Word on the street is that Capmark liquidated its derivative portfolio pre-bankruptcy to avoid having to deal with the safe harbors in the Bankruptcy Code. Cash is still subject to the automatic stay, unlike derivative contracts.
Imagine, for a moment, if they sold their portfolio "too cheap," in a rush to liquidate before the petition date. Wouldn't this be a fraudulent transfer? "But wait," you say. "Section 546 clearly prohibits a trustee or DIP from bringing any sort of fraudulent transfer action related to a derivative contract." True, but what if a creditor moved to lift the automatic stay and pursue the action, non-derivatively, under the UFTA or UFCA (in New York)?
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One response to “Would this work?”
Interesting observation. I have to admit that I’m not too privy to the arcanes of bankruptcy law. I’d just like to know, are they actually getting away with it?