In a letter opinion dated June 14, 2010, the Bankruptcy Court confirmed that under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) a debtor is not required to contribute money to a Chapter 13 Plan that is presently being used to repay a loan borrowed against a 401(k) plan. However, a creditor(s) challenging the confirmation of the plan may (1) inquire as to the terms of repayment and (2) the debtor may be required to propose a plan that steps up payment at a later date. 

In In Re Todd R. Roth, 10-13287 (JHW), the largest unsecured creditor of the debtor, a law firm, filed a motion to dismiss the debtor’s Chapter 13 case and objected to the confirmation of the Plan. The Court scheduled an evidentiary hearing to decide the motion to dismiss, but addressed the movant’s objection to the confirmation of the Plan.

As to confirmation of the Plan, the moving creditor argued that 401(k) contributions and repayments of a loan from a 401(k) account constitute disposable income that should be dedicated to pay unsecured creditors under the Plan. In opposition, the debtor submitted that post-BAPCPA, regular 401(k) contributions and repayment of a loan from a 401(k) account do not qualify as disposable income. The Court rejected the creditor’s arguments because, under BAPCPA, money being contributed to a 401(k) plan and money being used to repay a 401 (k) loan are not deemed disposable income.

However, the Court recognized that money utilized towards the repayment of a 401(k) loan should be reduced as the loan is repaid. As such, a creditor may inquire about the repayment terms of the loan. Consequently, the debtor may be required to propose a plan that steps up payment at a later date. For example, if the bankruptcy plan is for five years, but the loan will be repaid in two years, payments to creditors must increase at the beginning of the third year. In support, Court relied upon an unpublished bankruptcy court opinion that held that a step up plan may be required to include amounts presently being used to service a 401 (k) loan.

The Bankruptcy Court’s letter opinion highlights the need for a creditor objecting to a Chapter 13 Plan to request information and documentation pertaining to the length and repayment terms of a voluntary pension loan. The debtor may be required to pay additional money under the Plan, but without diligent investigation by creditor’s counsel, the terms of repayment of the loan may not be disclosed.

Jeffrey S. Posta, Shareholder in Stark & Stark's Bankruptcy & Creditor's Rights Group, authored the article, So You Thought You Had A Lease? for the April 2010 Lease Enforcement Attorney Network Newsletter.

In the article, Mr. Posta states that there is uncertainty in the law about whether a transaction is a sale or a true lease, and stresses that this distinction is especially important when and if the owner/lessee of an asset files for bankruptcy. Mr. Posta advises lessors desiring true lease treatment to carefully document their transactions in order to protect their interests.

You can read the full article online here.

The State of New Jersey recently (on January 17, 2010) passed the New Jersey Foreclosure Fairness Act (the “Act”) which will effect how foreclosures cases are handled in the State of New Jersey.  The Act becomes effective February 16, 2010, however, certain notice requirements become effective January 26, 2010 as noted below.

RESIDENTIAL UNITS WITH TENANTS
A person who takes title to a residential property containing tenants by way of a sheriff’s sale or deed in lieu of foreclosure, must provide notice no later than ten (10) business days after the sale, to any tenants of the property informing them that ownership has changed hands and that the tenants are not required to vacate the premises. 

This notice must be served by the new owner on the tenants by regular and certified mail, must be in both English and Spanish, must contain contact information to whom future rent is due and include a basic explanation of the tenant’s rights under the “Anti-Eviction Act”.  There is a particular form of notice required that the Department of Community Affairs will make  available on its website in a printable English and Spanish format that may be used.  (see www.state.nj.us/dca/ search Foreclosure Fairness Act)

The notice must also be posted prominently on the front door of each tenant’s unit. If the property contains ten (10) or more units, the new owner must post the notice in a common area of each residential building or structure on the property.

A similar notice with some additional information is also required if a summons and complaint or initial communication by a foreclosing creditor who seeks the tenant to vacate prior to the transfer of the property.

There must be no communication meant to persuade the tenant to vacate the premises except by way of a bona fide monetary offer, which must be in a made in a specific manner, and from which the tenant would have five (5) business days from receipt of the offer to accept and vacate or reject the offer.  Acceptance must be in writing.  No person or person’s agent may (1) make any misrepresentations of the rights of the tenant under the “Anti-Eviction Act” in order to induce the tenant to vacate the property; (2) state actions the owner may take against the tenant or imply the tenant is obligated to accept the offer; or, (3) any other form of harassment, such as failure to maintain the premises or rent increase in violation of municipal rent control or rent increase in violation of the Anti-Eviction Act or any other State, Federal or Municipal ordinance.

Any violation of the notice requirements or treatment of the tenants may result in triple damages or damages in the amount of $2,000.00 per violation plus attorney’s fees and costs.  Further civil or criminal actions may also be commenced against the creditor who violates this Act.

