Uncharted Waters: Navigating Governmental Entities Creditor s Rights in Bankruptcy Cases By Edmund S. Whitson, III 1 and Nicole C.

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1 Uncharted Waters: Navigating Governmental Entities Creditor s Rights in Bankruptcy Cases By Edmund S. Whitson, III 1 and Nicole C. Nate 2 1 Mr. Whitson is a shareholder at Anthony & Partners. He has more than 19 years of experience representing creditors almost exclusively, including banks, insurance companies and similar financial institutions. His work has consisted of protecting creditors rights in bankruptcy proceedings, in addition to enforcing remedies in state courts in various jurisdictions such as Florida, Delaware, Wisconsin and South Carolina. Mr. Whitson is also one of the few attorneys in the nation to represent a debtor in a Chapter 9 bankruptcy case. Mr. Whitson graduated from the University of Virginia in 1985 with a degree in Commerce, and earned his law degree, cum laude, from the University of Florida in Ms. Nate is an attorney at Bryant Miller Olive, P.A. She focuses her practice on local government representation, bankruptcy and creditors rights, and public finance. Ms. Nate has successfully defended multiple types of governmental entities as creditors in Chapter 7, Chapter 11 and Chapter 13 bankruptcies. Ms. Nate graduated from the University of Central Florida in 2006, cum laude, and received her law degree from Stetson University in 2009, cum laude. She is the Co-chair of the Clearwater Bar Association s Local Government Law Section and is a member of the Florida Bar s City, County, and Local Government Law Section.

2 I. Setting Sail the Bankruptcy Case Begins. a. The filing of a petition for bankruptcy begins the Bankruptcy case. Upon filing, an order for relief as that term is used throughout the Bankruptcy Code, is issued. b. All bankruptcy courts utilize the federal case management and filing system known as CM/ECF. In order for an attorney to appear in a bankruptcy case, he or she must register to use CM/ECF with the Clerk of Court. PRACTICE TIP: Immediately upon receiving notice that your client has been named in a bankruptcy petition, check CM/ECF s deadlines/hearing page and file a notice of appearance/request for notice. The deadlines/hearing page will give you a snapshot of all due dates that have been set and links to documents. By filing a notice of appearance/request for notice, you will ensure that you will receive copies of all papers, pleadings, and orders filed in the case including those items which can be granted by negative notice. 3 While many items may be required to be served by mail, appearing via CM/ECF ensures that you will receive notice immediately. II. All Aboard the Meeting of Creditors. a. All creditors holding a consumer debt and the U.S. Trustee can examine the Debtor under oath at the meeting of creditors. Notice of the meeting of creditors will be issued by a Court order. PRACTICE TIP: Whether to attend the meeting of creditors is typically more of an economic decision. Most creditors do not attend unless they have specific questions for the Debtor related to the Debtor s schedules, fraud, or to conduct investigation into the Debtor s finances. Attending the meeting of creditors is not a condition precedent to raising defenses or claims in the case. 3 Items which may be granted upon negative notice are prescribed by local rules. Essentially, such relief may be granted by the Court without a hearing or any further action if no party objects within 20 days of service.

3 III. Whoa, Matey! the Automatic Stay a. Filing bankruptcy petition triggers an automatic stay of any collection of debts against the Debtor. b. Actions taken against the Debtor in violation of the automatic stay are void and may expose the creditor to damages. Willful violations may also create exposure to additional damages including attorney s fees and costs. c. The automatic stay applies to: i. The commencement or continuation of a judicial or administrative action that was or could have been commenced before the case. ii. The enforcement against the Debtor or property of the estate of a judgment obtained before the case. iii. Any act to obtain possession of property of the estate. iv. Acts to create, perfect, or enforce liens against property of the estate or the Debtor. v. Any act to collect a claim against the Debtor that arose before the case. d. The automatic stay does not apply to: i. The commencement or continuation of an action by the government to enforce police or regulatory power. PRACTICE TIP: Watch for hybrid situations such as code enforcement and condemnation, which are permissible to pursue as a police power, but may lead to a fine which cannot be imposed on debtors while the stay is in place. See e.g. In re Nease, 391 B.R. 470 (Bankr. M.D. Fla. 2008); see also In re St. Pete Beach Properties (Case No. 8:12-bk-1037 Bankr. M.D. Fla. 2012). Also, watch for code enforcement violations in which a fine has already been imposed pre-petition, but has not yet been recorded as a lien.

