Bankruptcy Litigation Strategies for Secured Lenders and Other Creditors
Minimizing Risks of Fraudulent Conveyance, Preference Challenges and Avoidance Actions
Recording of a 90-minute CLE webinar with Q&A
This CLE course will prepare counsel to lenders and creditors to deal with the common pitfalls in avoidance and preference litigation when the borrower is insolvent or in bankruptcy. The panel will outline best practices to protect security interests and other payment rights.
Outline
- Challenges to perfection and priority of collateral under UCC
- How could a construction lender with perfect filings lose to an equipment manufacturer’s self-help repossession?
- Fraudulent conveyance challenges
- Is the parent “downstream” guaranty for subsidiary debt still beyond successful attack?
- Is the subsidiary “upstream” guaranty for parent debt worth the paper it is printed on?
- Is a subsidiary “cross-stream” guaranty of another subsidiary After TOUSA, are
- Is the solvency savings clause or a limitation on the amount of a guaranty better practice?
- Is the Ponzi scheme victim immune from successful attack because he gave value or had good faith?
- Preference challenges
- Has the Deprezio patch held?
- Is the guarantor’s waiver of subrogation rights still needed?
- Vendors; protection in reclamation rights and mechanics liens
- Contractor problems with inchoate rights in mechanics liens and surety claims
- What can be done to protect a litigation settlement?
- Should the Ponzi scheme victim lose to the bankruptcy trustee’s administrative expenses for cleaning up the schemer’s mess?
- Intercreditor disputes
- Should the subordinated creditor agree to the “indefeasible” payment of the senior creditor?
- What happens when the subordinated creditor agrees, collects at a refinancing, and distributes to its investor members?
Benefits
The panel will review these and other key questions:
- What are the key steps for lenders and their counsel to avoid the most common pitfalls in perfecting security interests to withstand challenges in the event of the borrower's bankruptcy?
- What are the best practices for the lender during a loan workout to strengthen its position and minimize its risks in bankruptcy or foreclosure sale?
- How do the bankruptcy concepts of fraudulent transfer and preference impact lender and creditor post-default actions?
- What steps can an entity in litigation with an insolvent borrower take to protect their settlement?
Faculty
F. Thomas Rafferty
Principal
Ober Kaler
He represents secured and unsecured creditors, lender agents, indenture trustees, debtors, guarantors, receivers,... | Read More
He represents secured and unsecured creditors, lender agents, indenture trustees, debtors, guarantors, receivers, equity owners and bankruptcy trustees in bankruptcy cases, restructurings, non-judicial workouts, receiverships and litigation in all courts. He also represents clients in the purchase and sale of assets and businesses assets, usually in distressed situations.
CloseDavid S. Musgrave
Principal
Ober Kaler
He represents banks and financial institutions in a wide range of creditors’ rights matters, and provides counsel... | Read More
He represents banks and financial institutions in a wide range of creditors’ rights matters, and provides counsel on financial matters, including commercial and corporate finance, and commercial real estate. With more than 30 years experience, he advises and litigates on behalf of secured and unsecured creditors, primarily in loan workouts, financings, contract disputes and related matters.
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