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Dueling Provisions: Creditor Prevails in Showdown Between Bankruptcy Code Sections
A Missouri bankruptcy court has permitted a creditor to take possession of spare aircraft parts and equipment from a debtor despite the fact that the creditor failed to perfect its security interest in the equipment. In an issue of first impression in the Sixth Circuit, the court held that under the plain language of Section 1110 of the Bankruptcy Code, a creditor, as a conditional vendor, had a right to take possession of the collateral pursuant to its agreement with the debtor, and that this right was not limited or otherwise affected by any other section of the Code (including Section 544) or by any power of the court. Vanguard Airlines, Inc. v. International Aero Components, Inc., 295 B.R. 908 (Bkrtcy.W.D.Mo.,2003).
Prior to filing for bankruptcy, Vanguard Airlines, Inc. entered into a transaction with International Aero Components, Inc. and GMAC Commercial Finance, LLC (hereinafter collectively referred to as “IAC” or ” creditor”), whereby the air carrier sold aircraft parts to IAC and simultaneously repurchased those assets from IAC on a fixed payment schedule. The agreement provided that IAC had the right to take possession of the aircraft parts in the event Vanguard defaulted. IAC did not perfect its security interest in the aircraft equipment by recording its interest with the Federal Aviation Administration or by filing a UCC-1 financing statement. Vanguard later defaulted on the agreement and filed for Chapter 11 relief. When the debtor failed to cure its default after filing for bankruptcy, IAC filed a proof of claim, asserting a security interest in the debtor's aircraft parts. The debtor filed an adversary proceeding alleging that the proof of claim was deficient. The debtor also sought to avoid IAC's unperfected security interest under ' 544. IAC then filed an amended proof of claim and an answer to the complaint, but neither document mentioned its rights under '1110. The creditor then sent the debtor a written demand to surrender and return the aircraft parts pursuant to '1110. The debtor refused and sought leave in the adversary proceeding to amend its pleadings to show that IAC was not entitled to relief.
In ruling for the creditor, the court began its substantive analysis by focusing on the interrelationship between '544(a) and '1110, and concluded that IAC's status as a conditional vendor under '1110 entitled it to collect on its debt free from the protections afforded to the debtor under '544. The court reasoned that: “the express and unambiguous language of Section 1110 provides that the right of IAC to pursue its collateral based on its underlying agreement is not limited by Title 11 or by any power of this Court.” It further asserted that “Congress intended to grant special protection to a limited class of aircraft financiers in drafting Section 1110,” and moreover, when Congress amended '1110 in 2000 it purposely included more expansive language.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?