GCK On Law
Courts Conflicted Whether Bankruptcy Courts May Enter Final Judgments to Avoid Fraudulent Conveyances
Congress explicitly authorized bankruptcy courts to enter final judgments resolving disputes over fraudulent conveyances in 28 U.S.C. §157(b)(2)(H) which provides that “[b]ankruptcy judges may hear and determine all * * * core proceedings arising under title 11 * * *...
Are Option Agreements Executory Contracts under Section 365?
The Bankruptcy Code does not provide a definition of the term “executory contract.” The majority of courts apply the “Countryman test” to determine if a contract is executory, which provides that a contract is executory if the obligations of both the debtor and the...
Conflict in Application of Sections 506(1) and 1129(b)(2)(A)(iii) in Dirt for Debt Valuation
Section 1129 of the Bankruptcy Code governs confirmation of a Chapter 11 plan. Section 1129(b) of the Bankruptcy Code allows for confirmation of a plan over a creditor’s objection as long as certain requirements are met. One such requirement for cramdown is that the...
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...