There are hardly any bankruptcy lawyers in Nashville under the age of 40.
With three law schools in the Middle Tennessee area, you’d think there’d be more than enough lawyers in Nashville to satisfy any and every conceivable legal need.
If so, you’d be wrong. In my recent experience, Nashville is an under-lawyered city, if you judge from the number of new calls I get (across the legal spectrum) and, as result, the difficulty I have finding a lawyer to refer these callers to.
As the country braces itself for an economic dip and you hear about law firm layoffs, I repeat my old advice: Learn Bankruptcy.
A bankruptcy practice is one of the best kept secrets in the profession. It’s all based on the Bankruptcy Code, which you can read cover-to-cover in an afternoon. It’s a small, collegial and sophisticated bar (the fact that it’s so small tends to prevent the shenanigans lawyers pull in the broader legal universe).
Plus, starting in a bankruptcy practice exposes you to nearly every legal issue imaginable, since so many state and federal law issues end up in bankruptcy court. Many complex transaction lawyers cut their teeth doing 363 sales in bankruptcy court.
During the last recession, Nashville was lucky and recovered quickly, with real estate prices rising, corporate growth, and a robust commercial lending base in the immediate years after the downturn.
The downside of that is that we’ve lost a generation of bankruptcy lawyers to corporate, commercial lending, and other (more sexy) practice areas. Today, in the year 2023, the lawyers who file debtor bankruptcies are largely the same ones who were filing those cases fifteen years ago. You can count the firms who file small/medium corporate chapter 11 cases on one hand.
I expect to see more national and local bankruptcy filings in 2024. If you’re a law student or recent grad trying to differentiate yourself from the pack, learning a little bit about bankruptcy law may be a smart move.
In fairness, since I wrote that post in 2021, my love for WeWork has waxed and waned in stretches.
When I started my firm and wasn’t sure how much office I needed (and for how long), flexible space and term options saved me tens of thousands of dollars. When my family took a 3 week trip to the other side of the world, WeWork Euljiro in Seoul kept my firm running. Plus, as a solo, being around noise and people can be a good thing.
On the other hand, “noise and people” can be bad when it’s mostly “22 year tech bros in shorts and flip flops making loud sales calls.” Don’t get me started about the constant battle to get squatters out of the conference rooms. And, despite what you might think, a dedicated office in a WeWork is surprisingly small and very expensive.
Instead, it’s probably an indication that all those leases signed by WeWork at pre-COVID lease rates (back when the company had a $47 Billion valuation and a “money ain’t no thing” vibe) were simply unsustainable in our new post-COVID reality.
The Bankruptcy Code has a unique tool available for commercial debtors to fix this exact issue. Under 11 U.S.C. § 365, a debtor has the ability to “assume” or “reject” any of its leases. In layman terms, the debtor gets to keep the leases that are useful to keep and cancel the leases that aren’t useful and it doesn’t want to keep. The mere threat of rejection often spurs a conversation between a debtor and a landlord about modifications to the lease to reflect a more realistic rate of rent.
WeWork’s messaging has been clear. They call this a “strategic reorganization process.” That’s a fancy way of saying “bankruptcy” but without saying “bankruptcy.”
That’s surely intentional. The term “bankruptcy” suggests failure or that the company is shutting down.
In reality, a corporate bankruptcy of this magnitude isn’t really a bankruptcy in the traditional sense–it’s a restructuring process that, incidentally, favors the debtor and incentivizes negotiation and cooperation and, as a result, reorganization. I suspect that, when the business people took over from WeWork’s founder in 2020, the first item on their “to do” list was what to do with so many of these terrible leases. Bankruptcy was always a viable option to fix the company’s troubles.
In short, this is a good thing, and this process will probably allow WeWork to shed some of the mistakes of the past and emerge a more viable company going forward.
