NASSAU ACADEMY OF LAW DEAN S HOUR THE TOP 10 DO S & DON TS OF BUSINESS BANKRUPTCY CASES MONDAY, JULY 25, 2011 15TH & WEST STREETS MINEOLA, NEW YORK 11501 516.747.4464
Nassau County Bar Association-Nassau Academy of Law The Top 10 Dos & Don'ts Of Business Bankruptcy Cases July 25, 2011 12:30p.m.-2:00 p.m. Presenters: The Honorable Alan S. Trust Martin J. Goldstein, Esq. Nicole D. Mignone, Esq. The Honorable Robert E. Grossman Catherine Christensen Cozzette, Esq. Lynn Ryan, Esq. Alfred M. Dimino, Esq., Office of the U.S. Trustee Topics Covered: 1. Deadlines applicable to small business cases. 2. Bar date Orders. 3. Retention Applications. 4. Proposed Orders confirming a plan. 5. Cash collateral orders. 6. Section 363 sales. 7. First day motions and orders. 8. Disclosure statements. 9. Fee applications and proposed orders. 10. Designation as a small business case. Top 10 Dos and Don ts of Business Bankruptcies
#1 DO keep in mind the deadlines applicable to small business cases regarding the plan process. See Darby General Contracting, Inc. d/b/a Darby Glass Company, 08-74755, Decision, dated Aug. 14, 2009 (Judge Trust). #2 DO submit a proposed bar order as soon as practicable after the case is filed. It is difficult, if not impossible, to approve a disclosure statement without a full understanding of the universe of claims in the case. The actual universe of claims to be paid through the plan may differ greatly from the creditors listed in the debtor s schedules and the disclosure statement and plan must reflect this reality. #3 DO file a certification of ballots at least seven days prior to the confirmation hearing in compliance with E.D.N.Y. LBR 3018-1, or within such time as fixed by the Court. #4 DON T include separate findings for each subsection of section 1129 in the proposed order confirming the plan. Avoid lengthy confirmation order whenever possible. Also, the proposed confirmation order should not contain terms which are inconsistent with the Plan unless the Plan was modified at the hearing. #5 DO review the Bankruptcy Court s guidelines and E.D.N.Y. LBR 4001-5 for financing motions. Keep in mind the different requirements for interim and final cash collateral orders. The purpose of an interim cash collateral order differs from a final order, and an interim cash collateral order should not include extensive findings by the Court and should contain limited authorization for the payment of officers and insiders of the debtor. The proposed cash collateral order should not contain provisions or findings which are binding on a subsequently appointed Chapter 7 trustee. #6 DO obtain prior approval of the notice and bidding requirements prior to scheduling a hearing to approve a Section 363 sale. Also review the Bankruptcy Court s Sale guidelines. #7 DO review the Bankruptcy Court s guidelines to determine whether a request for a first day order is appropriate. Prior to or simultaneous with filing a first day motion, debtor s counsel should always consult with the Office of the United States Trustee, and notify the Judge s Courtroom Deputy that first day motions are being filed. #8 DON T file a disclosure statement without financial projections, or propose a five-year plan with only three years of financial projections. #9 DO make lengthy/multiple fee applications easy to follow. Include a chart or description of previous fee requests, previous awards and holdbacks, the amount of the retainers, and references to docket numbers to assist the Court s review of the fee requests. DON T submit the form order used by the Bankruptcy Court for the Southern District of New York, which is not compatible with ECF submission of orders. DO comply with U.S.
Trustee guidelines for fee requests. #10 DO designate in the petition whether the case is a small business bankruptcy case. If the debtor is improperly designated, the U.S. Trustee or creditor may object to the debtor s designation pursuant to Rule 1020(b). See In re Display Group, Inc., 10-75502, Decision, dated Nov. 16, 2010 (Judge Trust). Practice Pointers Use online resources. Refer to the Court s website at www.nyeb.uscourts.gov for opinions by the Judges, forms and guidelines. The Court s website contains a wealth of information and a comprehensive set of guidelines for filing motions and applications in cases before the Court. The Court s website also contains a hyperlink to several other useful websites, including the U.S. Trustee s website, which is located at www.justice.gov/ust/. The U.S. Trustee s website contains its guidelines for preparing fee applications and other relevant information regarding the administration of bankruptcy cases in this District. Don t make your emergency the Court s emergency. If the emergency is created by inaction or delay on the part of the client or the law firm, the Court may not consider this as grounds for expedited relief. Refer to docket numbers in motions and proposed orders, especially in large or complicated cases. File red-line versions of amended cash collateral orders, plans and disclosure statements for the Court s review. Submit your retention application and affidavit at the beginning of the case. Proposed orders must be submitted in ECF, separate from the docketing process. Do not submit a proposed order more than once, and do not include a signature line. Make sure that there is sufficient room (2 inches) at the bottom of the last page for the Court to affix the Judge s signature. Don t wait until the last minute to submit a proposed order to the Court to review - this could preclude entry of essential orders on a timely basis. If you do wait until the last minute to submit a proposed order, do not call Chambers to ask why your order has not been signed yet. Don t assume that a creditor has filed a claim in the case. Review the claims register and the schedules when determining the amount and existence of claims in each case prior to preparing the disclosure statement.
