Every dollar counts, and for debtors that are party to tax-sharing agreements (“TSAs”), significant dollars may be at stake. As the Sixth and Ninth Circuit Courts of Appeals have demonstrated, when dealing with tax refunds and TSAs, it is not always clear that a debtor’s estate is entitled to every dollar.
Most debtors that are contemplating chapter 7 are on the brink of economic disaster. They have creditors harassing them, calling them nonstop, garnishing wages and income tax returns, and seizing their vehicles to satisfy judgments. These hardworking individuals simply do not have the extra funds to pay a bankruptcy attorney up front in full to file a bankruptcy case to stop the creditors.
Section 547 of the Bankruptcy Code allows a debtor to avoid and recover transfers that were made in the 90 days prior to filing for chapter 11, provided that the payments meet certain criteria. This criteria can include the following: (1) the payment was made to or for the benefit of the creditor in the form of cash or goods; (2) the payment was for a prior debt (not cash-on-delivery or cash-in-advance); (3) the debtor was insolvent;
In the spirit of the New Year, and in the spirit of par-plus-interest recoveries for secured lenders everywhere, we would like to share five New Year’s resolutions culled from recent case law and our experience assisting secured creditors in pre-bankruptcy planning for a defaulted borrower.
Beginning in 2012, a distinguished group of bankruptcy attorneys, academics and judges known as the American Bankruptcy Institute (ABI) Commission to Study the Reform of Chapter 11 (the Commission) held periodic meetings throughout the U.S. to analyze and discuss comprehensive reforms to chapter 11 of the Bankruptcy Code. The results of their analyses and recommendations were published on Dec.
Debtors, whether a corporation or an individual, often need to divest of real estate holdings while under bankruptcy protection. Section 363 of the Bankruptcy Code provides an avenue (and often the only avenue) by which a trustee or debtor[1] in possession (DIP) may sell property of the estate.[2] Specifically, § 363(b)(1) provides that a trustee or DIP may sell property of the estate “other than in the ordinary course of business” after “notice and a hearing.”[3]
On March 28, 2014, the U.S. Bankruptcy Court for the Northern District of California denied the debtor’s motion in In re BR Festivals LLC[1] to employ a chief restructuring officer (CRO) as part of the chapter 11 liquidation of the debtor’s estate. The court provided an additional wrinkle in attempting to retain a CRO.
Football season is upon us, and in locker rooms across the country, coaches will be telling their teams, “Winning isn’t everything; it’s the only thing.” Unfortunately for plaintiffs suing debtors in bankruptcy adversary proceedings, winning isn’t the only thing that matters. In fact, winning a judgment can be less than half of the battle.
On Oct. 31, 2014, Hon. Michael B. Kaplan of the U.S. Bankruptcy Court for the District of New Jersey issued an opinion addressing the rights of trademark licensees following a sale of substantially all assets under § 363 of the Bankruptcy Code.[1] The decision arose out of the Crumbs Bake Shop bankruptcy case and the sale of substantially all of the debtors’ assets to Lemonis Fischer Acquisition Co. LLC (LFAC), which was approved by the bankruptcy court in August 2014.
This two-part article discusses how the United Kingdom and the United States have become the two main jurisdictions where debtors outside of such jurisdictions (foreign debtors) have been able to successfully restructure their businesses.