4 ii. The enforcement of a judgment other than a money judgment obtained in a proceeding by a governmental unit to enforce police or regulatory power. iii. An audit by government to determine tax liability; the issuance by a governmental unit of a notice of tax deficiency, a demand for tax returns, the making of an assessment for any tax and issuance of a notice and demand for payment of such an assessment. iv. Any act by the Debtor s landlord for a non-residential real property lease to obtain possession of such property. v. The creation or perfection of a statutory lien for ad valorem property tax or special tax or special assessment (whether or not ad valorem) imposed by a governmental unit, if such tax comes due after the filing of the case. PRACTICE TIP: While the creation or perfection of ad valorem taxes is permissible, issuance of tax warrants or the sale of tax certificates would violate the automatic stay. e. Duration of the stay: i. For actions related to property of the bankruptcy estate, the stay continues until the property has been disposed of or is no longer part of the estate. ii. For any other actions covered by the stay, it continues until the case is closed; dismissed or the individual is granted or denied a discharge, whichever occurs first. PRACTICE TIP: A creditor can move for relief from the automatic stay before it expires by filing a motion for relief from stay with the Court. The Court can grant such motions when there is a lack of adequate protection, or when the Debtor does not have equity in the property and the property is not necessary for effective reorganization.

5 IV. Protect your booty - filing a Proof of Claim. a. A proof of claim is prima facie proof of amounts owed to the creditor, whether or not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; and including equitable remedies for breach of performance if such breach gives rise to a right to payment. PRACTICE TIP: When determining whether a governmental entity has a claim, look for any past due revenue to the entity such as charges for services (utilities, garbage collection, water service, fire protection), ad valorem revenues, non-ad valorem assessments (special assessments), sales and use taxes, surtaxes and local option taxes, licenses and permit fees, fines and forfeitures, and utility taxes. PRACTICE TIP: If a claim is unsecured, a proof of claim must be filed. If the claim is secured and the amount is undisputed, a proof of claim need not be filed. Read the Debtor s schedules carefully to ensure that they do not note the amount listed as disputed or that it may be disputed. b. A proof of claim may be executed by the creditor s representative (including attorneys) and is then filed with the Clerk of Court. PRACTICE TIP: Many jurisdictions require that a proof of claim be submitted electronically, either through the Court s website or the CM/ECF system unless you meet an exception to be able to submit a mailed copy. c. Governmental entities have 180 days from the date the case was filed to file a proof of claim. PRACTICE TIP: Late filed claims are only allowed for excusable neglect. However, this time may be extended and timely filed claims may be amended by motion. Also, it is not uncommon to receive an order from the Court instructing creditors not to file a proof of claim. This means that the case is an insufficient asset case. Under Rule 2002(e), the Court will instruct creditors to file a proof of claim if assets become available and will prescribe the timeframe to do so.

