Many struggling businesses need the protections offered by Chapter 11 bankruptcy, but Chapter 11 is not the right choice or even feasible for every business with heavy debt. Chapter 11 is highly procedural and costly in terms of money and time, and there may be better options for debtors and creditors alike.
Whether you're considering the sale or purchase of a commercial or residential property, there is much at stake in real estate transactions. To protect your interests, it is crucial to have a real estate law attorney cover your legal bases. A lawyer can negotiate the terms of the deal and document the transaction with a detailed contract.
The Bankruptcy Appellate Panel of the Ninth Circuit ("BAP") recently issued the opinion, Kallman & Co. LLP Gottlieb (In re Lewis), BAP No. CC-13-1367-TaDKi (9th Cir. BAP Aug. 20, 2014), which held that a non-debtor spouse may purchase a debtor's claims under Section 363(i) of the Bankruptcy Code when a third party's prior purchase of the same claims was not consummated. Prior to filing bankruptcy, the Debtor commenced an action against Kallman & Co. LLP (K&C), his former employer, in California state court ("Claims"). The Debtor then filed a Chapter 7 bankruptcy filing, but the Debtor's spouse ("Non-Filing Spouse") was not included in the bankruptcy filing and was thus not a debtor. K&C and the Chapter 7 Trustee reached an agreement where K&C would purchase the Claims for $40,000, subject to a minimum overbid of $10,000. The bankruptcy court overruled opposition by the Debtor and since there were no overbids, approved the sale under Section 363(b) of the Bankruptcy Code to K&C ("K&C Sale Order"). However, one week after the K&C sale hearing, the Non-Filing Spouse notified the Trustee that she intended to exercise her right under Section 363(i) to purchase the Claims for $40,000.
The Ninth Circuit U.S. Bankruptcy Appellate Panel in In re KVN Corp., Inc., 13-1318, decided July 29, 2014, remanded a bankruptcy case from the Northern District of California to determine if a carve-out agreement reached between a Chapter 7 trustee and a bank resulted in a benefit to the bankruptcy estate. Upon the debtor's bankruptcy filing, the bank approached the trustee seeking her aid in selling the lender's collateral. The trustee agreed but in exchange, required the bank to pay storage costs and split the net proceeds from the sale with the estate. The trustee estimated the sale would earn up to $4,400 for the benefit of unsecured creditors. The Bankruptcy Court denied approval of the carve-out agreement and the trustee appealed. The BAP agreed with the Bankruptcy Court that generally, fully encumbered property should not be sold by a Chapter 7 trustee and that there is a presumption of impropriety in carve-out agreements but that carve-out agreements are not per se banned. In order to rebut the presumption of impropriety, however, a trustee must show that s/he has fulfilled his/her basic duties, that the agreement benefits the estate, and the terms of the agreement were fully disclosed. In this case, the BAP had a difficult time finding that the carve-out agreement was in the best interest of the estate and remanded the case. Click here to read the full opinion.
Major mergers and acquisitions continue to take shape in the supermarket industry. In June we discussed a 14-percent increase in earnings per share after Kroger paid $2.9 billion for Harris Teeter Supermarkets. Kroger is currently the nation's largest supermarket chain.
In 2005 IBM stepped away from the consumer products market to focus on business customers. The move came after years of trying to compete with Apple, which of course has dominated the consumer market with iPhones and iPads. The rivalry between the two companies dates back to when personal computers first became available, so in a way the recent announcement of the business' partnering up was a bit of a surprise.