NOTICE REQUIREMENTS EFFECTIVE JANUARY 27, 2010
This Act requires that creditors serving foreclosures summons and complaints on residential property must within ten (10) days of service of the summons and complaint, notify the municipal clerk where the property is located. This will also affect any foreclosures filed  30 days before  February 16, 2010 which must also be reported to the respective municipal clerks.  The creditor must also notify the municipality if the owner of a residential property vacates or abandons a property on which a foreclosure action has been initiated. There is also a requirement to specify in the Foreclosure Complaint and notify the municipal Clerk with specified Act defined details if the property being foreclosed is an “Affordable Housing” unit. This notice must also be supplied to the municipal clerk within 10 days of the summons and complaint’s service.

After such notice if such property is found to be a nuisance or in violation of any applicable State or local code, the municipality must notify the creditor, whose responsibility it will be to correct the nuisance or violation. If the municipality expends public funds to abate a nuisance or correct a violation the municipality shall have the same recourse against the creditor as it would have against the “title owner”.

FORECLOSURE REPORTING REQUIREMENTS
Any creditor that initiates a mortgage foreclosure action in the Superior Court of New Jersey must report to the Department of Banking and Insurance, on a quarterly basis and in a specific format (organized by municipality), information about the number of mortgage foreclosures initiated by the creditor.

FORBEARANCE PERIOD FOR HIGH RISK MORTGAGE FORCLOSURES
If a foreclosure action is filed subject to the Fair Foreclosure Act, on a “high risk” mortgage loan, must grant the borrower a six (6) month forbearance upon request of the borrower to permit the borrower  to pursue a work out, loan modification or refinance. 

A “high risk loan” includes those loans that are interest only with a future reset rate; has a reset mortgage interest rate that increases the interest rate; contains payment option plan or “pick a payment” plan; contains a negative amortization schedule; is a subprime loan; contains an enforceable prepayment penalty; or, is a high cost home loan as defined by the New Jersey Home Ownership Security Act A subprime loan would include a consumer transaction secured by the consumer’s principal dwelling if it carries a rate of interest that exceeds the average prime offer rate as of the date the interest is set by 1.5 or more percentage points for loans secured by a first lien or 3.5 percentage points for loans secured by a subordinate lien. .

During this six (6) month period, the interest rate on the subject mortgage can not increase and the creditor may take no further action to pursue foreclosure. Notice of the forbearance right must be served with the summons and complaint.  If the borrow requests such a forbearance, it shall begin upon receipt of the borrower’s request. 

The forbearance notice must be include whether the loan is eligible to receive forbearance, that the borrower has the right to request forbearance no later than thirty (30) days after receipt of the summons and complaint; contact information as to where to send the request and that upon receipt of the request, the creditor shall inform the court to place a six (6) month stay on the foreclosure action. Once the forbearance period begins the borrower and creditor must participate in the foreclosure mediation process.

Should the borrower vacate the property anytime during the forbearance period, the forbearance period shall end. The forbearance right will only be effective until February 16, 2012 at which time this right shall expire.

Stark & Stark Bankruptcy & Creditor’s Rights Group Chair, Timothy P. Duggan, authored the January 18, 2010 New Jersey Law Journal article, Bankruptcy Do’s & Don’ts for Personal Injury Attorneys: Ease your pain with a useful road map for the system.

The article discusses the recent increase in consumer bankruptcy filings and how a bankruptcy filing can impact a personal injury lawsuit.  Mr. Duggan offers several “Do’s & Don’ts” in order to assist personal injury lawyers through the United States Bankruptcy Code after their clients have been forced to file for bankruptcy.

You can read the full article online here. (PDF)

Timothy P. Duggan, Chair of Stark & Stark’s Bankruptcy & Creditor’s Rights Group, was quoted in the September 1, 2009 FinancialPlanning.com article, Staying Alive. The article discusses the challenges financial advisors have faced for years when economic troubles being. While filing for bankruptcy looks bad for anyone, when a financial advisor files for bankruptcy, the repercussions could cost them their future, and their future business. However, in today’s economic climate, it is important for financial planners to understand how filing for bankruptcy could affect their job, from a legal and financial standpoint.

Mr. Duggan states, “Advisors should find counsel as soon as they begin to consider bankruptcy as an option. All too often, in an effort to keep their business afloat, small business owners deplete resources that could otherwise be protected in a bankruptcy case.”

You can read the full article online here.

Collect Post-Petition Assessments from Chapter 13 Trustee in a Converted Chapter 7 Case

Bankruptcy filings around the country are up, due to among other things, the decline in the real estate market.  Previously, debtors used the equity in their home to fund a Chapter 13 bankruptcy plan and pay back condominium, homeowners, and cooperative associations (“Associations”).  Now, many debtors no longer have any equity in their homes. As such, this is leading some Chapter 13 cases to be converted to Chapter 7 liquidation cases. 
 

For Associations, such a scenario often means that the debtor stops paying their post-petition assessments.  But what happens to all the money that the debtor paid the Chapter 13 Trustee during the  bankruptcy? Does this money get distributed to creditors, the debtor or does the Chapter 13 Trustee keep it?  And importantly, can the Associations get any of those funds back?

