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Bankruptcy and Creditor's Rights



Bankruptcy protection provides a powerful national (even international) forum for the protection of individuals and entities with creditor issues. The Bankruptcy Code establishes significant statutory and court procedural requirements, restrictions, rights and powers for a debtor once a Bankruptcy petition is filed. At the same time, the Bankruptcy Code establishes a veritable thicket of complex obligations, rights, responsibilities and potential risks for the unwary who have a relationship with a bankruptcy debtor, not only where the debtor owes money, but virtually every other business relationship imaginable, such as landlord or tenant, equipment lessor or lessee, contract party, secured creditor, mortgagee, intellectual property licensor or licensee, whether that relationship is for money owed, employee or employer, vendor, shipper, contactor, subcontractor, or materialmen. Many of the creditor’s rights and protections must be timely and properly raised to be enforced. The lack of diligent action can lose, or severely diminish, the creditor’s rights and potential recoveries in a Bankruptcy situation. Our firm is very well positioned to advise and enforce the rights of those who must deal with a Bankruptcy debtor. We practice in all the state and federal courts of Ohio, as well nationally in Bankruptcy matters as our clients’ circumstances may require.

Counsel Respecting Enforcement Of Creditor Rights

As with much of business, avoiding a potential problem is much more efficient that solving the problem after it arises. But this approach requires be aware of potential problems and potential solutions in the first place. Our firm is especially aware of the implications to our clients should a business relationship or intended transaction become the subject to a subsequent Bankruptcy, and regularly and consistently counsel our clients about choices that can minimize their exposure in such a situation, as well as be able make choices and undertake strategies that can maximize their position and enforce their rights.

Secured Creditor Rights Enforcement and Protection

Secured creditors enjoy special protections in Bankruptcy, but all provisions to perfect a secured creditor’s right must have been timely performed to enjoy that status in a Bankruptcy. Accordingly, attention to and completion of all requirements for perfection of a security interest will be crucial. These mean not only the appropriate documentation, but details such as proper notarization of documents, proper public filings, and many other similar details. Likewise, once a Bankruptcy is filed, a secured creditor’s rights must be properly and timely asserted, or the benefits of those rights can be lost or rendered meaningless. Whether enforcing a creditor’s rights to adequate protection, to recovery of collateral or to restricting or preventing use of cash collateral, our firm is aware of the burdens and hurdles, potential risks and rewards that arise in these situations, and have effectively guided our clients in enforcing their rights and protecting their positions under difficult circumstances.

Defending Bankruptcy Litigation

Among the most frustrating aspects of Bankruptcy for creditors and non-creditors alike, are the very powerful rights that allow the debtor or trustee to essentially undo (avoid) and recover for the Bankruptcy case the property transferred, or its value, and certain payments made by the Debtor before the Bankruptcy case was filed, in some cases years before. These rights may engender demands to or lawsuits against a creditor or non-creditor to recover preferences, state and federal fraudulent conveyances (whether intentional or not), even undo or recover the value of sales transactions, setoffs, forgiven debt, the release of mortgages or liens, or even the termination of leases and contracts rights by the Debtor that occurred during the period before the Bankruptcy was filed. For many years, our firm has defended these types of avoidance and recovery actions, as well as successfully asserted defenses, claims and other rights of our clients, in Bankruptcy courts. Importantly, with a deep understanding of these types of potential risks, issues, and costs, our firm provides practical and knowledgeable counsel and advice so as to minimize these risks for our clients before the reality of a Bankruptcy filing occurs.

Dealing with Insolvency Issues

We represent clients who are involved in negotiations with financially challenged persons, both before and after that challenged person may be forced into Bankruptcy. The breadth of these topics is really unlimited, and can include: Landlord and Tenant Rights and Protections Defending Claims to recover Preferences, Fraudulent Conveyances, Lien Avoidances, Use of Cash Collateral, Objection to Claims Allowance; Adversary Proceeding and Contested Matters Litigation Enforcing Proofs of Claim, Lease and Contract Assumption or Rejection and Damages, Enforcing Creditor Chapter 13 Rights, Asserting with Objections to Debtor Discharge and Claim Dischargeability Enforcing Claims and Preparation of Proofs of Claim, Lease and Contract Assumption or Rejection and Damages, Enforcing Creditor Chapter 13 Rights, Asserting with Objections to Discharge and Dischargeability Representation of Official Creditors Committee, Local Counsel, Conflict Counsel Counsel, Advice, and Practical Business Solutions for Potential Transactions or Troubled Business Relations