As a tenant, I’m hoping they succeed. To that end, I’ll vote in favor of any Chapter 11 Plan on the following condition: They have to create some penalty for the squatters in the conference rooms and phone booths. Every single time I book a conference room, when I open the door for my meeting, it’s filled to capacity, with people in shorts and flip flops. We have to fix this next.
It looks very exciting on TV, but success in the legal profession is often a matter of being really good at paperwork.
Proof-reading and getting the details right are essential….
But what makes great lawyers really great is the knowledge and foresight to know which details to include.
On TV, cases tend to end after a passionate closing argument, and the lawyer and client walk out of the courthouse victorious. In reality, most of my cases end with me pouring over the details of a single document–the Order that the Judge will sign–and victoriously e-filing it with the Court Clerk.
When I prepare an order for a Judge’s signature, I try to think through every possible scenario where I’d enforce the terms. When I type the judgment debtor’s name, I make sure I’ve spelled the name the same way it’s spelled on the debtor’s old checks or property deed. If there’s some special request or relief I’ve asked for in my motion, I make sure to recite that in the order and have the order expressly grant it.
A trend I’m noticing lately is that lawyers leave out critical details in their orders, and the omissions hurt their cases.
A good example relates to post-judgment sheriff sales. Sheriff’s sales confuse courts, clerks, lawyers, and sheriffs. The law is tricky and draws on 2-3 separate statutory bases (Tenn. R. Civ. P. 69.07 ; Tenn. Code Ann. § 26-5-101, Tenn. Code Ann. § 35-5-101). County sheriffs are good at a lot of things, but they really dislike having to navigate confusing Tennessee statutes on their own.
A good creditor attorney will think through the entire process, starting at the end (i.e. what will the title company need to insure title on this sale), anticipate all the questions, and have the Order address any possible question that could arise.
Who owns the real property? (Look at the Order.)
What are the liens that are impacted by this Sheriff’s Sale? (Look at the Order.)
Who will prepare and publish the Notice of Sheriff’s Sale? (Look at the Order.)
What’s the minimum price pursuant to Tenn. Code Ann. § 26-5-115? (Id.)
Will there be a deposit? What happens after the sale? When does the buyer get a deed?Will there be a sale contract? What happens with the redemption rights? And so on…
I recently saw an Order Authorizing Sheriff’s Sale that said, basically, “the relief granted in the Motion is GRANTED.”
And that was it. The Order had no specific reference to relief described in the Motion and provided no guidance to the sheriff. Instead, to enforce the Order, the lawyer had to also send a copy of the Motion and hope that the sheriff would connect the dots between the two pleadings.
The lawyer’s job is make the process run as smooth as possible, and that includes anticipating issues and preventing them. One strategy to make the process work is to think through all the issues in advance and, before the Judge signs the order, include it all in the document the Judge signs.
Once the funds are paid out, though, I tell my clients to keep their fingers crossed for a bit more time–at least until the end of the Bankruptcy Code’s “preference period.” Until then, a Bankruptcy Trustee can “recover” payments received by creditors in the 90 days before a bankruptcy case is filed.
The question I often get is this: Does the 90 day period start when the Clerk receives the funds or when the Clerk disburses the funds?
An August 19, 2022 Minnesota Bankruptcy Court opinion (In re Holbert, 643 B.R. 332 (Bankr. D. Minn. 2022))(from the Eight Circuit) presents pretty compelling reasoning that the clock starts ticking upon the Clerk’s receipt of the funds.
Specifically, this Court held that the “transfer” (per 11 U.S.C. § 547(b)) for property held in custodia legis occurs when the property is placed in escrow / deposited with the court.
It will always be frustrating for a creditor to see the money just sitting there, in the court coffers, for 20 days. The silver lining, of course, is that the preference clock also appears to be burning off during that period.
What a time for Nashville’s curbside recycling to get disrupted. I’m not sure I bought any Christmas gifts in-person this season. Instead, I relied on Santa’s elves, dressed in FedEx and UPS uniforms, to deliver the gifts in cardboard boxes.
It’s something I’ve been doing since March 2020, when COVID first disrupted everything.