 

Opportunity to Recoup Post-Petition Assessments
During the life of a Chapter 13 case, the Chapter 13 Trustee has a duty to hold onto all plan payments made by the debtor.  Upon conversion to a Chapter 7 case, the Chapter 13 Trustee is required to account for these funds and notice creditors that these funds will be returned to the debtor. When this occurs, Associations have one last chance to get some or all of this money back, rather than letting the debtor get a windfall.
 

Questions for Associations to Ask Bankruptcy Counsel
It is imperative that the Associations take quick action and file opposition to the Chapter 13 trustee’s notice so it can possibly recoup these funds. Sometimes there may be a few thousand dollars held by the Chapter 13 Trustee. The Associations should talk with their bankruptcy attorney immediately.  Following are some questions to ask:

1. How much is owed post-petition?  It is advisable for the Association to provide its attorney an account history for the post-petition fees due and owing.  For instance, if it will cost $500 to file an objection and make an appearance, but there is only $100 held by the Chapter 13 Trustee for a $200 post-petition claim, it may not be worth pursuing.                      
2. Is there a consent order providing for an administrative claim?  There may be a consent order with the debtor providing for an administrative claim.  Bankruptcy Code §1326(a), specifically provides that the Chapter 13 Trustee is to pay all allowed administrative claims by such a consent order. 
3.  Will an objection automatically mean allowance of the administrative claim?  The short answer is no.  The Associations still needs to prove the validity of the post-petition claim.  The debtor may assert a defense to the claim.  As such, sometimes the Associations may wish to negotiate with the debtor to avoid unnecessary litigation expenses.

These and many other issues should be addressed by your bankruptcy attorney as soon as possible.  Although the bankruptcy process is complex, thoughtful and sound legal advice throughout the bankruptcy case can help address many thorny issues that Associations regularly face as a creditor in a bankruptcy proceeding and, hopefully, not leave money on the table.

Timothy P. Duggan, Shareholder and Chair of Stark & Stark's Bankruptcy & Creditor's Rights group, authored the article, Credit Card Reform - What Does It Mean?, for the July 2009 edition of Mercer Business Magazine.

The article discusses the Credit Card Accountability, Responsibility and Disclosure Act which was signed by President Barack Obama in May of 2009. The Act mandates specific reforms to the credit card industry in an attempt to curb the abuse by certain credit card companies while at the same time allowing financial institutions the ability to price credit against risk. You can read the full article online here. (PDF)

On May 18, 2009, the United States Bankruptcy Court for the District of New Jersey issued a General Order with respect to the New Jersey Judiciary Foreclosure Mediation Program.  This Order clarifies that participation in the Foreclosure Mediation Program, where the homeowners have filed for Bankruptcy, does not violate the automatic stay.  Furthermore, a mortgagee does not have to obtain relief from the automatic stay to participate in the Foreclosure Mediation Program.

In addition, this Order makes it clear that in Chapter 13 cases, the debtor is obligated to continue to make regular monthly mortgage payments as well as required payments to the Chapter 13 trustee during the time the mediation process is pending.

This Order further makes clear that if the automatic stay was in place during participation in the program, it remains in place.  If the mortgagee wishes to continue with any foreclosure proceeding, relief from stay must be granted by the Bankruptcy Court.

Finally, this Order directs that any resolution or settlement, including any modification to the mortgage, must be approved by the Bankruptcy Court.  If any settlement impacts a provision of a Chapter 13 Plan, a modified plan must be filed.

Timothy P. Duggan, Shareholder in Stark & Stark's Bankruptcy & Creditor's Rights group, was  quoted in the March 29, 2009 Asbury Park Press article, Already owed thousands, Kara Homes contractors now told to pay back what they already got.

Mr. Duggan discusses the effects the Kara Homes bankruptcy is still having on contractors throughout New Jersey over two years after the company initially filed for bankruptcy. Contractors who were paid by Kara Homes within 90-days of the bankruptcy filing are now being told they have to pay back any money they received from the builder. You can read the full article here. (PDF)

With the downturn in the economy, many New Jersey residents are strapped for cash. A possible reprieve for some people is to file for bankruptcy protection. In the past, many unit owners with equity in their units would simply file for Chapter 13 bankruptcy protection.  Chapter 13 protection would allow the debtor to pay their secured debt in-full and their unsecured debt pro rata through a three to five year bankruptcy plan, while keeping current their monthly obligations.  For condominium, homeowners, and co-operative associations (“Associations”), a successful Chapter 13 proceeding would lead to payment in-full, overtime of their pre-petition secured condominium lien, a pro rata payment of any unsecured claim and being kept current with the Association’s monthly assessments.  

