Month: September 2020

CLE You Can Use: The TBA’s Creditor Practice Annual Forum is this Wednesday

If you need CLE credit and want to learn more about creditors’ issues, the Tennessee Bar Association has a great course coming up this week: This year’s Creditors Practice Annual Forum is this Wednesday, September 30, 2020.

This is generally an in-person event at the TBA headquarters in downtown Nashville, but, this year, it’ll be entirely online (for obvious reasons).

I’m the Chair of the TBA’s Creditors Section for 2020, and it was my job to recruit all the speakers and create the sessions. The online format really made for some fun choices, including finding speakers who otherwise wouldn’t be available to speak at a live event in Nashville.

We’ve got a Judge from Shelby County. A digital media specialist from Atlanta. A bankruptcy debtor’s lawyer from Jackson. A former creditor lawyer turned tech guru from Memphis. And, to everybody’s surprise–a creditor lawyer from California! (Note: Nobody even knew that California had creditor lawyers; we all assumed that they only had different levels of debtor focused lawyers.)

In all seriousness, it’ll be a great program. Topics include:

“A Creditor’s Rights: Top Issues and Common Mistakes From the Judge’s Perspective” by Hon. Phyllis Gardner, Hon. Lynda Jones and moderated by Kara Reese.

“The Future of Collections and Bankruptcy in the New Recession” by Monique Jewett-Brewster, Tracy L. Schweitzer and Jerome Teel, Jr.

“Legal Technology Update: Zoom, Slack, and Other Things You Never Realized You Need” by Zack Glaser, Lori Gonzalez and Kim Bennett.

And, remember, your Tennessee Bar Association membership includes 3 free CLE credits, so, basically, this will be free for you all. Thank me later!

How your registered agent’s address could get you sued in their county.

Earlier this week, a lawsuit was filed in Davidson County Chancery Court by a landlord to collect $130,697.44 in unpaid rent from a Romano’s Macaroni Grill located in Rutherford County. There was no allegation that any of the facts of the case occurred in Davidson County or that the parties contractually agreed that the venue for any disputes would be in Nashville.

Should this lawsuit be dismissed for improper venue, where the business, all operations, and the leased premises were all in Rutherford County?

Not necessarily. Here’s why: All of the Defendants use corporate registered agents whose offices are based in Davidson County, and that subjects them to venue in Davidson County.

When analyzing venue for causes of action under Tenn. Code Ann. § 20-4-101(a), a defendant can be “found” in “any county wherein it has an office for the furtherance of its business activities.”

Tennessee courts have said that a registered agent’s address is an office for the furtherance of the defendant’s business activities, and it doesn’t matter that the defendant doesn’t actually operate a business out of that address or doesn’t otherwise have any other connection to that county. See Fed. Exp. v. The Am. Bicycle Grp., LLC, No. E200701483COAR9CV, 2008 WL 565687, at *3 (Tenn. Ct. App. Mar. 4, 2008).

Maybe this isn’t a big deal–most of these corporate agents are located in Davidson County, and Nashville uniformly has very strong courts and judges.

But, Tennessee is a very, very long state. It’s definitely something to keep in mind when you’re a company in Greenville or Memphis, and you’re selecting a registered agent.

The Palm and the Nashville Hilton’s litigation over unpaid COVID rent has touched almost every trial court in Davidson County.

As you all know, The Palm restaurant in Nashville sued the Nashville Hilton in July. At the time, The Palm was four months in arrears in its payment of rent.

But, despite being in payment default, The Palm went on the offensive and premptively filed the first lawsuit, arguing that the landlord’s (i.e. the Nashville Hilton) own shut-down in response to COVID was a breach that excused The Palm’s payment of its rent.

At the time, I marveled at the audacity of the tenant in making the first move. Today, however, I’ve discovered that this dispute has gone absolutely bonkers, and it’s has been (or is being) litigated in nearly every trial court in Davidson County.

First, there was the Chancery Court lawsuit filed by The Palm on July 9, 2020.

Then, after the Hilton declared The Palm to be in breach on July 13, 2020, the Hilton filed a Davidson County General Sessions evictions lawsuit on July 14, 2020.

