Recent Articles

90 Second Lesson: What is a “prepackaged bankruptcy?”By The DailyDAC Editors • 06/14/2019
QUESTION: Jack B. wrote in the other day, asking us to explain what a prepackaged bankruptcy is. ANSWER: Rather than waiting until they file for bankruptcy, a debtor can work with its creditors pre-petition to formulate a plan of reorganization[...]
Dealing with Distress for Fun & Profit–Installment #20—A Primer on Plan Support Agreements & Restructuring Support AgreementsBy Jonathan Friedland • 06/07/2019
A written tour of business bankruptcy and its alternatives. This is the latest in the series, Dealing with Distress for Fun & Profit, which you can read from the beginning if you like. Our last two installments focused on the[...]
Mission Accomplished: Executory Contract Protections Extend Beyond Trademark LicensesBy Hugh McDonald • 05/31/2019
Tempnology Resolves the Treatment of Trademark Licenses Under Bankruptcy Law and More On May 20, 2019, the United States Supreme Court resolved what, according to the International Trademark Association, had been “the most significant unresolved legal issue in trademark licensing.”[...]
90 Second Lesson: If I File a Chapter 7 Bankruptcy, Are the Assets of My Single-Member LLC Safe From the Trustee?By The DailyDAC Editors • 05/24/2019
QUESTION: A small business owner emailed us, on behalf of a friend, to ask whether assets in a single-member LLC could be used by a Chapter 7 Trustee in the LLC member’s personal bankruptcy case to satisfy creditors’ claims against[...]
Fancy Filing: Can They File a Chapter 11 Bankruptcy Case Just to Gain a Litigation Advantage?By The DailyDAC Editors • 05/16/2019
The Answer Is: It Depends Debtors often use bankruptcy filing to gain an advantage in litigation. Whether or not they succeed depends on the facts and circumstances of the bankruptcy case. Let’s look at a sample case to determine how[...]
What Happens in the BVI, Doesn’t Stay In The BVI – Clawbacks of Fraudulent TransfersBy Patrick Fitzmaurice • 05/10/2019
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[...]
Section 363 Sale: Free and Clear of Claims That Are Backed By Strong Public PoliciesBy The DailyDAC Editors • 05/03/2019
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[...]
90 Second Lesson: Can my borrower file for bankruptcy just to keep me from foreclosing?By The DailyDAC Editors • 04/29/2019
  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[...]
The Road to an Assignment for the Benefit of Creditors (ABC): A Case StudyBy Howard Korenthal • 04/25/2019
This detailed story illustrates how a troubled company considered its duties and its options, then executed a strategy using an Assignment for the Benefit of Creditors (“ABC”) to mitigate successfully its potential losses. This story puts meat onto more skeletal[...]
90 Second Lesson: Secured Creditors and Toll ChargesBy The DailyDAC Editors • 04/16/2019
  QUESTION: An investment banker recently wrote in, saying this:  “I am currently helping a troubled company sell itself.  The proposed buyer wants to buy its assets through a 363 sale in Chapter 11 and is offering to pay the[...]
Chapter 11 Debtor’s Reporting ObligationsBy Richard E. Mikels • 04/11/2019
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[...]
Not Necessarily Free and Clear I: Purchasing Real Estate Property in a Section 363 SaleBy The DailyDAC Editors • 03/28/2019
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.[...]
File Early and Often: Filing and Amending Claims in a Bankruptcy CaseBy Michael Schwarzmann • 03/20/2019
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[...]
90 Second Lesson: What is a “UCC Article 9” Sale?By The DailyDAC Editors • 03/15/2019
QUESTION: Jack B. emailed, asking, “Please explain what an Article 9 sale is. My lawyer said that if I give a security interest to a lender, it can do an Article 9 sale.  What is an Article 9 sale?” ANSWER:[...]
Location, Location, Location – Where to File BankruptcyBy Lawrence V. Gelber • 03/13/2019
The Hows and Whys of Which Bankruptcy Venue to Choose Are you confused 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,[...]
When Your Customer Files for BankruptcyBy Michael A. Brandess • 03/06/2019
You Still Have Options In the Event of a Customer Bankruptcy When a customer files for bankruptcy, vendors with debts owed by the customer/debtor that arose before the commencement of the case (the “Petition Date”) can be exposed to considerable[...]
90 Second Lesson: I’ve been asked to sign an involuntary bankruptcy petition. Should I?By The DailyDAC Editors • 03/04/2019
QUESTION: The credit manager of an Akron-based company wrote, asking this: “One of our commercial accounts is pretty far behind in paying on our invoices. Another vendor approached me and asked me to join in signing an involuntary bankruptcy petition.[...]
A Chapter 11 Debtor Need Not Be BrokeBy Renee Fensin • 02/27/2019
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[...]
Commerical Bankruptcy LitigationBy The DailyDAC Editors • 02/25/2019
The 2019 edition of Commercial Bankruptcy Litigation was just released by West Publishing Company. This 2,000+ page treatise, with contributions from dozens of top firms across the US, is designed with the non-bankruptcy attorney intended to be its primary reader.[...]

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