Bankruptcy Litigation

Bankruptcy Litigation with an Advantage

We approach bankruptcy litigation cases aggressively, efficiently, and we do not believe that one approach works in all cases. Whether you need us to assert a claim against a debtor or defend a lawsuit against you by a debtor or trustee, we will provide you with an initial assessment of the case. This initial assessment includes both the benefits and the risks that are foreseeable at the outset of the case, as well as a projected budget of the legal expenses so you can make prudent and informed decisions. Throughout the various stages of the litigation, we will reassess your case and adjust our litigation strategy as needed to provide you with the most advantageous position. At the same time that we vigorously serve as your advocate, when feasible, we will keep the door open for negotiating a compromise and settlement that you find acceptable.

What We Do

Bankruptcy litigation is different than a typical lawsuit where one or more parties file a lawsuit against one or more parties in order to obtain a money judgment for damages. Chapter 11 bankruptcy proceedings are a series of hearings, starting with “first day motions,” brought by the Debtor-in-Possession (DIP) before most creditors are prepared to respond. Some of the hearings may only affect certain constituents, such as suppliers or landlords, but each step shapes the outcome of the case. A creditor may file its proof of claim and not receive any notices from the debtor or the court that appear important for over a year. And then receive an objection to the claim or a demand for turnover of funds from the debtor or a trustee. Suddenly, the creditor is required to defend its claim and defend a lawsuit brought by the debtor or a trustee requesting that the creditor is required to repay whatever payments it received prior to the bankruptcy filing. Our bankruptcy attorneys who regularly appear in court will be your advocate in any of these circumstances.

Here are some examples of cases we can handle for you:
  • Preference Actions. You finally get paid by a slow-pay customer, who then files bankruptcy.  You receive a demand for a return of the payment from the debtor or a bankruptcy trustee.
  • Fraudulent Transfer Actions. Your company closes on a complicated business transaction and, subsequently, one of the other parties to the transaction files bankruptcy.  Your company has been served with a lawsuit to unwind the transaction and/or recover money damages.

 

In addition to regularly representing our clients when faced with preference and fraudulent transfer claims, here are some types of court cases we handle for our clients:

Objections to Claims

You filed a proof of claim in a bankruptcy case for the amount due to your company.  A bankruptcy trustee or debtor has filed an objection to your proof of claim.  The first practical consideration is whether the claim has monetary value and is worth investing in legal fees to defend.  If so, we will vigorously defend your claim.

Plan Confirmation

In Chapter 11 reorganization or Chapter 13 wage earner cases, the debtor has filed a plan that seeks to pay only a small amount of your claim and/or pay the dividend over a five-year period.  We will advise you on whether you have any legal or factual grounds to object to the plan and if so, we will fervently pursue the objections to the plan on your behalf.

Cash Collateral and Debtor-in-Possession Financing

Secured lenders, creditors’ committees, and Chapter 11 debtors have to agree on a budget for use of the debtor’s cash to pay operating expenses, as well as the terms for any borrowing from the lender during the bankruptcy proceeding.  If the parties cannot agree, the Court cannot compel the lender to make additional loans to the debtor but it can enter an order authorizing the debtor to spend cash on terms that leaves one or more of the constituents at a considerable disadvantage in the proceeding.  We can, and do, represent all of the parties in cash collateral proceedings.

Automatic Stay Litigation

Creditors can be sued if they take any action against a debtor or property of the debtor in bankruptcy, unless they obtain relief from the automatic stay in the bankruptcy case.  We represent creditors seeking relief from the bankruptcy court to exercise their rights outside of bankruptcy.

Value Proceedings

A lender that has liens on collateral may end up in a dispute with the debtor or another constituent in the case regarding the extent of its secured claim, which is determined principally by the value of the collateral.  These matters are often determined by the use of expert witnesses, such as appraisers or valuation consultants.  We have substantial experience in preparing experts for testimony.

Asset Sales and Going-out-of-Business Sales

There are lucrative acquisition opportunities when a debtor is selling its assets in bankruptcy.  However, the procedures for selling assets in bankruptcy are unique to the bankruptcy process, and we regularly represent buyers and sellers in distress.

Committee, Trustee, and Receivership Representation

In Chapter 11 business cases, a committee of unsecured creditors is often formed to represent the interests of unsecured creditors, and in some cases, a trustee may be appointed to manage the company and formulate a plan.  Receivers are appointed in state court insolvency proceedings to liquidate or otherwise dispose of an entity’s assets.  We represent these constituents in bankruptcy and state court insolvency proceedings.

How We Do It

We approach bankruptcy litigation cases aggressively, efficiently, and we do not believe that one approach works in all cases. Whether you need us to assert a claim against a debtor or defend a lawsuit against you by a debtor or trustee, we will provide you with an initial assessment of the case. This initial assessment includes both the benefits and the risks that are foreseeable at the outset of the case, as well as a projected budget of the legal expenses so you can make prudent and informed decisions. Throughout the various stages of the litigation, we will reassess your case and adjust our litigation strategy as needed to provide you with the most advantageous position. At the same time that we vigorously serve as your advocate, when feasible, we will keep the door open for negotiating a compromise and settlement that you find acceptable.

Who We Do It For

We regularly represent our clients in state and federal bankruptcy courts. For more about the business restructuring and corporate governance aspects of our business bankruptcy group, visit here.

Ready to learn more? Contact Offit Kurman today!

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