Many Debtors Now Filing for Chapter 7 Bankruptcy Protection
However, now many units are “underwater” - meaning that the value of the home is less than the mortgages and liens on the property.  Instead of filing for Chapter 13 protection and attempting to re-pay debts overtime, many debtors are beginning to file for a Chapter 7 bankruptcy liquidation.  In some cases, Chapter 7 debtors have simply ceased paying any post-petition monthly assessments.  When this happens, Associations are left asking:

• Who’s liable for the post-petition assessments?
• Will we be paid all secured pre-petition assessments?
• How does the debtor’s discharge effect the Association?
• Can we proceed with foreclosure efforts?

   
Following is a brief overview on the Associations’ rights and remedies when a unit owner files for Chapter 7 bankruptcy protection.

The Chapter 7 Discharge
When a debtor files for Chapter 7 bankruptcy protection, they are seeking a discharge of all pre-petition obligations. Generally, the Chapter 7 discharge releases a debtor from personal liability for pre-petition debts and prevents the creditors from pursuit of those debts against the individual debtor. For Associations, this means that it cannot pursue the individual debtor for the any of its pre-petition claims.  Associations can, however, pursue claims secured by collateral, such as Association lien claims. Valid Association liens pass through bankruptcy unaffected, while unsecured pre-petition Association claims are discharged and only paid pro rata if the Trustee finds assets to sell.

Unit Is Property of the Estate at Beginning of Chapter 7 Proceeding
Like a Chapter 13 bankruptcy proceeding, all of the debtor’s property, including interest in the unit, is placed into the bankruptcy estate (the “Estate”). Bankruptcy Code Section 541 defines property (“Property”) very broadly as all legal and equitable interests of the debtor. Included as Property of the Estate is the unit. Acts against the Property of the Estate are prohibited by Section 362 of the Bankruptcy Code (the “Automatic Stay”) and sanctionable.  For Associations, just like in a Chapter 13 bankruptcy proceeding, this means all actions, including collection efforts, such as filing lien claims, foreclosure, seeking judgment and/or wage executions, must cease until otherwise allowed by the court.

Chapter 7 Trustee Determines Whether to Abandon or Sell the Unit 
Overseeing this Estate, in a Chapter 7 Bankruptcy, is a Chapter 7 trustee (the “Trustee”).  It is the Trustee’s job to liquidate the non-exempt Property of the Estate for the benefit of creditors, including the Association.  However, in this economy, many units have little or no equity because either the value of the unit fell or the debtors leveraged all the equity.

To determine if equity exists, the Trustee will perform an equity analysis of the unit. Generally, the Trustee takes the value of the unit and subtracts all mortgages, liens, exemptions and costs of sale.  As a rule of thumb, if there is less than $10,000 in equity remaining after the equity analysis, then the Trustee will abandon the unit.  If there is equity in the unit, the Trustee can sell it to pay secured creditors in-full and make a pro rata distribution to unsecured creditors.

More often, the Trustee will abandon the unit because little or no equity exists. When abandonment occurs, the unit is removed from the Estate and placed back in control of the debtor.  Any mortgages or liens, such as an Association lien, that were valid prior to the bankruptcy filing remain intact.  By abandoning the unit, the protections of the Bankruptcy Code cease and the unit may be pursued by the Association.

Mere Ownership in Unit Obligates Debtor to Pay Post-Petition Assessments
A statutory exception to discharge is the debtor’s obligations to pay post-petition assessments.  So long as the debtor has a mere ownership interest in the unit, the debtor is liable for post-petition assessments. The debtor’s liability was clarified by statute in October 2005 when Congress amended Bankruptcy Code Section 523(a)(16):  

(a)     A discharge under section 727,...does not discharge an individual debt for any debt -

(16)     for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor's interest in a unit that has condominium ownership, in a share of a cooperative corporation, or in a homeowners association, for as long as the debtor or the trustee has a legal, equitable or possessory ownership interest in such unit, such corporation or lot.
 

(See 11 USC 523(a)(16), Emph added).

Prior to the 2005 amendments, post-petition assessments due to an association were non-dischargeable, so long as the debtor physically occupied the unit or rented the unit. See prior 11 USC § 523(a)(16), pursuant to the Bankruptcy Reform Act of 1994.  See also, Matter of Mattera, 203 B.R. 565, 572 (Bankr.D.N.J. 1997) (chapter 13 debtor’s non-occupancy of an association unit permitted her to discharge post-petition obligations due to the association). The 2005 amendments eliminated these two provisions entirely and added language that mere ownership creates the non-dischargeability of the post-petition assessments.
 

Association’s Rights to Enforce its Obligations
Until the unit is either sold or abandoned, it remains under the protections of the Automatic Stay.  Bankruptcy Courts in New Jersey will permit an Association relief from the Automatic Stay to pursue its interest in the unit, only (i.e lien claim and or foreclosure), if the debtor has not paid approximately three months of post-petition assessments. 

From a strategic and cost standpoint, the Association must make the decision to either expend money and file a motion for relief from the Automatic Stay or wait for the Trustee to abandon the unit.  Although the motion will provide certainty and allow the Association to pursue the unit, the costs may be prohibitive and may not be collectible within the foreclosure action.  Further, Trustees rarely abandon the unit within 90 days of the filing.  Often, the Trustee must confirm the reasonableness of the value of the unit through an appraisal.  This could take six months or more.  With all these factors, it is vital to have effective communications between the Association’s bankruptcy attorney and the Trustee.  These communications can provide the Association information that needs to make the best decision to enforce its rights. 
 

