Tag: Bankruptcy News

Adequate Protection Considerations in the Middle District of Tennessee Bankruptcy Courts

Despite using the same Bankruptcy Code, Bankruptcy Courts often have a broad range of practices on how the exact same statutes can apply.

While most creditors’ lawyers will call any Bankruptcy Court “debtor-friendly,” one way that the Bankruptcy Courts in the Middle District of Tennessee are markedly different than others is the threshold of proof required for creditors to receive “adequate protection” payments from the debtor.

Adequate Protection refers to payments made by the debtor to the creditor, generally, to compensate the creditor for the use of the creditor’s collateral. The statutory precedent is 11 U.S.C. § 361(1), which allows the debtor to make a “cash payment” to the extent that the automatic stay “results in in a decrease in the value of [the creditor’s] interest in the property.” In layman’s terms, if the bankruptcy stay hurts or impairs the value of your collateral, you may be entitled to a cash payment (or an alternate/replacement lien).

In some districts, like the Middle District of Georgia, the Bankruptcy Courts allow the resumption of contract payments to a secured creditor, without a deep analysis of depreciation.

The Middle District of Tennessee takes a different approach. Here, a secured creditor is only entitled to adequate protection in the amount that it can prove depreciation of its lien. So, with a car, the creditor would get compensation for the loss of value from the Debtor’s use of the collateral. (It’s substantially more difficult with real property, where depreciation is may be impossible to prove.)

In order to obtain Court approval and avoid an objection from the U.S. Trustee, the creditor will typically need to hire an appraiser to go look at the vehicle and assess the value and his estimate of how much wear and tear/depreciation is imposed on the car on a monthly basis. Then, the Court would order monthly adequate protection payments in that amount.

As an aside, this practice isn’t for the debtor’s benefit; it’s actually designed to protect unsecured creditors from arbitrary loss of cash/income from the Bankruptcy Estate.

As a creditors attorney operating in the Nashville Bankruptcy Courts, this a conversation I have a lot with outside counsel. It’s a hard lesson to teach, especially when the Courts in their backyard take the opposite approach.

How to Get a Chapter 7 Trustee’s Attention: Show Off Your Stuff on TV

In most cases, Chapter 7 Bankruptcy Trustees have far more cases than they have time to focus on each case. It’s common that there are 30-40 cases on each 2 hour docket.

But, a sure-fire way to stand out and really get the Trustee’s attention is show off your wealth on reality TV. That’s what one cast member of The Real Housewives of New Jersey did, and, now, in her individual Chapter 7, the Trustee’s scrutiny of her disclosures revealed that the debtor failed to disclose all her assets, which may allow the Trustee to contest the discharge under 11 U.S.C. 727.

A bankruptcy discharge wipes out all debt, but the price to be paid for that benefit is that a debtor must disclose everything–both debts and assets. From a creditor’s perspective, a well-informed Trustee can be the last hope for any recovery.

2,500 Employees Laid Off in “Successful” Bankruptcy Reorganization

When talking about big corporate bankruptcy reorganizations, things like “running leaner operations” and “payment in full” (with interest!) to creditors are generally really good things. (Extraordinary things, actually, in Bankruptcy Court.)

But, for the 2,500 employees who are part of the “trimmed” operations of Utah’s Flying J gas stations, the remarkable success of the Bankruptcy is of little comfort. Tennessee based Pilot Travel Centers bought out the assets of Flying J…let’s hope they’re on the market for some people to run the stores.