Assignments For The Benefit Of Creditors - A Bankruptcy Alternative
|Date / Time:
This webinar provides an understanding of general assignments and how to recognize when the use of an assignment may be advantageous versus the debtor turning to a liquidation under chapter 7 of the bankruptcy code.
Basics of What Is an Assignment for the Benefit of Creditors
Impact of Secured Claims on Assignment
- Nature of the Assignment Contract
- Court Supervised vs. Statutory or Common Law Assignments
- How Is the Assignee Chosen; Who Can Serve as the Assignee
- Rights and Duties of the Assignee
- Assets Transferred
- Responsibility for Creditor Claims
- Filing of Claims by Creditors (Bar Dates, Requirement to File Claim to Share in Distributions to Creditors)
Creditor Alternatives to the Assignment
- Validating Secured Creditor Claims
- Priority of Competing Security Interests Including That of the Assignee
- Rights of Other Creditors Including Federal Government Claims and Trust Fund Claims
- Priority of Creditor Claims (State and Local Taxes, Employee Wage Claims, Customer Deposits, Etc.)
Other Creditor Remedies
- Involuntary Bankruptcy
- Abstention Under Bankruptcy Code Section 305
- Mandatory Dismissal Under Bankruptcy Code Section 542
Benefits and Advantages of Assignments to Bankruptcy
- Choice of Creditor Representatives Under Selected State Laws
Disadvantages of Assignments
- Flexibility of the Process (State Dependent)
- Speed With Which the Assignee Can Liquidate Assets
- Lack of Court Involvement (State Dependent)
- Assignee Has the Rights of a Lien Creditor Under Uniform Commercial Code
Recovery of Preferential Transfers Under State Law and Preemption Issues
- No Court Supervision (State Dependent)
- Creditors Have No Say in Choice of Assignee
- Limited Recourse Against Assignee for Breach of Fiduciary Duty in Administering the Assignment Estate
- Inability to Limit the Impact of Ipso Facto Clauses in Contracts (as Distinguished From Bankruptcy Where Those Clauses Are Void)
About The Presenter
- State Law Recovery Statutes
- Need to Show Intent to Prefer
- Impact of Sherwood Partners v. Lycos Case and Case Law That Has Followed Limiting That Decision
Geoffrey L. Berman
- Senior managing director of Development Specialists, Inc.
- Former president and chairman of the Board of the American Bankruptcy Institute and member of ABI's Board of Directors, Executive Committee and Management Committee (April 2010-2014)
- Ex-officio member of the ABI Commission for the Study of Reform of Chapter 11 (report released in December 2014)
- More than 35 years of experience in the administration of assignment estates around the country
- Wrote numerous articles on general assignments, including the ABI publication "General Assignments for the Benefit of Creditors, the ABCs of ABCs," 3rd edition, September 2015; co-wrote an article for the St. John's University Law School Law Review proposing a Model Statutory Scheme for general assignments, 2009
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