The Chapter 11 Reset: Can Plans Die of Old Age?

Originally published in Commercial Law World, July/August 2011, Volume 28 | Issue 3

By David J. Cook

Chapter 11 confirmed plans are born, live and die of old age. This article explains how Chapter 11 plans, like any other federal judgment, can expire.

Read the complete article here.

Luc v. Chien – A Cautionary Tale

These three appellate opinions depict the classic story of a plaintiff enjoying victory in a civil proceeding, only to but find recovery illusory. The plaintiff files a fraudulent conveyance action and scores a money judgment against the conveyee. However, the fraudulent conveyee declines payment.

When pressed for payment the fraudulent conveyee files Chapter 7. Claiming that she was the victim of wrongful conduct, the plaintiff files an action to exempt the debt from the discharge under Bankruptcy Code Section 523(a)(6) [willful and malicious conduct].

The victim however, runs out of luck and loses.

The first appellate opinion describes her victory against the landlord.
LUC v CHIU 3/30/2001

The second appellate opinion describes her victory against the conveyee.

LUC v CHIEN 10/28/2003

The third appellate opinion describes the conveyee’s victory in securing a discharge of the debt.

LUC v CHIEN 2/7/2008

Seeking a Homestead Exemption? Do Not Fraudulently Convey Your Home.

Prior to the filing of his bankruptcy, the debtor conveyed his residence to his parents. This conveyance apparently constituted a fraudulent conveyance. The debtor claimed the property as exempt in order to protect some of the equity. Bankruptcy Code Sec. 522(g) bars a debtor from exempting property which was fraudulently conveyed.  This case is important in illustrating the dire risks of any type of asset protection strategy.

View the order here

The Death of Chapter 11 Plans: Are Confirmed Chapter 11 Plans Subject to Statutory Renewal?

Pratt’s Journal of Bankruptcy Law: Volume 7 – Number 1 – January 2011

By David J. Cook

Are confirmed Chapter 11 plans of reorganization immortal or do they have an expiration date like any other federal district court judgment? This article will answer this question and will conclude that a Chapter 11 confirmed plan — the order confirming the plan — is not immortal. A confirmed plan of reorganization under Chapter 11 requiring the payment of money is a federal money judgment and therefore subject to the requirements of state statutory renewal similar to any federal or state money judgment based on the law of the domicile where the district or bankruptcy court is sited. Confirmed plans expire like any other federal or state money judgment. Upon expiration of the confirmed plan and depending upon the renewal statutory scheme of the domicile state statute, the debtor is discharged of all continuing obligations under the plan including obligations to pay creditors directly or a trust established by a the plan for benefit of creditors.

Read the Full Article Here

Intentional Infringement in IP Cases as a Bar to Discharge in Bankruptcy

In Smith v. Entrepreneur Media, the 9th Circuit BAP held that intentional infringement of a trademark is the equivalent of an intentional injury so as to preclude a bankruptcy discharge. Furthermore, a finding of an intentional infringement at the trial court level will have collateral estoppel effect in a subsequent bankruptcy proceeding.

Winding your way through Chapter 11 Disclosure Statement and Plans of Arrangements

Originally published in  Newspaper Financial Executives Quarterly, April, May, June 1995, Volume 1, Issue 3.

By David J. Cook

Let’s take a guided tour through Plans of Arrangements and Disclosure Statements in Chapter 11 proceedings. This exercise is important in evaluating benefits under any Chapter 11 for purposes of voting on the plan, financial reporting in evaluating write-offs and collectability, and furthermore evaluating offers from brokers and buyers of claims that were solicited in the Texaco, Macy’s, Emporium, Mega-Foods, and Liquor Barn cases. This tour will also identify pitfalls and follies of many Chapter 11 plans which sometimes produce only questionable benefits. Recent studies indicate that most confirmed Chapter 11s produce a paltry dividend averaging about $.10/dollar, and even confirmed Chapter 11s have a high rate of failure and default, foreclosing any likely recovery with further administrative expense.

Full Text