With the increase in Chapter 7 filings, Associations must not only be vigilant to protect their interests, but also strategic in how to protect themselves. Although the bankruptcy process is complex, thoughtful and sound legal advice at the beginning of a bankruptcy case can help address many thorny issues that Associations regularly face as a creditor in a bankruptcy proceeding.  

For more information on an Association’s rights in bankruptcy, please contact Thomas Onder at Stark & Stark in the Creditor’ Rights Group at (609) 219-7458 or tonder@Stark-Stark.com.

Timothy P. Duggan, Shareholder in Stark & Stark's Bankruptcy & Creditor's Rights group authored the article Stub Rent Revisited: No entitlement to immediate payment for the January 12, 2009 edition of the New Jersey Law Journal.

Mr. Duggan discusses the fact that the recent increase in retail bankruptcies has caused the bankruptcy courts and litigants to revisit a variety of legal issues, including the debtor’s obligation to pay post-bankruptcy rent while it decides which leases to assume or reject. You can read the full article online here.

This installment of the New Jersey Legal Update is an interview with Bari Gambacorta, Shareholder in Stark & Stark's Bankruptcy & Creditor's Rights group, Allyson Cofran, member of Stark & Stark's Bankruptcy & Creditor's Rights group, and Kevin Wolfe, of the State of New Jersey's Civil Practice Division. The podcast is a discussion of the New Jersey Foreclosure Mediation Program which went into effect Monday January 5, 2009 in order to assist homeowner's throughout New Jersey who are facing foreclosure delinquencies.

The State of New Jersey has released the list of CDR (Complimentary Dispute Resolution) point persons, who will be creating mediation calendars and coordinating the foreclosure mediation program in county courthouses. You can access the list here. (PDF)

You can download the full interview here. (15.5 MB)

Timothy P. Duggan, Shareholder of Stark & Stark's Bankruptcy & Creditor's Rights group, was interviewed for an NJN News story discussing Governor Corzine's economic stimulus bill and the recent rise of unemployment and personal bankruptcies in New Jersey. As the number of Chapter 7 bankruptcies more than doubled from 7,200 in 2006 to 16,955 in 2008, Mr. Duggan states that people are just not able to make mortgage payments in addition to their every day living expenses, and are therefore forced into bankruptcy.

You can watch the full story here.

Deficiency actions to recover balances owed after a consumer foreclosure action are not favored in New Jersey Courts.  Although, such actions are permitted under New Jersey law, it is in very limited circumstances and may be difficult to obtain.  Under New Jersey law, a judgment for deficiency may not be brought in the same action to foreclosure the residential mortgage (a separate action must be brought); this preclusion also includes claims on any personal guarantees. Foreclosure deficiency actions can be brought only once the mortgage is foreclosed; must be brought within three (3) months from the date of the sale and can not be brought against any party who was not a party to the foreclosure action.  The deficiency balance sought must be the difference between the foreclosure judgment amount and the fair market value of the property at the time of the sale.

The public policy behind the legislation was to protect the homeowners from losing their homes and then to have a judgment against them for a deficiency which could be as much as the full amount of the mortgage plus additional costs and attorney’s fees.

The protection afforded by New Jersey’s deficiency statutes does not extend to business or commercial loans, one to four family residential dwellings owner occupied at the time the deficiency action is commenced where the mortgage is not the primary security for the debt or where there is a second mortgage lender and the mortgage is subject to a prior lien(s) not held by the same lender.  It is a common misconception that these statutes protect all residential homeowners.  For example the protection would not apply to a second mortgage held by a different lender than the one who holds the first mortgage, provided the first mortgage has already completed its sale; a single family dwelling where the owner or family does not occupy the property or a single family dwelling which secures a commercial loan.

Although, the amount of the foreclosure judgment is binding on all parties to the foreclosure action, the defendant in the deficiency action may still dispute the amount of the debt in the deficiency action. The main thrust of the statute’s protection is found in the ability of the mortgagors to dispute the amount of the fair market value of the property at the time of the foreclosure sale. 

A deficiency action can not be brought if a deed in lieu of foreclosure is accepted.  It must be remembered that an action to recover a deficiency balance will open the foreclosure and sale of the subject property and extend the homeowners right or his assignee to redeem the property for six months, by paying the full amount determined in the foreclosure action.

