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Chapter 5 Causes of Action

A candle glowing in the dark, symbolizing investors dealing with corporate distress

Dealing with Corporate Distress 01: Hello Darkness, Our Dear Friend

A Series on the ABCs of ABCs, Business Bankruptcy & Corporate Restructuring/Insolvency Greetings, dear reader: It seems you’re interested in learning how to deal with corporate distress, and we’re glad you’re here. But let’s first make sure you got on the right plane. Maybe you . . . Are a C-suite executive of a business […]


Men walking through inventory in warehouse

Buying Operating Assets from a Distressed Seller

A Practical Guide to Assessing Legal Risk and Potentially Fraudulent Transfers    “One man’s rubbish is another man’s treasure.” -William & Robert Chambers Journal of popular literature, science and arts (1879)  “A little learning is a dangerous thing” -Alexander Pope, An Essay on Criticism (1709)    Buying operating assets from a financially distressed seller can […]


90 Second Lesson: What will your lender do if you default on a commercial loan?

QUESTION: Scott T,  emailed, asking, “I have a client who owns a few income-producing properties and she thinks she may not be able to make her next mortgage payments to her lender. What should I tell her to expect?” ANSWER: Once a loan default occurs or is looming, a proactive mortgage lender should be expected […]


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 […]


Third-Party Litigation Funding and Issues It Creates In Bankruptcy Cases – This Ain’t Your Father’s Contingency Fee Arrangement!

Third party litigation funding (“TPLF”) is, beyond a doubt, here to stay. In bankruptcy cases, TPLF arises in a number of contexts. First is the TPLF as a pre-petition secured or unsecured creditor—i.e. the TPLF source funded litigation and thereby acquired property rights in litigation proceeds or perhaps otherwise as a result. Second, in a […]


Being Proactive: Steps a Supplier Can Take in the Face of Potential Customer Bankruptcy

The impending bankruptcy of a retailer is one of the most stressful experiences that a supplier may face. The supplier is confronted not only with the potential loss of a major customer, but also with the possibility of significant financial losses on account of unpaid accounts receivable. A supplier often finds itself scrambling to mitigate […]


Fraudulent Transfer Remedies – How Much is Enough?

One of the most powerful tools in the Bankruptcy Code available to bankruptcy trustees (or other estate representatives) to maximize the recovery of creditors is the power to avoid and recover fraudulent transfers of a debtor’s property.  These include transfers that are made, or obligations that are incurred, by a debtor (a) with the actual […]


Dealing With Distress for Fun & Profit – Installment #16 – Super and Residual Priorities

This series was started with a broad overview of business bankruptcy, but our last few installments have focused on: unsecured creditors the priority scheme in bankruptcy protecting/collecting your claim In this installment, we draw on our discussion of the priority scheme, with a special focus on super and residual priorities. As previously discussed, not all […]


Litigation Funder Monetizes Portion of Fraudulent Transfer Judgment in Cutting-Edge Transaction

Gerchen Keller purchases a portion of the interest in proceeds of $213 million fraudulent conveyance judgment in innovative public sale. An interesting transaction took place on September 8, 2016. The chapter 7 bankruptcy trustee for Magnesium Corporation of America (“MagCorp”) sold a $50 million share of a $213 million judgment it has against fraudulent conveyance […]


Ponzi Scheme Lender May Be On The Hook, After All!

The Skinny The Sixth Circuit recently revived a trustee’s $17 million avoidance and claw-back suit against a lender, finding that the lender’s existing security interests could have been extinguished via novation. Impact: secured lenders entering into amended and restated loan documents should adopt definitive and irrefutable language demonstrating that the parties do NOT intend for the new […]


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