Bankruptcy and Creditors' Rights

Overview

Robinson+Cole’s bankruptcy and creditors' rights practice involves a unique mixture of litigation, business, and finance experience. We work extensively with a broad spectrum of leading lending institutions, companies, and investors in need of specialized debtor/creditor relations counsel on a multitude of sophisticated transactional and litigation matters. Our lawyers have a keen understanding of how to pursue claims, whether arising from a default of normal contractual payment obligations, declining collateral value, or other external factors.

Our Services and Our Team

Our creditors’ rights team assists clients throughout the lifecycle of a credit relationship. We routinely counsel our clients concerning the creditworthiness of transaction counterparties and specialized transaction risks associated with unique collateral or collection issues. Our out-of-court restructuring experience help clients obtain recoveries without the risk, delay, and expense attendant to litigation. Our ability to identify weaknesses in transaction documents, servicing history, or collateral positions promotes an informed decision-making process to avoid unanticipated consequences of collection activity and enhances our clients’ ability to correct or adjust issues early in a collection process. If formal collection actions are required, we leverage our experience of foreclosure, secured party sales, litigation, bankruptcy, and receivership to maximize creditors’ recoveries.

Preliminary Analysis

To understand the full extent of rights and remedies in the event of a default, our team collaborates with clients to analyze the details of applicable credit documents such as the following:

  • original contract, loan, and mortgage documentation, including original due diligence materials, amendments, modifications, waivers, and consents
  • current financial statements and other reporting documentation
  • changes in participants, agents, and co-lenders

Our creditors' rights lawyers also analyze the nature and extent of any collateral securing the underlying obligation and the client's rights with respect to the collateral.

Out-of-Court Restructuring and Workouts

If possible, our creditors' rights lawyers negotiate consensual modifications or settlements prior to or shortly after pursuing our clients’ collection remedies. Successfully negotiating with a debtor in this environment depends on identifying a clear exit strategy and setting realistic goals to implement the strategy.

Foreclosure

Because consensual arrangements are not always possible, the next step may be foreclosure. We have considerable judicial and nonjudicial foreclosure experience and are knowledgeable in large commercial and industrial foreclosures as well as volume commercial multifamily housing foreclosures. The lawyers who handle these matters understand the common intersection of foreclosure and bankruptcy and are prepared to pursue our client’s interests in state and federal insolvency proceedings.

Bankruptcy and Receivership

Our lawyers have represented virtually all constituencies having a stake in bankruptcy and state receivership cases, including the following:

  • secured and unsecured creditors
  • critical vendors
  • landlords
  • creditors’ committees
  • equity security holders
  • trustees and receivers
  • debtor-in-possession (DIP) lenders

We regularly litigate these issues arising in bankruptcy and state insolvency proceedings :

  • relief from stay
  • cash collateral and DIP financing issues
  • retention and bonus motions
  • critical vendor payments
  • proposed asset sales
  • administrative and other priority claim issues
  • lease assumption and rejection
  • dismissal and conversion of bankruptcy proceedings

In addition, we can develop and negotiate consensual and contested plans of reorganization and liquidation, including out-of-court and prepackaged plans.

Debtor/Creditor Litigation

Because the restructuring and liquidation process can be contentious, with diverse constituencies competing for limited assets, clients benefit from our substantial litigation experience in state and federal court, including bankruptcy proceedings. Our representation includes these areas:

  • guaranty enforcement actions
  • preliminary injunctions
  • lender liability litigation
  • preference and fraudulent transfer litigation
  • claim and cure objections
  • subordination actions

Creative Collection Strategies

Maximizing creditor recovery is as much about securing assets to pay our clients’ claims as establishing that money is due. Our lawyers develop effective and creative strategies to collect from guarantors or others that are potentially liable to our clients. Mechanisms such as prejudgment remedies of attachment and garnishment, injunctive relief to freeze assets,  asset discovery, and debtor examinations are all part of our strategy to see that our client’s claims are not rendered uncollectable through the dissipation of assets.

    • Experience
      • Represented financiers, who provided venture capital to a marketing company, in successfully moving to convert the marketing company’s bankruptcy case from a Chapter 11 reorganization to a Chapter 7 liquidation and in foreclosing on collateral, including the debtor's intellectual property. Representation included extensive discovery and briefing, culminating in a successful trial in the Bankruptcy Court in the Southern District of New York.

      • Represented foreign liquidator of overseas banks in litigation to recover more than $140 million in U.S. assets seized by the New York superintendent of banks. To recover the seized funds for distribution in liquidation proceedings in Belgrade, we filed an ancillary proceeding under the United States Bankruptcy Code in the Bankruptcy Court for the Southern District of New York. The litigation included successful appeals to the District Court and the United States Court of Appeals for the Second Circuit. Following remand, the litigation settled on advantageous terms. We defeated subsequent collateral attacks on the settlement in New York State Supreme Court and the Appellate Division.

      • Represented creditors in some of the largest bankruptcy cases throughout the United States, including Lehman Brothers, Chrysler, Lyondell Chemical, Enron, WorldCom, Adelphia, Toys “R” Us, RadioShack, Rue21, Answers Holdings, and US Airways I and II.

      • Represented institutional lender in a multifaceted workout with affiliated borrowers involving several real estate assets and equipment, culminating in a heavily negotiated forbearance agreement, pursuant to which our client received full repayment of the indebtedness.
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    • News
      • August 15, 2017

        Fifty-Nine Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2018

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      • August 28, 2012

        Robinson & Cole Receives Top Listing in Connecticut Attorney Count in Best Lawyers National Peer Review Survey

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      • May 14, 2012

        Robinson & Cole Welcomes Twelve New Attorneys in Five Offices Expanding its Presence across the Northeast

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      • February 2, 2010

        Robinson & Cole Attorneys Elected to Board of Directors of Turnaround Management Association’s Connecticut Chapter

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    • Publications + Presentations
    • "Unharnessing the Governmental-Unit Stay Exception: SEC v. Miller," co-authored by Patrick M. Birney and Andrew A. DePeau (May 2016)
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      "Series LLCs: Can a Series File for Bankruptcy, and What if It Does?" published in American Bankruptcy Institute Journal, authored by Steven J. Boyajian (March 2016)
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      "Perfecting Security Interests in a Debtor's Insurance Policy," published in American Bankruptcy Institute Journal, authored by Patrick M. Birney (April 2015)

      "Commercial Lending and Regulatory Compliance: What Lenders Need to Know," presented by Norman H. Roos, webinar through Lorman® Education Services (1/17/2012)

      "What Every Litigator and General Practitioner Should Know About Bankruptcy Law and Procedure in These Turbulent Economic Times," at Fairfield County Bar Association program (2/2009)

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