Unsecured Trade Creditors Committee Newsletter

vol 15, num 1 | January, 2017

Unsecured
Trade Creditors

AN ABI COMMITTEE NEWSLETTER

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► IN this issue:

Court Holds that Trustee may Avoid Transfers Occurring up to 10 Years Prior to Petition Date by Stepping into Shoes of IRS Pursuant to 11 U.S.C. § 544(b)
Ninth Circuit BAP Finds that the Equitable Power of Substantive Consolidation Survived Law v. Siegel
New Webinar to Cover Appeals Process
Updates to Social Media: LinkedIn

Court Holds that Trustee May Avoid Transfers Occurring up to 10 Years Prior to Petition Date by Stepping into Shoes of IRS Pursuant to 11 U.S.C. § 544(b)

SIMON E. FRASER
Cozen O’Connor
WILMINGTON

Bankruptcy trustees often find that by the time a case has commenced, potential fraudulent transfers are already so far in the past that they are beyond the reach of the two-year look-back period under § 548 of the Bankruptcy Code. When that happens, a trustee can turn to Bankruptcy Code § 544(b), which allows him or her to stand in the shoes of “a creditor holding an unsecured claim” and assert whatever rights that creditor may possess under “applicable law” to avoid fraudulent transfers made by the debtor. The look-back period provided in the “applicable law” is what then governs the trustee’s avoidance action under § 544(b).

Ninth Circuit BAP Finds that the Equitable Power of Substantive Consolidation Survived Law v. Siegel

Paul R. Hage
Jaffe Raitt Heuer & Weiss
Southfield, MI

Editor’s Note: This article was previously published in the August, 2016 edition of the American Bankruptcy Institute Journal.

In In re Clark,[1] the Bankruptcy Appellate Panel for the Ninth Circuit affirmed a bankruptcy court’s determination to substantively consolidate an individual’s chapter 7 bankruptcy estate with the assets of a non-debtor limited liability company ranch and a trust that the debtor controlled. Notably, after summarizing the law governing substantive consolidation in the Ninth Circuit, the BAP rejected the debtor’s argument that the Supreme Court’s ruling in Law v. Siegel took away the bankruptcy court’s equity power to substantively consolidate a non-debtor’s assets with the assets of a debtor.

The ABI Bankruptcy Litigation Committee presents a must-see webinar that will explore the nuts and bolts of bankruptcy appeals – the statutes, rules, and decisions governing how to obtain appellate review of different types of bankruptcy court orders and the mechanics of initiating and prosecuting appeals. The panel will also discuss strategic considerations, including whether and how to obtain a stay pending appeal, standards of review, and — most importantly — how to win your appeal. The distinguished panel of bankruptcy and circuit appellate judges and practitioners will offer their views on best practices for brief writing and conducting persuasive oral arguments in both intermediate appellate courts and circuit courts, as well as common errors to avoid in oral argument.

Updates to Social Media: LinkedIn

As ABI's LinkedIn Company site offers a better channel for engaging and providing targeted content to followers than ABI's LinkedIn Group site, ABI will be phasing out the group site. ABI's LinkedIn Company page. , with nearly 3,000 followers and growing, provides the latest news, as well as event and networking opportunities, including special social media discounts. If you haven't already, be sure to join ABI's LinkedIn Company page to keep up with insolvency news from ABI and your colleagues!