In response, The Palm filed a Notice of Removal of the detainer action to the District Court for the Middle District of Tennessee on August 7, 2020. This prompted the Hilton to file a notice of voluntary dismissal on August 10, 2020.

Then, the Hilton filed a second detainer action in General Sessions Court on August 13, 2020. On August 26, 2020, The Palm filed an Application for Removal of the matter to Davidson County Circuit Court, which was granted.

So, what courts did they miss? Criminal Court? Bankruptcy? Environmental Court?

This dispute involves two mega-law firms, so it’s fun to see big-time lawyers fighting over eviction issues in small claims court.

Still, though, I have to wonder if the Hilton could have opposed The Palm’s request to remove the matter to Circuit Court, which was–possibly–an attempt to get the matter moved to the slower-paced Circuit Court, but without having to post the detainer possessory bond pursuant to Tenn. Code Ann. § 29-18-130(b)(2), which requires a tenant that loses in sessions court to post one year’s worth of rent in order to remain in possession of the property.

Sessions Judges don’t like to waste valuable docket time on complex commercial matters, so they are generally happy to allow complicated, discovery-heavy trials to be removed to Circuit Court pursuant to Tenn. Code Ann. § 16-15-732.

But, at the same time, it’s a move that Sessions judges see all the time, and the Judges will sometimes ask tenant’s counsel “Is the rent paid current?” and, depending on the answer, grant a judgment for possession, and tell the tenant’s counsel to appeal and sort it out in Circuit Court.

I don’t want to ruin the developing story, so I will remain quiet about the Landlord’s options in Circuit Court to force payment of rent. But they have a few.

Whatever direction this goes, in the age of COVID, this qualifies as entertainment (for law nerds).

341 Stories: Law Firm Pay-Cut Shaming; I bought a boat; Wear Pants to your Zoom Hearings

I wanted to get a blog post out before everybody went home for the long weekend, but then I remembered that everybody is already at home…

My beef with the TBA Today’s COVID Coverage. I love the Tennessee Bar Association and the TBA Today daily email. You know this, because I talked about it 7 years ago. This email is an awesome resource that provides daily updates about legal news, career moves, awards, events, and new and notable Tennessee and Sixth Circuit appellate opinions.

But, early in the COVID crisis, the email started running stories about law firm pay cuts in Tennessee, with mentions of specific law firms. Yeah, it’s legal news, but it also felt like it was none of my business.

Plus, it led to two things: (1) Local lawyers started gossiping about other law firms’ financial stability (which was a terrible look, considering people lost jobs); and (2) Other law firms who really, really needed to take a hard look at their financial decisions and consider smart cuts may have elected to do nothing, in order to stay out of the news. Lose / Lose, right?

This is probably the Bankruptcy Lawyer in me talking, but a few financial adjustments made on the precipice of the biggest economic crisis of our era shouldn’t be considered a bad thing. Trust me, the law firms I’d be most worried about right now are the ones who haven’t changed their financial model at all.

But, as Kermit the Frog likes to say, that’s really none of my business either, and I’d rather it all be left out of my daily news. Especially as more layoffs, hiring freezes, and pay cuts are on the horizon.

In other questionable financial planning news… During the COVID crisis, I bought a boat.

My debtor bankruptcy lawyer friends tell me that an ill-advised boat purchase is Step 3 in a five-step process for a potential bankruptcy filing. Great news for the Anthony household, right?

Well, it made national news, when a reporter from USA Today called to talk about my purchase for his story, “Everyone is buying boats” during the pandemic, and it’s causing a short supply.

It was a funny, half-hour long conversation about boat ownership, with the final article coming across a bit more complain-ey than I actually feel.

“I absolutely regret purchasing it.”

In truth, I am merely luke-warm about boat ownership. See you out on the water this Labor Day weekend!

Zoom Hearing Advice. In actual legal news, here’s a great twitter thread with tips and advice from a Judge for your Zoom video court hearings.

All of these are spot on. In the past month, I’ve participated in 2 – 3 video hearings, and I’ve seen pant-less people and also background art that I would describe as “tasteful nude ballerina” art.

Don’t do any of that, say the Judges.