Red River alleges that the COVID pandemic resulted in more residential waste (and less commercial waste), putting additional burden on Red River (which serviced the residential waste, but generally not the commercial). This resulted in more employee costs and additional wear-and-tear on Red River’s equipment and vehicles. The goals of the bankruptcy are to restructure debt and, possibly, sell the business in parts.
In today’s Axios Nashville newsletter, they report that Nashville “is waiting for the bankruptcy court to determine what happens to its contract, and it’s possible Metro will be allowed to search for a new trash collector.” Well, sort of.
Based on my review of the docket, Nashville has hired a local Texas lawyer, but the real shots are probably being called by the Nashville law firm Bass Berry Sims, which was allowed to appear on behalf of the city “pro hac vice” (which means that an out of town lawyer who is otherwise not licensed in a jurisdiction can appear in a case).
After the entry of that Order on November 29, 2021, Nashville hasn’t filed anything to formally press Red River as to whether it will assume or reject the waste services contract. Instead, my guess is that the city’s very competent counsel are in negotiations behind-the-scenes for Red River to decide whether it can continue to provide the services or whether it’s going to walk away from its obligations.
So far, only one party is really pressing this issue. In its contract, Fort Wayne, Indiana required Red River to enter into a $4,900,000 performance bond and took affirmative steps to make sure that bond was renewed. Fort Wayne issued a default under the bond on December 8, 2021, asking for $1,718,569 in damages for missed collections. On December 14, attorneys for the bonding company filed an Emergency Motion to force “the Debtor to immediately assume or reject the Solid Waste Contract.”
Despite initially being set for December 23, this Emergency Motion has been taken off the docket indefinitely. In the Motion, the insurance agency references testimony showing that many of the municipalities that held bonds allowed them to expire (not Fort Wayne, though).
The next round of hearings in the case are set on January 7, 2022, when Red River will ask the Bankruptcy Court to grant a number of procedural and administrative orders. This includes: the ability to use “cash collateral” (i.e. spend money that a secured lender otherwise has the ability seize and retain); to grant its secured lender (probably the same one holding the cash collateral) a “superpriority” lien on post-bankruptcy assets; to hire all the bankruptcy-related attorneys and professionals; and to set the system by which all of those attorneys and professionals get paid.
And, of course, the orders approving the debtor’s attorneys’ employment and fees will be a big part of getting this case moving. And, wow, bankruptcy lawyers aren’t cheap: Red River’s primary counsel are to be paid hourly rates of $800 (Partner) and $575 and $450 (Associates).
My guess is that, until Red River gets (forces?) its lenders to agree to release its cash for use in business operations (and to fund the bankruptcy), Red River can’t meaningfully determine whether it can assume or reject the contracts. The hearings this Friday will be step one in that process.
As an aside, it bodes poorly that it has taken this long for the debtor to get these administrative motions approved. These are generally referred to as “first day” motions and, yes, they are generally considered and approved early in a case.
Aside from that, Red River will also have to show some ability to actually service the contracts in order to retain those contracts. A big part of chapter 11 bankruptcy is the ability to retain (and assume) the good contracts and reject (and walk away from) the bad contracts. Then, the “reorganized” debtor can either continue to perform the profitable contracts or, if it so choses, “sell” those contracts to somebody else.
Here, if Red River isn’t able to perform or provide a reasonable basis to believe it can perform under the Nashville contract, there will be cause for the city to ask the Bankruptcy Court to force it to decide. The fact that Red River isn’t currently servicing these contracts doesn’t make me feel optimistic about their chances.
The longer my cardboard boxes sit behind my house may be the best indication of where it’s all headed. I’ll update this post when I can see the pile over my fence.
A few days ago, a lawyer from Oklahoma City called to refer me a new case, and, at the end of the call, he asked “Is anybody filing bankruptcy in Nashville? There’s just nothing going on here. Are you hearing anything about when it’s coming back?”