David A. Blansky is a partner at LaMonica Herbst & Maniscalco, LLP (the Firm ). By the time David graduated law school, he had already clerked at the Massachusetts Superior Court, assisted in the denaturalization and deportation of Nazi war criminals residing in the United States while serving at the Department of Justice Office of Special Investigations, litigated numerous criminal cases as a public defender in New Mexico, and worked on a variety of contract, copyright, trademark, and communications issues at National Public Radio's Office of the General Counsel. After graduation from law school, David worked as an Assistant District Attorney in Nassau County for nearly four years, prosecuting a variety of petty and felony crimes. Prior to joining the Firm, David worked at the Law Offices of David J. Sutton, P.C., as an associate, where his primary areas of practice were general and commercial litigation. David joined the Firm as an associate in March 2004 and was made a partner in March 2007. Education J.D., Northeastern University School of Law, 1997 B.A., The American University, 1994 Honors & Affiliations Chair of the Bankruptcy Law Committee of the Nassau County Bar Association (2010-2012 term). Focus editor of the July/August 2010 issue of The Nassau Lawyer, the journal of the Nassau County Bar Association. Frequent lecturer for the Credit Abuse Resistance Education Program of the Nassau County Bar Association and on a variety of topics, including trial practice skills, bankruptcy law and judgment enforcement. Active Member of the Nassau County Bar Association s Mortgage Foreclosure Task Force and participant in the Nassau County Bar Association s Mortgage Foreclosure Clinic. Bar Admissions Courts of the State of New York United States District Court for the Eastern and Southern Districts of New York United States Court of Appeals for the Second Circuit United States Supreme Court Professional Associations Nassau County Bar Association New York State Bar Association New York State Academy of Trial Lawyers Former District Attorneys Association of Nassau County American Bankruptcy Institute Reported Cases In re Singh, 2010 WL 2853749 (Bankr.E.D.N.Y. Jul 20, 2010) In re DeVanzo, 2010 WL 1780038 (Bankr.E.D.N.Y. May 03, 2010) U.S. ex rel. Miller Proctor Nickolas, Inc. v. Lumbermens Mut. Cas. Co., 2009 WL 962273 (E.D.N.Y. Mar 31, 2009) In re Parker, 399 B.R. 577 (Bankr.E.D.N.Y. Jan 27, 2009) In re Jacobs, 394 B.R. 646 (Bankr.E.D.N.Y. Aug 26, 2008) In re Verma, 2007 WL 2713017 (Bankr.E.D.N.Y. Sep 14, 2007) In re Ellenhorn, 2005 U.S. Dist. LEXIS 43269 (E.D.N.Y. Aug 23, 2005) Noteworthy David has been awarded an excellent rating of 10/10 by Avvo.com. LaMonica Herbst & Maniscalco, LLP 3305 Jerusalem Ave., Suite 201 Wantagh, New York 11793 Tel: (516) 826-6500; Fax: (516) 826-0222 dab@lhmlawfirm.com
Robert E. Grossman A graduate of Rider University, Robert E. Grossman earned his J.D. in 1973 from Brooklyn Law School. He began his legal career at the Securities and Exchange Commission in the Division of Enforcement in a group associated with the Division of Corporate Finance. After leaving the SEC, Judge Grossman founded and served as general counsel to a large financial services company that focused on acquiring and operating distressed assets. Most recently, Judge Grossman practiced in the area of corporate law, business reorganization and litigation at Duane Morris. A significant part of his practice focused on providing advice to troubled or newly restructured companies, and investors, with respect to the financing needs of such companies. Judge Grossman has extensive experience in complex bankruptcy and creditor rights litigation for both individuals and institutions and has represented parties in the restructuring and transfer of assets in the bankruptcy court. Experienced in the intricacies of bankruptcy and restructuring matters across a wide range of industries, including real estate and healthcare, he represented borrowers, secured creditors, landlords and owners across the United States. Prior to joining Duane Morris, Judge Grossman was the chair of the restructuring practice group at Arent Fox, directing almost 20 professionals in matters across the United States and in Europe. Judge Grossman is an adjunct professor at Touro Law School. He is also a past Chair of the International Secured Transactions and Insolvency Committee of the American Bar Association, Section of International Law and is a frequent speaker both in the United States and Europe. In addition, Judge Grossman was the past president of the Brooklyn Law School Alumni Association. Courtroom Deputy: Madrie Tagle Law Clerks: Lynn Ryan, Catherine Cozzette, Elena Gonzalez
THE HONORABLE ALAN S. TRUST United States Bankruptcy Judge for the Eastern District of New York The Honorable Alan S. Trust ascended to the bench on April 2, 2008, and sits in the Eastern District of New York. He is an adjunct professor of law at the St. John s University School of Law. Judge Trust is Chair-Elect of the Bankruptcy Law Section of the Federal Bar Association and is a member of the Board of Directors of that Section. He is also a member of the Board of Directors of the Eastern District of New York Chapter of the Federal Bar Association. He is a member of the Editorial Board of the American Bankruptcy Institute Journal, and is a contributing editor to the Journal. He is also a member of the American Bankruptcy Institute and the National Conference of Bankruptcy Judges. Judge Trust has been a frequent speaker and author for numerous CLE events and seminars, addressing bankruptcy and real property issues. He is a trained mediator, and has been instrumental in the creation of a Pro Bono Mediation Pilot Program adopted by the Bankruptcy Court for Eastern District of New York. Judge Trust has also served on many local, state and national bar organizations, including American Bar Association title insurance and real property committees, and Dallas Bar Association fee disputes and ethics committees. Judge Trust attended Syracuse University, graduating summa cum laude in 1981, and as a member of Phi Beta Kappa. He attended New York University School of Law, where he served on the Law Review from 1982-83. Judge Trust graduated with a JD degree cum laude in 1984. After graduation, he relocated to Dallas, Texas to begin his law practice. Judge Trust opened his own law firm (Trust.Law.Firm, P.C.) in December 1995, and managed that firm until appointed to the bench.