Law Offices of Gary Martin Hays & Associates
P.C.
75 Ponce De Leon Ave NE Ste 101
Atlanta,
GA 30308(470) 294-1674
www.garymartinhays.com
The Legal Intelligencer | Commentary
By Francis J. Lawall and Kate Mahoney | November 2, 2017
In the ongoing and seemingly never ending low interest environment, some might argue that the Bankruptcy Code as it applies to commercial debtors has become more of a sale platform than a reorganization tool.
By Andrew C. Kassner and Joseph N. Argentina Jr. | October 19, 2017
One of the fundamental benefits of the filing of a bankruptcy case is the imposition of the “automatic stay” that bars creditor actions to continue collection of pre-petition debts without first obtaining relief from the stay from the bankruptcy court.
By Rudolph J. Di Massa, Jr. and Jarret P. Hitchings | October 5, 2017
Pursuant to Section 727(a) of the Bankruptcy Code, an individual debtor can obtain a discharge of his pre-petition debts, see 11 U.S.C. Section 727(a). In general, the effect of a discharge is to relieve the debtor from all debts that arose before the date the debtor filed for bankruptcy protection.
By Francis J. Lawall and John Henry Schanne II | September 14, 2017
A fundamental benefit of Chapter 11 is a debtor's ability to assume and assign executory contracts and unexpired leases over the objection of a nondebtor counterparty, even when the contract contains otherwise valid anti-assignment provisions. Moreover, as demonstrated in a recent decision by the U.S. District Court for the District of Delaware, this statutory tool can be used despite its negative impact upon the underlying economics of the original contract, as in Antone v. Haggen Holdings (In re Haggen Holdings), 2017 U.S. Dist. LEXIS 139272 (D. Del. Aug. 30).
By Andrew C. Kassner and Joseph N. Argentina Jr. | September 13, 2017
Bankruptcy cases are often filed after a distressed company has determined the only way for the business to survive as a going concern is to pursue a sale. The sale process is conducted prior to the filing, and the case is filed, together with a request that the court approve the sale of the company pursuant to the terms of the negotiated sale agreement unless a higher offer is received. Often there is no alternative, and the question is whether the sale to the bidder will be approved and closed. If it does not close and the company is forced to liquidate, other federal laws may come into play.
By Rudolph J. Di Massa Jr. and Catherine B. Heitzenrater | August 17, 2017
Whether a claimant is entitled to an administrative expense claim, or simply a prepetition claim, can mean the difference between full payment of the claim and the recovery of only pennies on the dollar. Accordingly, a significant amount of litigation in bankruptcy cases centers around the priority status to which certain claims are entitled. The U.S. Bankruptcy Court for the Northern District of Illinois has recently issued a decision granting priority status to claimants seeking damages for violation of the Worker Adjustment and Retraining Notification Act (the WARN Act). Given the significant liability that debtors could face under the WARN Act, this decision is relevant to all bankruptcy practitioners.
By thelegalintelligencer | The Legal Intelligencer | August 4, 2017
Bankruptcy court misapplied the concept of constructive receipt to find buyer "received" goods shipped FOB at the port of origin because a buyer did not constructively receive goods when they were delivered to a common carrier, even if the risk of loss passed at that time, and receipt occurred when the goods were in the buyer's physical possession. Reversed.
By Francis J. Lawall and Marcy McLaughlin | August 3, 2017
In a recently decided, but long-running dispute, the U.S. Court of Appeals for the Third Circuit has found that oil producers do not hold automatically perfected security interests in product they sell to midstream intermediaries, nor are the proceeds generated through the subsequent sale of such product held in an implied trust for the benefit of the upstream producers, as held in Arrow Oil & Gas v. J. Aron (In re SemCrude), 2017 U.S. App. LEXIS 12975 (3d Cir. July 19). In its decision, the Third Circuit determined that an automatically perfected security interest or implied trust would result in "chaos" in an industry where oil is comingled and sold multiple times in the stream of commerce.
By Lizzy McLellan | July 18, 2017
A Philadelphia lawyer from Duane Morris is one of the newest knights of the Republic of Italy, a distinction he received for his legal work against the Republic of Argentina on behalf of Italian citizens.
By Andrew C. Kassner and Joseph N. Argentina Jr. | July 14, 2017
Over the years, the real estate industry relied heavily on securitization vehicles to finance commercial real estate projects. The loans are packaged and then sold in pools to investors. Various mechanisms have been developed to facilitate collection of the loans without the uncertainty of a borrower bankruptcy filing that could delay and increase the costs of collection. Lenders in these secured transactions often use special purpose entities, or SPEs, to attempt to limit the risk of a borrower bankruptcy filing. While these structures can vary, the concept is to create a separate corporate entity whose only purpose and asset is the one real estate project, and the only significant obligation is the mortgage loan. The SPE is isolated from the financial affairs of the corporate parent or affiliates. The lender requires the borrower to appoint an independent director to the board from a mutually acceptable source, and unanimous board approval for certain key decisions, such as the decision to file for bankruptcy. Consequently, a lender is able to reduce the risk of delay after default and high costs of collection, and the borrower benefits from lower interest rates and fees from the lower cost loan.
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