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Business Bankruptcy

What Happens in the BVI, Doesn’t Stay In The BVI – Clawbacks of Fraudulent Transfers

How Far Can the Trustee Reach? It is common practice that trustees will seek to recover or “clawback” fraudulent transfers made prior to the commencement of a Chapter 11 bankruptcy case. But what happens when all transfers by the debtor were fraudulent? And how far can the trustee reach to recover a transfer? Let’s look […]


Section 363 Sale: Free and Clear of Claims That Are Backed By Strong Public Policies

Under Section 363(f) Free and Clear Means Free and Clear: A Case Study Bankruptcy sales of assets under section 363(f) can bring more cash into the estate in part because the purchaser takes the assets “free and clear” of the liabilities of the debtor-seller. The Ormet[i] case illustrates that the “free and clear” quality of […]


90 Second Lesson: Can my borrower file for bankruptcy just to keep me from foreclosing?

  QUESTION: An exasperated loan officer emailed us, asking whether the borrower – a commercial real estate lessor – could really file a chapter 11 case just to evade a state court order to appoint a receiver in a foreclosure proceeding against the borrower’s building. ANSWER: If a debtor were to admit that it filed […]


Chapter 11 Debtor’s Reporting Requirements

Reporting Requirements Make the Debtor More Transparent One of the  central principles of bankruptcy is that a debtor should have the benefit of a “fresh start.” However, to accord such relief, the Bankruptcy Code, Bankruptcy Rules, and case law require transparency from the debtor and other parties in interest. As such, strict compliance with reporting […]


Not Necessarily Free and Clear I: Purchasing Real Estate Property in a Section 363 Sale

Just Because A 363 Sale Says Free and Clear, Does Not Mean It Is Free and Clear A bankruptcy debtor is offering commercial property in a section 363 sale. It is an attractive property and Lou is considering purchasing it. Lou has heard that a section 363(b) sale “cleans” the assets of all liens, claims, […]


File Early and Often: Filing and Amending Claims in a Bankruptcy Case

A Primer for Those Holding Bankruptcy Claims Against a Debtor Bankruptcy claims do more than simply determine the amount of money a creditor is owed or can receive as a distribution. Claims also can generate clout. Clout enables a creditor to sit on a creditor committee, have more leverage in negotiations, and claim a higher-priority […]


Location, Location, Location – How to Choose Bankruptcy Venue

The Hows and Whys of Which Bankruptcy Venue to Choose What is bankruptcy venue? Are you confused about where to file bankruptcy? Do you wonder why you should file a bankruptcy case here instead of there? An entity, and more so a group of entities, may be legally permitted to file for bankruptcy in any […]


Solvent Debtor? A Chapter 11 Debtor Need Not Be Broke

A Solvent Debtor Is Not an Oxymoron Suppose that your borrower or customer files a chapter 11 case.[i] You do not like this because you’ll almost certainly not collect the full amount owed to you and to get anything you’ll have to get involved with a bankruptcy case and hire attorneys. Your discontent becomes fury […]


90 Second Lesson: To Stalk or Not to Stalk? Why be a Stalking Horse Bidder?

QUESTION: Jamie S. emailed recently, asking “Can you please sum up the pros and cons of serving as the “stalking horse” in a bankruptcy sale? ANSWER: Yes, Jamie, we can. A stalking horse bidder plays an important role in many bankruptcy acquisitions, and one of the most important decisions confronting a purchaser in a bankruptcy acquisition […]


Strategic Alternatives For And Against Distressed Businesses

The 2019 edition of Strategic Alternatives For And Against Distressed Businesses was just released by West Publishing Company. This 1,800+ page treatise, which is a product of more than 100 contributors, is the only resource which provides a state-by-state comparison on a chapter-by-chapter basis of assignments for the benefit of creditors and receiverships. DailyDAC / […]


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