Bankruptcy

Fending Off the Appointment of a Receiver

Ansell Grimm July 8, 2013

Joshua S. Bauchner, Esq. recently published an article in the July 1, 2013 edition of the New Jersey Law Journal entitled “Fending off the Appointment of a Receiver.” In today’s stressful economic climate, commercial property owners often are the victims of their tenant’s problems. While a national tenant may file for bankruptcy with the expectation of reorganizing under Chapter 11 of the Bankruptcy Code, the landlord is left having to service the mortgage without cash-flow from that tenant or any ability to commence an eviction or related action as a result of the automatic stay. 11 U.S.C. § 362. Sooner or later (likely sooner) the Landlord’s bank will come calling in the form of a foreclosure action.

While the defaults under the mortgage present their own challenges (the rapid accrual of default interest, late fees, and attorneys’ fees and costs), the likely first step in the foreclosure action will be a Motion to Appoint a Receiver; indeed, this requested relief often is sought contemporaneously with the filing of the foreclosure complaint. The motion will seek the appointment of a receiver simply to collect rents or, more often these days, to take full managerial and operational control over the property divesting the Landlord of all its rights and interests (though not, title, as of yet). This article details some defenses the Borrower (née Landlord) can assert to ward off the appointment. For full article click here

This article was originally published in the July 1, 2013 issue of the New Jersey Law Journal.

Bankruptcy Trustee’s Avoidance Rights Are Nearly Limitless

Ansell Grimm October 23, 2012

Joshua S. Bauchner, Esq. recently published an article in the national online journal, Law360, entitled “Bankruptcy Trustee’s Avoidance Rights Are Nearly Limitless” The article addresses Section 550 of the Bankruptcy Code which applies where the trustee, having already avoided a transfer of some property, seeks to recover that property. Under those circumstances, the recovery must be “for the benefit of the estate.” This requirement does not apply, however, where the trustee seeks only to avoid an obligation that the debtor incurred, which does not require any recovery to the estate. Additionally, Section 550 does not limit the amount of avoidance to a creditor’s claim permitting recovery of a transfer or negation of an obligation in its entirety. These considerations provide a trustee with extraordinary flexibility and range when pursuing claims under sections 544 and 548 of the Code.

Please click here to read Mr. Bauchner’s article in its entirety.

Spotlight on Section 550 of the Bankruptcy Code

Ansell Grimm August 29, 2012

Joshua S. Bauchner, Esq. recently published an article in the national online journal, Law360, entitled “Spotlight on Section 550 of the Bankruptcy Code.” The article addresses the “benefit of the estate” language of section 550 of the Bankruptcy Code which informs and guides most bankruptcy practice. It permits the trustee to recover property from a transfer avoided pursuant to sections 544, 545, 547, 548, 549, 553(b), or 724(a). However, the “benefit of the estate language” often is limited by courts and practitioners to take into consideration only benefit to creditors of the estate; rather than to all of the various constituencies comprising the bankrupt estate, including equity. This is too narrow an application of the statute.

Please click here to read Mr. Bauchner’s article in its entirety.

Bankruptcy

Fending Off the Appointment of a Receiver

Bankruptcy Trustee’s Avoidance Rights Are Nearly Limitless

Spotlight on Section 550 of the Bankruptcy Code

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