It’s a conversation I’ve had about 100 times over the last year, especially with local bankruptcy lawyers.
As of this moment (December 29), there have been 3,923 debtor bankruptcy cases filed in the Middle District of Tennessee in 2021. Compare that with 2011, when 12,546 debtor bankruptcy cases were filed. How on earth, in this economy and in month 21 of a global pandemic, has there been less than a third of the new cases we saw a decade ago?
For reference, here are the numbers for the past decade (plus):
2021: 3,923
2020: 5,616
2019: 8,263
2018: 8,577
2017: 8,710
2016: 9,198
2015: 9,290
2014: 10,089
2013: 10,092
2012: 11,827
2011: 12,546
2010: 14,063
2009: 14,940
It’s clear that 2021 brought a historically low number of new bankruptcy case filings. It also shows that the Middle Tennesseans aren’t necessarily disinclined to file bankruptcy (or unable to, since so many of the past filers are not time-barred or ineligible under 11 USC § 109 or otherwise). So, why aren’t more people and businesses filing bankruptcy?
Some people refer to the influx of federal relief money and high wages, but I’m not seeing many debtors doing financially better now than they were in years past. 2021 appears to be as big a financial struggle as any of those years before it.
My guess is that the federal and local moratoriums on foreclosures and evictions are a big factor, since so many potential debtors aren’t being forced into a filing to save a imminent threat to their home. For many residential and commercial lenders, even though the moratorium may not apply to their loan, the creditor is nevertheless taking no action, for a number of reasons.
From all over the creditor realm, I have heard for months to mark my calendar for “January 1, 2022,” which was when many of the “big” lenders were planning to turn the foreclosure machine back on. Of course, that was before this latest COVID variant completely reshaped the status quo.
I’d guess that the January 1 date is being moved farther out, especially since we’re back in the throes of an ever-evolving pandemic. While it’s impossible to predict what COVID has in store for us, it’s easy to see that all of the same factors and circumstances are present to keep mortgage lenders at bay.
As awful as it sounds, then, we won’t see more bankruptcy filings until–strangely–the economy gets back to normal and people return to regular life (which, if you ignore my prediction that filings would spike in June 2020, is basically what I said in this old post).
It’s rare the the United States Supreme Court decides a legal issue that affects everyday consumer bankruptcies, but today was one of those days.
In City of Chicago, Illinois v. Fulton, the Supreme Court ruled unanimously that a creditor who repossesses property prior to a bankruptcy filing is not required to release that property after the bankruptcy filing. Per today’s opinion, “mere retention of property does not violate the [automatic stay in] § 362(a)(3).”
This case has real-world implications for creditors, mainly car loan creditors. In the past, if a lender repossessed a vehicle and the borrower filed a bankruptcy case, the debtor would then demand immediate release of the car.
The argument has been that the secured creditor would be in violation of the automatic stay, unless it immediately released the vehicle to the debtor. In our Nashville bankruptcy local practice, the creditor attorney would generally ask for “adequate protection,” meaning proof of insurance on the car and proof that the debtor was proposing a reorganization plan that would pay for the car.
But, in short, if the car creditor tried to keep the car after a bankruptcy was filed, the creditor was swimming in risky waters. That continuing exercise of possession, most of our bankruptcy judges would say, was an action to collect a debt and a stay violation.
Justice Alito’s opinion walks a fine line, noting that 11 U.S.C. Section 362(a)(3) “prohibits affirmative acts that would disturb the status quo of estate property.” The opinion says that simply holding property is not affirmative act; it’s just maintaining the status quo.
While it’s true that that Section 362(a)(3) prohibits “exercising control over estate property,” Alito wrote that this text “suggests that merely retaining possession of estate property does not violate the automatic stay.” The words used in §362(a)(3) “halts any affirmative act that would alter the status quo as of the time of the filing of a bankruptcy petition.” An automatic stay is not “an affirmative turnover obligation.”
In the end, the Supreme Court wrote that “We hold only that mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code.”
