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power and the essential ingredients of the federal claim for relief. Relying on Arbaugh, 546 U.S. 500, the Court explained that a statutory limitation on coverage is not jurisdictional (there, a requirement of 15 or more employees), and said that Courts are not required to make such a determination sua sponte. The Court also noted that section 303(b) did not use jurisdictional language, and analogized the situation to Pugh, 158 F.3d 503 holding that a statute setting time limits for commencing adversary proceedings was not jurisdictional. In Trusted Media, the jurisdictional grant was over involuntary proceedings which the case was. Finally, the Court reasoned that the provision permitting the addition of creditors was inconsistent with the notion that the three creditor requirement was jurisdictional.
Some recent sale cases of interest include the following:
In re Reliant Energy Channelview, LP, 397 B.R. 697 (D. Del. 2008) (bankruptcy court denied breakup fee to prospective bidder, approved sale procedures and sale took place; prospective bidder appealed sale order; debtor said appeal was too late, held, order approving sale procedures was interlocutory and appeal from final sale order was timely).
In re Beach Dev. LP, 50 BCD P 24 (5th Cir. 2008) (appeal of sale of debtor's c/a moot; appellant claimed sale was not in good faith and court held good faith means lack of fraud, collusion or an attempt to take advantage of other bidders; here, appellant argued purchaser increased bid to sabotage proposed settlement, but court held no fraud or collusion between sale parties).
Per-Co, Ltd. v. Great Lakes Factors, 50 BCD P 225 (6th Cir 2008) (debtor which took over business and good receivables and overlapped functions with seller was subject to successor liability on a "continuation of business" theory, and secured creditor to predecessor had priority over unsecured creditors of debtor; not necessary that acquiring entity take over all assets and here substantially all assets were transferred to the debtor).
In re TOUSA, Inc., 393 B.R. 920 (Bk. S.D. Fla. 2008) (restrictive covenant gave lot owner power to prevent any sale of lots in subdivision for less than $325M even though that price became unreasonable in light of market developments; court held debtor could sell free and clear of covenant and at a lesser price). See also In re Ray, 49 BCD P 165 (Bk. W.D. Wash. 2008)(sale free and clear of right of first refusal; later state action for specific performance was impermissible collateral attack).
In re Aloha Airlines, Inc., 51 BCD para 98 (Bk. D. Haw. 2009) (vacates sale where reporter was excluded from sale as contrary to public sale and open proceedings).
In re Spillman Dev. Group, Ltd., 401 B.R. 240 (Bk .W.D. Tex. 2009) (credit bid in full amount of debt is the equivalent of cash and satisfies guarantied debt and releases guaranty notwithstanding any limiting language in guaranty; also releases additional collateral)
Two recent decisions permit marshaling against the US as holder of a tax lien to require the
©2009 Jonathan M. Landers
