditor, a creditor with collateral that has a greater value than the amount of the creditor’s allowed secured claim, case law has established that the existence of an equity cushion may, in and of itself, constitute adequate protection, provided...
Conflict as to Whether New Value Under Section 547(c)(4) Must Remain Unpaid
Actions to avoid preferential transfers under Bankruptcy Code 547(b) are subject to certain defenses and limitations, including the ‘new value’ defense of Section 547(c)(4) which provides as follows: The trustee may not avoid under this section a transfer - to or for...
Courts Divided Whether Decision to Forgo Filing Mechanics Lien is a Contemporaneous Exchange
The courts are split on whether the “contemporaneous exchange for new value” defense of Section 547(c)(1) of the Bankruptcy Code applies when a creditor foregoes perfecting a mechanic’s lien in exchange for payment. The identical issue exists in the context of...
Courts Divided in Effect of Termination of Stay Under Bankruptcy Code Section 362(c)
Section 362(c) of the Bankruptcy Code governs termination of the automatic stay. Under Section 362(c)(3)(A) of the Bankruptcy Code if a debtor has had a case pending within the preceding one-year that was dismissed, then "[t]he stay under Section (a) with respect to...