It is hard to know when the proverbial “next shoe” will drop in the current economic crisis but recently credit lenders in my practice have experienced attempted policy rescissions for their mortgage insured accounts where suddenly and without any notice the private mortgage insurer  (the “Company”) has attempted to rescind its insurance policy on specific accounts. This is especially true for policies issued on mortgage accounts closed during 2005-2006, the peak years of residential real estate values. Their letter often contains language to the effect that the application’s underlying appraisal was “false, incorrect or incomplete” and was “material to the decision to insure” or something similar thereto. The reality is that private mortgage insurers now realize that they are likely to be hit with a rash of claims on loans they have underwritten since the real estate bubble has burst and home values in many geographic regions have declined precipitously. Rather than brave the tempest and honor their policies they have elected to get in front of the wave through this novel rescission approach.

Attempted private mortgage recessions such as these, need to be handled promptly by qualified counsel. The credit lender’s appraiser should be put on notice and invited to put his carrier on notice of the pending claim. The appraiser should also be requested to review the appraisal used for the original underwriting to make certain that the facts contained therein are accurate and to verify the comps used. There should simultaneously be a demand for the insurance company’s new appraisal. Payments should be made to the Company in the regular fashion even if they are returned initially. Counsel should review the Company’s Master Policy and any exclusions and give the Company any required notice pursuant thereto in anticipation of the pending litigation.

While this recommended course of action often puts credit lenders and their appraisers (often with mutual business interests and longstanding relationships) at odds, New Jersey’s Entire Controversy Doctrine makes a second lawsuit against the appraiser itself impossible. Counsel, experienced and sensitive to these relationships, can normally soften the prospects of the pending suit by a telephone call explaining the circumstances and promising full cooperation in the litigation prior to issuing his written demand.

If litigation is commenced it is imperative to ascertain if the financial institution has other insured loans with the Company and it is normally advisable to seek declaratory relief in the Complaint seeking to maintain coverage on all those other  loans where policies exist. Additionally, it may be time to take stock and ascertain the possible exposure of those other loans since the Company’s intentions to “rescind” its policies may signify well-founded concerns for its adequate capitalization. Prudence would suggest that a lender at least recognize the additional risks such mortgage insured loans may poise to a lender’s portfolio. Certain or all of these loans may well be singled out for “special handling”.

If the lender has any concern about the appraisal questioned or any other appraisals insured by the Company then it should hire an independent review appraiser to offer an independent view on the appraisal or appraisals. If there are any weaknesses in the case it is better to know up front. This may well affect the negotiation strategy with both the Company and the appraiser’s insurance company.

In these “recession” situations, it’s a simple “shoe-in” to seek guidance and move swiftly in order to preserve the credit lender’s rights. Normally the bank’s counsel will need a copy of the notifying letter, a copy of the appraisal used by the Company to determine that the underlying appraisal was “false”, a copy of the original appraisal and a copy of the Company’s Master Policy currently in effect with the credit lender.

Timothy P. Duggan, Shareholder and member of Stark & Stark's Bankruptcy & Creditor's Rights group, will present a seminar entitled Insolvency in Franchise Businesses: Minimizing Risk and Maximizing Recovery Under the Bankruptcy Code in conjunction with the Legal Publishing Group of Strafford Publications. The 90-minute tele-seminar will be held Thursday December 4, 2008 from 1:00 PM - 2:30 PM.

The seminar will feature a discussion of the weakening economy and it's effects on many franchises, ranging from restaurants to convenience stores to staffing services who are now seeking bankruptcy protection. The Bankruptcy Code addresses how franchise agreements are treated in bankruptcy; however, the Code does not resolve all of the unique issues that arise for franchisors and franchisees. It is critical that franchise counsel develop strategies to anticipate and protect against the fallout from bankruptcy.

This teleconference will highlight key legal issues that arise during a franchisor or franchisee bankruptcy. The program will also offer best practices for creating a franchise agreement in order to protect their respective interests and maximize their recovery under the Bankruptcy Code.

You can access additional information and a registration form here.
 

Commercial landlords need to be vigilant in protecting their interests in these uncertain economic times.  Getting and keeping paying commercial tenants is the name of the game.  However, its not always that simple.  Sometimes, landlords have to make the difficult decision of whether to evict and try to collect against a non-paying tenant. The commercial landlord could be left with the tough choice of evicting a tenant and have a "dark store" until a new tenant can be found or working with their tenant by offering more favorable terms or concessions. 

Whatever business decision a commercial landlord makes, its advisable to know what your rights are, and what steps you have to make, before you proceed with a litigation strategy.  A clear strategy for dealing with non-paying tenants can help determine the success of your commercial property with existing, new and potential tenants. 

Following is a quick primer of questions to ask your attorney about both the eviction and collection process in New Jersey before proceeding with litigation.  Asking these questions ahead of time can help you make a more informed decision on how to proceed with a non-paying tenant.