This case creates as much trouble as it resolves, honestly. In practical application, where the creditor has repossessed the car, when does the creditor turn it over? In its discretion? After negotiation of plan repayment terms? Never (i.e. the creditor keeps the car and files a motion for stay relief to take an affirmative action–a sale)?
Many years ago, I got a call from a bank attorney who was in the middle of a 4 day trial in Williamson County. It was a lawsuit by a bank to collect its post-foreclosure deficiency balance. The lawyer called me to tell me that the debtor’s attorney had printed out my very own blog post and had introduced it into evidence as a learned treatise under Tennessee Rule of Evidence 618 in order to cross-exam the bank’s expert witness.
While I was flattered (my initial reaction was to ask if the Chancellor was impressed), it was also strange–given my long allegiance to banks and creditors in litigation–that Creditor Rights 101 would be used against a bank. (Also, that debtor’s counsel must have been desperate if he resorted to using my blog post as his Exhibit 15).
Regardless, man-o-man, beware of using this law blog as learned evidence of anything, because I can be really wrong sometimes.
It didn’t happen. Not even close. Literally, the opposite happened.
As of today, October 29, 2020, there have been 4,820 bankruptcy cases filed in the Middle District of Tennessee. That sounds like a lot, but, for comparison’s sake, consider that the 4,820th case was filed on the following dates over the past decade: July 30, 2019; July 20, 2018; July 18, 2017; July 6, 2016; July 15, 2015; June 17, 2014; May 31, 2013; May 23, 2012; May 11, 2011; and May 4, 2010.
Not only are we not hitting a record high, but, instead, new bankruptcies are being filed at a record low pace.
So, today’s news brings more predictions (but, this time, far less bold) via this American Bankruptcy Institute story, which predicts that the new bankruptcies are coming…in 2021.
“As stimulus checks and other forms of temporary relief run out, experts are projecting an increase in personal bankruptcy filings, which have so far been muted during the coronavirus pandemic,” the Wall Street Journal reports. “Only a new stimulus program targeting individuals or government actions forgiving or deferring student loans can keep individual filings from rising.”
In light of all this, I’m not making more predictions, because these are unpredictable times. Our General Sessions Court shuts down evictions and collections dockets, then re-opens them, then drastically limits them, and then reopened them again. People are afraid to leave their houses. Banks are afraid to foreclose on those houses. Lawyers are afraid to go to their offices.
The bankruptcies are coming. But who knows when.
Finally, to all you crafty debtor lawyers out there: I can edit any these blog posts on a moment’s notice.
I represent a lot of landlords all over Tennessee. I also represent a lot of Tennessee small businesses who are, invariably, tenants.
Since COVID-19 hit, I’ve probably read 60 different leases. Sometimes, I’m looking at force majeure provisions or for ambiguities that would provide an argument against payment of rent. Other times, I am reading those same provisions (different leases) hoping for the opposite outcome.
Over the last 4 months, when scheduling my client calls, I’ve joked that “I do all my calls with my tenants in the morning, and I do all the landlord calls in the afternoon. I need to remember which argument to make.”
Even by lawyer standards, it’s rare to see such a equal distribution of misery on both sides of an issue.
[T]here’s no blueprint for how small-business owners should deal with their landlords during an economy-toppling pandemic.
Here’s one option: ignore your landlord and plan on resuming rent payments when sales hopefully improve, and try to not get evicted in the meantime. Another option? Stay current on rent and pray that the economy recovers before you run out of cash.
Neither one of these options are really good, but the tenant doesn’t have any better options. Making matters worse, the Bankruptcy Code isn’t much help, unless the lease assumption statute gets changed, to provide relief to tenants:
One possible solution is that Congress temporarily change bankruptcy law so that small businesses can be allowed to pay their landlords more reasonable amounts until the pandemic is behind us.
Some quick background: Under the Bankruptcy Code, a Chapter 11 debtor can generally stop paying its creditors during the time the case is pending and, even after a plan of reorganization is confirmed, that plan may provide drastically modified (reduced) payments to its creditors.
