State and Federal IRA Exemptions Don’t Always Jive
Though Eleventh Circuit (Alabama, Georgia, and Florida) appellate decisions do not control decisions in the Fifth Circuit (Louisiana, Mississippi, and Texas), they can be persuasive. The Eleventh Circuit Court of Appeals ruled in Yerian v. Webber (In re Yerian), 18-10944 (11th Cir. June 26, 2019) that even though an IRA [...]
NO MATTER THE CIRCUMSTANCES, STUDENT LOANS ARE INCREASINGLY DIFFICULT TO DISCHARGE IN A BANKRUPTCY
Thomas v. Department of Education (In re Thomas), 18-11091 (5th Cir. July 30, 2019) The U.S. Court of Appeals for the Fifth Circuit recently ruled that a debtor could not discharge her student educational loans, despite her decline in health and a highly sympathetic situation. This particular debtor, Ms. Thomas, [...]
Theft of Trade Secrets Does Not Always Equate to the Non-dischargeability of a Debt in Bankruptcy
TCK Aerospace Inc. v. Muhs (In re Muhs), 18-1372 (4th Cir. May 8, 2019) Things do not always seem to be what they appear to be. A judgment was entered against the debtor for misappropriation of trade secrets under the Uniform Trade Secrets Act (“UTSA”). Yet, the Fourth Circuit [...]
The Clash Among Divorce, Bankruptcy, and IRAs/Pensions/Profit-Sharing Plans
Attorneys practicing in the family law area and those individuals going through the process of divorce need to be cognizant of the ramifications of a property settlement and the respective financial situations of everyone involved when allocating exempt assets such as IRAs, Pension Plans, or Profit Sharing -- as discussed [...]
TENANTS OF REJECTED LEASES IN BANKRUPTCY MAY NOT HAVE TO PAY RENT
When a landlord files bankruptcy and rejects a lease, the tenant has the right to remain in the premises. Moreover, the tenant has the right to offset whatever damages it may have against the bankrupt landlord. The Bankruptcy In Revel Entertainment Group LLC v. Idea Boardwalk LLC (In re Revel [...]
“Mere Conduits” of Fraudulently Conveyed Funds Continue to Face Scrutiny
There are two basic ways of proving a fraudulent conveyance under the United States Bankruptcy Code (sometimes referred to as the “Code”) and the Uniform Fraudulent Transfer Act. The first is known as the subjective test, i.e. showing an intent to hinder, delay, or defraud the transferor’s creditors. The second [...]
Tough Road for Sears — Leverage for Landlords?
When Sears filed bankruptcy on October 15, 2018, it announced that it would close 142 under-performing stores. But determining the aggregate number of store closings has been difficult. Early in 2018, Sears Holdings said it would close 166 stores this year. In May, the company identified 100 unprofitable stores and [...]
An Otherwise Enforceable Anti-Assignment Clause in a Lease Will be Treated Differently in Bankruptcy
What appears to be one thing is not always the case. Take an anti-assignment provision of a lease. Outside of bankruptcy, such a provision would be enforced. On the other hand, Bankruptcy Courts will not enforce anti-assignment provisions in leases. In Haggen Holdings LLC v. Antone Corp. (In re Haggen [...]
Fallout from Retail Bankruptcies — Landlords and Junior Creditors v. Private Equity
The June 8, 2018 article in Bloomberg, “Private Equity Comes Under Fire” written by Eliza Ronalds-Hannon and Steven Church1, highlights the tensions that exist between landlords and junior creditors on one side and private equity on the other in retail-related bankruptcies. The article discusses the bankruptcies of Claire’s, Nine [...]
Is the Retail Apocalypse Overstated? (How to Deal with a Retail Bankruptcy)
There were just shy of 7,000 store closures of major U.S. retail chains in 2017. Many of these closures were skewed toward apparel retailers and regional malls. Yet, there are positive signs. Regional malls, which were once heavily weighted with apparel retailers, are now becoming more diversified, offering grocery stores [...]