EVICTION
In New Jersey, commercial landlords have the right to have a tenant evicted through a summary dispossess action (aka "eviction") for non-payment of rent.  Before attempting to evict tenants, the landlord should confirm with their attorney a number of questions, including:

1. Has a New Jersey attorney reviewed the lease?  It is important to have an attorney licensed to practice law in the State of New Jersey review the lease to make sure that it complies with State and Federal law.
2. Do any Federal or State statutes preempt?  Your attorney should be able to advise if any Federal or State statutes specifically define rent, which would only allow a certain portion to be collected.  If so, then you may need to re-inform the tenant of the amount due and owing before commencing suit.
3. Does the lease provide for collection of attorney fees as additional rent? To collect attorney fees, generally there must be either a contractual arrangement or a statute that provides for such collection.  For eviction actions, to include attorneys fees as rent in the eviction complaint, it must be specifically defined as additional rent.  Just having a provision that allows the collection of attorneys fees, but not defined as additional rent, will not permit the landlord to call a default and institute an eviction.
4. Who will testify to the amount owed? If the matter is contested, you will need to submit proofs and testimony to show the amounts due and owing.  It's a good idea to have your attorney review the lease and accounting with whomever is to testify.  Further, its important that the person testifying have actual knowledge of the books and records, as well as authority to testify.
5. Have all notice provisions been complied with? Before your file the eviction action, make sure you've complied with all notice provisions.  Your attorney should advise of the specific notice provisions that need to be followed under the lease, as well as if the Fair Debt Collection Practices Act and New Jersey Anti- Eviction Act, may be applicable.

COLLECTION
Commencing the eviction action is only half the battle for commercial landlords.  Once a landlord has obtained an order for summary dispossession, the next step is to actually evict the tenant and then try and collect money.  Following are questions to ask your attorney about what to do after the summary dispossession order (eviction order) has been entered.

1. Is settlement possible?  At this point it may be worth attempting to speaking with the tenant one more time before the actual eviction takes place. Sometimes just getting the order for possession will bring the tenant to the bargaining table.
2. Has the warrant been posted?  It is essential to go through with the entire eviction. This means not only obtaining the order for possession, but also enforcing it through a warrant of removal and actual eviction.  Its advisable to confirm your attorney has followed-up with the Sheriff to make appropriate arrangements.
3. What to do with left over items?  When the eviction takes place, you may want to check with your attorney on what to do with items left in the premises. For instance, if a copy machine has been left in the premises, do you know who owns it?  If not, how do you find out?  Further what rights do you have in that equipment?  These issues should be thoroughly discussed with your attorney.
4. How do you get paid? After the landlord has gotten possession, the next steps is getting paid.  In New Jersey, landlords usually have to commence a separate action to collect all sums due and owing.  However, before you authorize a collection action you may want to ask your attorneys about what steps you've done or have to do to mitigate damages.  For instance, if the lease term was 10 years and you evicted the tenant after three years, how much can you collect?  Are your attorneys fees provided to be collected in the lease?  What about improvements?
5. Are there guarantors on the lease?  Besides suing the tenant, you and your attorney should thoroughly review the lease to see if there are other parties that you can try and collect for arrears and damages owed.

Prior to making that decision to evict a non-paying tenant, it is advisable that a commercial landlord reviews these and many more questions with a licensed New Jersey attorney.  Answering these questions beforehand can help you with the proper strategy to keep your commercial property(s) profitable in these cautious economic times.

The rise in bankruptcy filings has heightened the angst of contractors and suppliers working with residential builders who are worried that more companies will follow the path of Kara Homes and Elliot Builders and seek bankruptcy protection. The Fed’s proposed $700 billion bailout may jump start the residential real estate market and help some smaller builders avoid bankruptcy, however, for those contractors and suppliers tied-up in the Kara Homes case, lookout for the recently filed preference lawsuits.

On October 1 and 2, 2008, the Liquidating Trust formed in the Kara Homes bankruptcy case filed numerous complaints seeking to compel contractors and suppliers to return money they received during the 90 days before the filing of the bankruptcy case. In the end, many contractors and suppliers will be searching far and wide to understand why they have to return money to a company who stiffed them by filing for bankruptcy. This seemingly unfair consequence is the result of Congress’ inclusion of the preference laws in the United States Bankruptcy Code.

What Was Congress Thinking? One of the fundamental objectives of the bankruptcy law is to make certain that similarly situated creditors are treated equally and share in the distribution of the debtor’s assets on a pro-rata basis. To meet those objectives (and others) and avoid the pillaging of weak debtors during the slide into bankruptcy, Congress targeted certain types of pre-bankruptcy transactions, which result from the debtor providing preferential treatment to one or more creditors in the period leading up to the filing for bankruptcy. These transfers are known as “preferential transfers” and result in the debtor or trustee filing “preference actions” to attack the transactions and recover payments.

Policies and theories are often times hard to stomach, especially when you are a creditor subject to a preference action. Nevertheless, it is the law and many creditors involved in the Kara Homes bankruptcy case are about to feel the pain of being sued by a trustee.

What is a Preference Payment? The 90 days prior to the filing for any bankruptcy case is referred to as the “preference period.” The United States Bankruptcy Code allows a trustee to recover payments made to unsecured creditors during the preference period if certain conditions are met. To recover a preferential transfer, a trustee must prove the following five (5) factors:

1. A transfer of an interest in the debtor’s property;
2. Made within 90 days of the date of the bankruptcy filing;
3. Made on account of an antecedent debt (past due);
4. Made while the debtor was insolvent; and
5. Enables the creditor to receive more than it would receive if the debtor was liquidated in a Chapter 7 case (i.e. the assets sold).