That’s not the case with landlords, though: Under 11 U.S.C. Section 363 of the Bankruptcy Code, landlords are entitled to demand their full monthly rent due the entire time, and, in order for a lease to be included in a bankruptcy plan, the landlord must be paid current. Long story short, a tenant’s bankruptcy filing is a temporary speed bump for landlords, but the path to payment in full for a landlord is pretty direct.
As a result, many landlords have been aggressive during the pandemic, emboldened by state and federal law. The article mentions that many landlords are starting to see the writing on the wall (and that, maybe, there aren’t any replacement tenants) and are considering “pay what you can” agreements.
States have offered limited help to tenants, in the form of moratoriums on evictions (though such efforts are not reducing or stopping the financial payment obligations for the accruing rent). Plus, deep-pocketed large retailers are cooking up some innovative legal arguments (the article cites Valentino and Victoria’s Secret, but it could have also cited the Nashville lawsuit filed by The Palm Restuarant against the Nashville Hilton).
To the landlord’s defense, the article notes that landlords, themselves, may be small entrepreneurs with mortgages of their own and who depend on the rental income stream. The article advocates for tax cuts for commercial lessors.
Again, the article presents a fairly even-handed consideration of a “no win” situation. If the landlords win, then thousands of small businesses go under in the next 6 months.
The Bar Exam has been canceled (sort of). July is usually bar exam time in Tennessee (as well as all over the country). Like nearly everything else about our lives, the bar exam is going to be drastically different in Tennessee in 2020.
Bad News / Super Good News – The September Bar Exam is canceled. Instead, Tn will be giving an online bar exam Oct 5-6. Protects health of test takers and helps insure the competency of new lawyers. It’s a win win in difficult times. pic.twitter.com/OG73D9K2qj
As a result of this Order, Tennessee bar applicants now–for the first time ever–have the option of taking a private, online exam. As you can see from the responses to the Tennessee Supreme Court Justice’s tweet (really, people?), no decision is going to please everybody.
It’s either too much of a departure from tradition (for the older crowd) or too little of a change to the status quo (for the progressives).
Twitter can be pretty awful.
Speaking of how it’s impossible to make everybody happy. As law firms are trying new models as they pivot into the new world, this tweet spoke to me on a DNA level:
A wise person once said to me that trying to implement change in a large law firm was not like trying to turn the titanic but more like trying to turn a huge flotilla of smaller boats all at the same time… https://t.co/412yihn3tu
This is absolutely true. A law firm is generally full of highly critical (in a good way), smart, risk-adverse know-it-alls (in a bad way). I’ve seen hotly contested arguments about what soda to stock in the law firm kitchen. Good luck with your nimble pivots, managing partners.
Diversity Matters. The past few months have provided eye-opening lessons about privilege and opportunity for so many of us. Especially those in leadership positions at law firms.
In early June, I started to receive all the Black Lives Matters marketing e-blasts, so I know that many law firms recognize the PR benefit of supporting this movement.
But, I also know these law firms and judge them on their actions (as well as their words).
Law firms, what are you doing about diversity? And not just the 2020 associate class. I’m talking about the future years’ classes too. What support are you providing to nurture and provide opportunities to current law students? What about college students from non-privileged backgrounds who want to be lawyers? What about your staff (both present and future)? What educational or institutional policies are you introducing to your practices in response? What are you doing to support the movement in your community?
Separately, am I–personally–doing everything that I can? Are you?
Bankruptcy can be a great practice: (1) a mix of litigation and transactional work, (2) a small and usually friendly bar, (3) interesting statutory and constitutional questions, (4) it's code-based but very unscripted, and (5) when the process works, it can really help people.
Bankruptcies are heating up in the Middle District of Tennessee. Every day, I’m getting calls for representation on a new creditor bankruptcy case filed in Nashville.
Creditors Rights 101 