GCK On Law

Recent bankruptcy court opinions in the Southern District of New York diverge on whether certain Bankruptcy Code sections under which bankruptcy trustees may avoid prepetition transfers of property apply to foreign transactions.  “Extraterritoriality”, the concept of...

A dispute currently exists among the courts as to whether a lease terminated due to a default is terminated “by the expiration of the stated term of the lease.”  Sections 541(b)(2) and 362(b)(10) of the Bankruptcy Code provide: (b) Property of the estate does not...

Section 547(c)(2)(B) of the Bankruptcy Code was the former subjective component of the three-pronged test set forth in §547(c)(2) of the Bankruptcy Code, and involves the question of whether the transfer was “made in the ordinary course of business or financial...

The courts are divided on whether substantive consolidation can occur with a nondebtor. 2 Collier on Bankruptcy ¶105.09[1][c] (15th ed.rev.2005).  Some courts have allowed such consolidation. See, e.g., Fish v. East, 114 F.2d 177 (10th Cir.1940) (analyzing substantive...

Courts have been split on whether a pre-petition agreement whereby the debtor agrees to waive the protection of the automatic stay under Section 362 of the Bankruptcy Code (“Code”) is enforceable.  There are two general approaches: some courts have found that...