The trustee must prove all five (5) elements. However, the trustee gets the advantage of a statutory presumption, which provides that for preference purposes, that the debtor is presumed to be insolvent during the 90 days before the bankruptcy is filed. Also, note that “transfer” does not just cover payments, but any transfer, including the granting of certain liens.

How Do I Defend a Preference Lawsuit? If you are a supplier to a company who has filed for bankruptcy protection and you receive a preference complaint, there are several practical tips for defending a preference action.

1. Defend The Case, Do Not Ignore It. It is very important to seek an attorney with bankruptcy experience immediately in order to avoid allowing the trustee to win by default. Under the rules governing bankruptcy cases, you have 30 days from the issuance of the summons to file an answer. Do not delay - get an answer filed or contact the plaintiff’s lawyer to obtain an extension of the deadline to file an answer.
2. Do Not Confuse a Preference Claim With a Fraud or Breach of Contract Case. Do not confuse a preference claim with any other type of litigation you have experienced - it is a world unto itself. It does not matter that you fully performed under the contract or delivered conforming goods or services. It also does not matter that your intentions were noble and your good graces allowed the debtor to string out your payments. Preference claims are very rigid and once the five (5) elements described above are satisfied, a preference claim has been established, subject to certain defenses. You need to focus your attack on the five (5) elements the trustee needs to prove and the statutory defenses set forth in the Bankruptcy Code.
3. The Facts. The facts, and nothing but the facts, are what may save the day. It is very important to explain to your attorney all of the facts surrounding the transfers. In terms of general facts, you need to explain to your attorney the nature of your business, how transactions are generally performed within your business, and how you generally bill and collect invoices. In terms of specific facts, you need to prepare a complete payment history of your relationship with the debtor, assemble all invoices and shipping documents, verify payments, assemble all letters, emails and faxes relating to any billing and collection activities, and any other appropriate documents.
4. Chart the Invoice and Payment Dates. To evaluate defenses to a preference action and to be prepared to meet with your attorney, you need to organize the most important information. The best way to do this is to prepare a payment history chart. The chart should have at least five (5) columns, showing the invoice number, invoice date, date check was received, date check cleared, amount of check and time between invoice date and payment date (measured in days). The last column which shows how many days after the invoice date the payment was made is crucial information in evaluating the ordinary course of business defense and new value defense. A properly prepared chart with supporting documentation will save you time and money when meeting with your attorney.
5. Think About Potential Expert Witnesses Within Your Industry. You may need an expert witness to give you a report that the payments made during the 90-day preference period fall within ordinary business terms. Your attorney will explain that one of the main defenses to a preference action is that the payments were made in the ordinary course of business. You may want to look to competitors or local trade groups to find an expert in your particular industry. Not all cases require experts, but some do. Get a jump on the selection of an expert by reviewing your files and identifying capable experts in your industry.
6. Retain Experienced Bankruptcy Counsel. Preference cases are very unique and outside the experience of many lawyers. Bankruptcy lawyers are a somewhat tight group and is helpful to have an attorney who has litigated cases with the trustee in other matters. Also, you want to make certain that the trustee is forced to prove his entire case and all affirmative defenses are analyzed.
7. Reality Check - Some Cases Are Hard to Defend. Sometimes the trustee has a strong case and there are no affirmative defenses available. In this situation, your attorney needs to attempt to settle the case early at a favorable number. If you let emotion get in the way of sound business judgment, the end result may be unpleasant. An experienced lawyer can give you an honest opinion of your case and if it is very weak, find a way to gain some leverage to settle the case before you incur substantial legal and expert fees.

Preference claims often times result in unfair results. However, the fact remains that most large Chapter 11 cases end with a slew of preference actions. If you receive a preference complaint, immediately start working on your defense and get to an experience lawyer who can help you go on the offensive.

Thomas S. Onder, member of Stark & Stark's Bankruptcy & Creditor's Rights group, was featured in the article How to Handle a Chapter 11 Bankruptcy Filing for the August 25, 2008 edition of NJ Biz.

In the wake of the recent high profile bankruptcies of companies such as Linens 'n Things and Boscov's more and more companies are feeling the need to file for bankruptcy protection. Mr. Onder discusses the steps companies can take in order to retain key suppliers and employees in uncertain economic conditions. You can read the full article here. (PDF)

Adam J. Siegelheim, member of Stark & Stark's Franchise group, was quoted in the August 18, 2008 NJ Biz article Life After the Sudden Demise of a Known Brand. Mr. Siegelheim discusses the possibility of a company loosing it's brand identity after a parent company files for bankruptcy. This comes in the wake of S&A Restaurant Corp.’s, the parent company to Bennigan's, bankruptcy filing late last month.

You can read the full article here. (PDF)