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Are the Bankruptcy and Insolvency Provisions in My Contract Enforceable? - Creditor’s Rights Toolkit

Parties often include bankruptcy and insolvency provisions in their agreements to protect themselves should the contract counterparty file for bankruptcy or take other insolvency-related steps. While many of these provisions...more

Taking Stock of Liens While There Is Still Time – Do You Really Have the Collateral? - Creditor’s Rights Toolkit

Trade creditors are usually grouped with “general unsecured creditors” in bankruptcy, but some have liens that can elevate their claim priority. To achieve this, the lien must be properly granted and perfected under...more

What Is the Difference Between Recharacterization and Equitable Subordination and How Can They Affect My Claim? - Creditor’s...

When a company files for bankruptcy, creditors often wonder if they will get paid. The answer depends on the priority and treatment of each claim in the bankruptcy process. Troutman Pepper's Creditor’s Rights Toolkit...more

The Debtor (or Its Successor) Has Objected to My Claim – What Do I Need to Do? - Creditor’s Rights Toolkit

Often, after filing a proof of claim, a creditor can go months or even years, without hearing anything regarding their claim. Then, unexpectedly, the creditor's proof of claim faces an objection, possibly on multiple grounds,...more

What Is an Assignment for the Benefit of Creditors and How Does It Differ From a Bankruptcy? - Creditor’s Rights Toolkit

An assignment for the benefit of creditors (ABC) is a process by which a financially distressed company (referred to as the assignor) transfers its assets to a third-party fiduciary (referred to as the assignee). The assignee...more

What Are Fraudulent Transfer Claims and What Defenses Exist to Such Claims? - Creditor’s Rights Toolkit

A fraudulent transfer is an attempt to avoid a debt by improperly transferring assets to a third party, or a transfer of assets for less than fair value made while the company is insolvent or will become insolvent as a result...more

What Is an Involuntary Bankruptcy and How Can Creditors Use This Powerful Tool? - Creditor’s Rights Toolkit

In most bankruptcies, the company decides to file for relief. In involuntary bankruptcies, creditors force the company into bankruptcy. Involuntary petitions are an extreme remedy, and therefore the requirements and standards...more

Will Modifying the Terms of a Debt Instrument Result in a Taxable Transaction? - Creditor’s Rights Toolkit

When a borrower struggles to meet the payment obligations of a debt instrument, the borrower and creditor may work together to modify some of the terms to give the borrower a little breathing room or provide the creditor with...more

What Is the Difference Between Pre-Packaged and Pre-Negotiated Bankruptcy Plans, and What Are Restructuring Support Agreements? -...

Unlike traditional Chapter 11 “free fall” bankruptcy cases, some debtors enter bankruptcy with pre-packaged or pre-negotiated plans, offering major advantages such as reduced case length. These plans, largely drafted and...more

What Are Some Less Traditional Defenses to a Preference Action? - Creditor’s Rights Toolkit

The ordinary course of business, new value, and contemporaneous exchange for new value defenses are the most frequently used defenses in a preference action. However, there are additional, less common defenses that a...more

Should I Care That the Debtor Has Filed a Motion to Sell Its Assets? - Creditor’s Rights Toolkit

Sales under Section 363 of the Bankruptcy Code have become commonplace in bankruptcy cases as a mechanism to liquidate a debtor's assets and maximize value for creditors. Selling the debtor's assets to a third party offers...more

What Is a 341 Meeting, and Do I Need to Attend? - Creditor’s Rights Toolkit

The purpose of the 341 Meeting is to examine the debtor’s financial position and to confirm facts stated by the debtor in the bankruptcy filing. While creditors are not required to attend the 341 Meeting, creditors have an...more

Can I Enhance My Prospects for Payment Through a Purchase Money Security Interest? - Creditor’s Rights Toolkit

A seller of goods may gain priority over other creditors, and enhanced prospects for payment, by taking and perfecting a purchase money security interest (PMSI) in the goods sold to a customer. This article will explain what...more

What Are a Disclosure Statement and a Plan, and What Are the Key Elements of These Documents? – Creditor’s Rights Toolkit

Disclosure statements and plans contain considerable information, and the most pressing issues for a creditor can vary depending on the nature of the creditor’s claim and its relationship with the debtor. This is determined...more

What Is the Contemporaneous Exchange Defense to a Preference Action?

Preferences are a common issue in bankruptcy proceedings. The Bankruptcy Code provides several affirmative defenses to assist creditors in mitigating or eliminating their preference exposure. One such affirmative defense is...more

How Can I Claim a Business Bad Debt Deduction? - Creditor's Rights Toolkit

The Internal Revenue Code permits a business bad debt deduction when a customer fails to pay for the services rendered or the products supplied by your business. However, the ability to claim an ordinary deduction with...more

What Is a Stalking Horse Bidder in a Section 363 Sale and Why Might I Want to Be One? - Creditor's Rights Toolkit

Serving as the stalking horse bidder in a Section 363 sale can provide a buyer with financial and legal protections, as well as better position the buyer to ultimately acquire the debtor’s assets. This article addresses the...more

Can I Net Amounts Owed to the Debtor Against Amounts Owed to Me? - Creditor’s Rights Toolkit

There are two similar but distinct mechanisms through which a creditor might net amounts owed to the debtor against amounts owed by the debtor — setoff and recoupment. Understanding the distinction between them, and how...more

Who Is the Claims Agent and What Type of Information Can I Obtain on Their Website? - Creditor’s Rights Toolkit

Troutman Pepper's Creditor’s Rights Toolkit is a series that provides practical insights to help creditors confront the challenges of commercial bankruptcy. A claims agent is a third party retained by the debtor to take on...more

Who Is a Secured Creditor and What's the Difference Between a Secured Creditor and an Unsecured Creditor? - Creditor’s Rights...

Troutman Pepper's Creditor’s Rights Toolkit is a series that provides practical insights to help creditors confront the challenges of commercial bankruptcy. A secured creditor is a creditor whose claim is supported by a...more

Third Circuit Rules that Parties Cannot Contract Around the Mutuality Requirement for Setoff in Bankruptcy

On March 19, in a matter of first impression, the Third Circuit Court of Appeals (Court) held that triangular setoff is not permissible in bankruptcy due to Bankruptcy Code Section 553(a)’s mutuality requirement, and that...more

Supreme Court Rules that Possession of Estate Property Does Not Violate Automatic Stay

On January 14, the Supreme Court ruled that more than a mere retention of estate property is needed for a party to violate the automatic stay, vacating and remanding a decision by the U.S. Court of Appeals for the Seventh...more

Overcoming a Missed Bar Date Requires More Than Sympathetic Facts

Even under the most sympathetic of circumstances, courts are charged with respecting the integrity of deadlines and employing a cool, impartial approach to everyone, including the most desperate of late claimants....more

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