Blogs

For the first time in over 40 years, New York has amended CPLR § 5004 and lowered its interest rate on money judgments founded upon consumer debt, which is generally defined as debts incurred “primarily for personal, family or household purposes”. Effective April 30, 2022, the Fair Consumer Judgment Interest Act (”FCJIA”) reduces from 9% Read More

On May 27, 2008, the District Court of the Southern District of New York issued its opinion upholding Judge Lifland’s decision in the Bankruptcy Court denying recognition of certain Bear Stearns hedge funds' Cayman Island foreign liquidation proceedings either as “foreign main proceedings” or as “foreign nonmain proceedings” under Chapter 15. In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 2008 WL 2198272 (S.D.N.Y. May 27, 2008)(Sweet, J.). The appeal was opposed only by the Amici Curiae. The court noted the issue involved appeared to be of “transcendent importance to the investment community and perhaps to society at large.”

The Bear Stearns hedge funds’ winding–up petitions in the Cayman Islands were precipitated by the funds’ losses in May, 2007 due to the U.S. sub-prime mortgage crisis. The Cayman Court appointed provisional liquidators who acted as the ”foreign representatives.“ The foreign representatives filed petitions in the Bankruptcy Court of the Southern District of New York under Chapter 15 of the Bankruptcy Code seeking recognition of the Cayman Island proceedings as “foreign main proceedings” or as “foreign nonmain proceedings.” Pursuant to section 1519 of the Bankruptcy Code, the foreign representatives sought to a of stay execution and litigation against the funds’ assets as well to the authority to adminster the funds’ assets. In September, 2007, the Bankruptcy Court issued its decision denying the foreign representatives’ petition for recognition as “foreign main proceedings” finding that the funds’ center of main interests (“COMI”) as defined in Chapter 15 was actually in the United States as the funds’ investment manager, back-offices, and book and records were located in the United States. The Bankruptcy Court also denied recognition as “foreign nonmain proceedings” as the funds did not establish that they had an “establishment” in the Cayman Islands as defined in Chapter 15.

The foreign representatives argued on appeal that the Bankruptcy Court failed to “accede to the principals of comity and cooperation.” They also argued that the lower court erroneously interpreted the COMI presumption and that the facts failed to support the court’s denial of main and nonmain recognition. The District Court affirmed the Bankruptcy Court's decision. The District Court held that the Bankruptcy Court correctly held that principles of comity do not figure in the recognition analysis. The Court stated that arguments based on comity and cooperation cannot overcome the plain language of Chapter 15. The Court noted that the legislative intent of Congress was to deny the recognition of foreign proceedings unless the debtor has a COMI or at least an establishment in the country of the foreign proceedings. The District Court also upheld the lower court’s interpretation of the COMI presumption and its findings of fact denying main and nonmain recognition.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

On May 16, 2007, the court issued its decision in the case of In re Thermoview Industries, Inc., ___ B.R. ___, 2007 WL 1447855 (Bkrtcy.W.D.Ky.)(Lloyd, J.), in which the Chapter 11 Trustee brought a preference action against a Canadian corporation. The court held that it lacked specific personal jurisdiction over the the Canadian creditor and dismissed the adversary proceeding.

The Canadian corporation had it principal place of business in Canada. It did not do business in the U.S. and it was not registered to do business in the U.S. The Debtors purchased items from the Creditor FOB the plant in Canada. The Trustee attempted to serve the Canadian Creditor by mail and further measures in compliance with the Hague Convention's requirements. The Trustee contended that the fact that the Debtor's purchased products FOB the creditor's Canadian plan was sufficient to confer specific personal jurisdiction. The Trustee did not contend that there was "continuous and systemmatic" contacts with the forum as is required for general personal jurisdiction.

The court noted that in order to establish the existence of specific jurisdiction, a three part test must be met: 1. the defendant must purposely avail himself of the privilege of acting in the forum state or cause a consequence in the forum state, 2. the cause of action must arise from the defendant's activities there, and 3. the acts of the defendant or consequences must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Machines Co., Inc. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968). All three elements must be met to invoke personal jurisdiction. LAK, Inc. v. Deercreek Enterprices, 885 F.2d, 1293, 1303 (6th Cir.1989).

As to meeting element number one, the court noted the Sixth Circuit Court of Appeal's preference for the "stream of commerce plus" approach in analyzing whether a defendant purposely avails itself of the privilege of acting in the forum state. Under this theory, the placement of a product into the stream of commerce, without more, is not an act of the defendant purposely directed toward the forum State.

The creditor sought dismissal of the complain based on lack of personal jurisdiction and insufficient service of process. The court noted that the record before the court showed that creditor was not registered to do business in the U.S. and that it in fact did not do business in the U.S. The court found merit in the creditor's arguments and dismissed the preference adversary proceeding.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

The Bankruptcy Court in the case of In re Grand Prix Associates, Inc., et al., 2009 WL 1410519 (Bankr. D.N.J. 2009) recognized the British Virgin Islands insolvency proceedings as "foreign main proceedings" under chapter 15. The foreign insolvency proceedings were pending in the Eastern Caribbean Supreme Court, High Court of Justice, BVI. The principal debtors invested in private equity limited partnership and partially funded the investments in exchange for a registered floating charge under BVI law against the assets of the principal debtors.

The Court looked to the following factors listed in In re Sphinx, Ltd., 351 B.R. 103, 117 (Bankr. S.D.N.Y. 2006) in making it recognition determination: the location of the debtor's headquarters, the location of those who actually manage the debtor (which may be the headquarters of a holding company), the location of the debtor's primary assets, the location of the majority of the debtor's creditors or of a majority of the creditors who would be affected, and the jurisdiction whose law would apply to most disputes.

Based on the application of these factors, the Court found that BVI is where the foreign debtors have their CoMI. The Court found that the foreign debtors have there only place of business in the BVI, the books and records are located in the BVI, the foreign debtors were organized in the BVI, etc. In addition the Court found that previously objecting parties were in support of recognition as a foreign main proceeding.

The Court noted that the Guide to Enactment of the UNICITRAL Model Law on Cross-Border Insolvency, upon which chapter 15 was based, allows the courts to expedite the evidentiary process but neither prevent the court nor an interested party from questioning the presumption that the foreign debtor's registered office is presumed to be the CoMI. The Court suggested that the court's decision in In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122 (Bankr. S.D.N.Y.2007) was a departure from In re Sphinx where the court enumerated useful factors in making the CoMI determination but also found that the court should defer to the creditors' acquiescence in or support of a proposed CoMI. The Bear Stearns court stated that the chapter 15 petition process should not become a "rubber stamp exercise" even when no objection is filed.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com