6 V. Charting the Course The Different Chapters of the Bankruptcy Code Available to Debtors a. Chapter 7. Liquidation. A Chapter 7 panel trustee is appointed to liquidate all property of the Debtor. Any property that is of value and is not exempt is sold by the trustee to pay the creditors. The Debtor receives a discharge of pre-petition debt unless such debt is non-dischargeable, is not listed on the Debtor s schedules, or if the Debtor has committed fraud. Creditor claims are paid pursuant to specific requirements of 724 and 726 of the Bankruptcy Code. PRACTICE TIP: In a Chapter 7 bankruptcy, secured claims are generally paid first, followed by administrative claims, unsecured priority claims, and general unsecured claims. However, watch for treatment of ad valorem tax claims under 724 as well as whether a secured claims is undersecured that is, the amount of the claim exceeds the value of the collateral. A claim is only secured up to the value of the collateral. Priority of secured claims is determined by state law. PRACTICE TIP: If property is exempt from the bankruptcy estate under Florida law, such as homestead property, then the Trustee will not liquidate the property. Any claims secured by that property will remain on the property and can be enforeced in rem upon a discharge or dismissal, which ever occurs first. PRACTICE TIP: A Chapter 7 discharge only relieves the Debtor of personal liability for the debt. It does not automatically discharge a lien. b. Chapter 9. Adjustment of debts of a Municipality (which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts) c. Chapter 11. Reorganization. Although primarily utilized by businesses, it may be used by individuals under certain circumstances; such as when the Debtor has no regular income. The Debtor retains control of its assets and reorganizes its affairs pursuant to a Plan of Reorganization, which must be either approved by or crammed down over the creditors.

7 PRACTICE TIP: Read the Plan of Reorganization very carefully and in its entirety. Not only does the plan provide for how each claim will be paid, but may also affect other matters such as releases of liability of the Debtor and its principles. Some debtors have even tried to alter zoning or special exceptions applied to their property. In re Union Golf of Florida, Inc., 242 B.R. 51 (Bankr. M.D. Fla. 1998). d. Chapter 12. Adjustment of debts of family farmers or fisherman. Applies only to qualifying family farmers or fisherman with regular annual income. e. Chapter 13. Adjustment of debts of individuals with regular income. Only available to individuals or d/b/a s with regular income that owes less than $250,000 in noncontingent, liquidated, unsecured debts and less than $750,000 in noncontingent, liquidated, secured debts as of the date of filing. Spouses filing together must have less than $250,000 in unsecured debts and $350,000 in secured debts as of the date of filing. The Debtor pays its creditors pursuant to a payment plan for up to 5 years. VI. Other squalls to watch out for: a. Motions to avoid your client s lien. i. A Debtor may try to avoid a lien, or strip it from its collateral, through the bankruptcy process. Only certain statutory and judgment liens may be avoided by the bankruptcy court as provided in 11 U.S.C. 545 and 522. b. Motions for sale of property free and clear of liens. i. The Debtor or trustee may seek to sell property of the estate free and clear of all liens. This is done by motion, but only applies if the conditions of 11 U.S.C. 363(f) are met. PRACTICE TIP: Watch for language that may attempt to wipe out your client s interest even if such interest is not a lien. For example, in addition to liens, such motions may try to include language that the property be sold free and clear of any and all claims, encumbrances, interest, and any other claims of right in the property.

8 c. Nuances related to set-offs. i. 11 U.S.C. 553 preserves a creditor s right to offset mutual debts with the Debtor under common law or state statutory law (referred to as a set off ). This may include pre-petition obligations of the Debtor being setoff against pre-petition monies owed to the Debtor, or post-petition obligations of the Debtor against post-petition monies owed to the Debtor. PRACTICE TIP: Debtors and creditors may wish to reduce the amount owed to a creditor by setoff. However, the setoff must be approved by the Court and the creditor must get relief from the automatic stay to avoid the creditor from potentially having to pay the amount of the setoff into the bankruptcy estate. Also, timing is an important factor to the obligations. d. Adequate protection payments to utilities. i. Utility providers are given special rights to demand adequate assurance payments from a debtor for services that will be provided post-petition. If the Debtor fails to furnish adequate assurance of payment within 20 days, the utility may shut-off the utility s. In Chapter 11 cases, the Debtor has 30 days to furnish such assurance, but the assurance must be acceptable to the utility. PRACTICE TIP: Demand adequate assurance as soon as practicable after the case has been filed. If the utility does not demand any adequate assurance and continues to provide service beyond the timeframes set forth above, the Debtor will likely consider no assurance to be adequate and the utility could be prevented from discontinuing service without a further order from the Court.

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