2009 Chapter 11 Recent Developments (Part I)

held itself out as the owner of the Notes.

Issues: Whether The MRA is a 'repurchase agreement' under the Bankruptcy Code and whether the 'safe harbor' provisions of §§ 559 and 555 apply.

Rules: Section 559 of the Bankruptcy Code provides an exception to the general rule that ipso facto clauses are not enforceable in bankruptcy and "allows a non-debtor counterparty to a 'repurchase agreement' (as defined in section 101(47) of the Bankruptcy Code) to exercise its contractual right under an ipso facto clause to liquidate, terminate or accelerate the repurchase agreement. Section 555 provides a similar protection to counterparties to a 'securities contract.' So, if either §§ 559 or 555 is satisfied, a non-debtor counterparty's enforcement of its rights under an ipso facto clause is not prohibited by §§ 365(e) or (a).

Holding: Counts I - IV are dismissed and four of the five requests for declaratory judgment are dismissed.

(1) The safe harbor provisions of §§ 555 and 559 apply to the MRA and thus Lehman did not violate the automatic stay when it exercised its rights under the MRA after AHMIC had filed for bankruptcy.

Reasoning:

(1)

Pursuant to the definition of "mortgage related securities" in section 3 of the Securities Exchange Act of 1934 (incorporated by the Bankruptcy Code), the Notes are interests in mortgage loans. Moreover, under the terms of the MRA, the MRA is a repurchase agreement. Therefore, § 559 is applicable.

(2)

Additionally, under certain trading confirmations that were submitted to the court, which specifically identify the buyer and seller of each trade under the MRA, Lehman Brothers was the sole counterparty to the transactions at issue. And, under the definition of a 'securities contract' in § 741 of the Bankruptcy Code, the MRA is clearly a securities contract since it is a repurchase agreement for an interest in a mortgage loan. Lastly, the court found that Lehman Brothers is a stockholder as defined in § 101(53A) of the Bankruptcy Code.

(3)

The bankruptcy court additionally found that Article 9 of the UCC did not apply to the MRA since the MRA is a purchase and sale agreement and not a loan. Therefore, the commercial reasonableness standard of Article 9 does not apply to the foreclosure / liquidation of the Notes under the MRA.

(4)

For the same reasons, the bankruptcy court dismissed the remaining claims against Lehman, some with prejudice and some without prejudice with leave to re-plead. However, as for the claim for turnover of estate property, the bankruptcy court noted that because the claim to such property is contested, such a request is premature at this time.

In re Pro-Fit International Limited, et. al., 391 B.R. 850 (Bankr. C.D. Cal. 2008)

Facts: The debtors filed a petition for recognition under chapter 15 of the bankruptcy code on May 21, 2008 and were waiting for the recognition hearing. Prepetition, the debtors were defendants in litigation in a U.S. district court. The debtors lost the litigation on summary judgment on May 19, 2008; the plaintiff obtained an order attaching the U.S. assets of the debtors on May 21, 2008. The debtors filed a motion seeking provisional relief under § 1519 asking the court to apply the § 362 stay to enjoin the attachment order. The judgment creditor, Libra Securities LLC ("Libra"), opposes the motion on the grounds that the debtors have not followed proper procedure by not filing an adversary proceeding to seek an injunction. Issues: Whether the debtors are required to bring an adversary proceeding under Part VII of the Bankruptcy Rules for § 362 to be imposed under the provisional relief allowed in § 1519.

Rules: "Provisional application of §§ 362 and 361 [and a number of other provisions of the