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Strategies for Creditors in Bankruptcy Proceedings, Seventh Edition by Lynn M. LoPucki Strategies for Creditors in Bankruptcy Proceedings, Seventh Edition by Lynn M. LoPucki

Strategies for Creditors in Bankruptcy Proceedings, Seventh Edition

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Overview

Strategies for Creditors in Bankruptcy Proceedings helps you answer the question, “What should I do?”.

Strategies is not a treatise. This book explains how to play on your client's behalf and win in accord with the rules.

Each of 12 chapters is devoted to the representation of one of three client types—unsecured creditor, secured creditor, or lessor—under one of three chapters of the bankruptcy code—7, 11, or 13—or in the period before bankruptcy.  For a creditor in a particular context, Strategies explains what courses of action should be considered and on what basis to make the decisions.  It identifies potential problems and possible solutions.  Some of the strategies are proactive, others are reactive.  There is also a chapter devoted to representation of an unsecured creditors' committee (see Chapter 11).

Thousands of strategies are explained briefly and distilled into checklists for real-time application.  Some of the strategies are novel, while others are battle-tested and supported by case citations.
Over the course of six editions and nearly 30 annual supplements, strategies have evolved from radical suggestions to commonly used, court-approved techniques.  This book is where the new strategies break into print.

Among other updates, the Seventh Edition of Strategies covers:

  1. the new, small business, subchapter V provisions, which took effect just before the pandemic-induced recession of 2020;
  2. the ever-evolving scope of what courts allow in chapter 11 plans (including nonconsensual third-party releases, consent-inducing “death traps,” and whether appeals of confirmed plans are moot);
  3. the continued vitality of section 546(e) settlement payment protection;
  4. the protection (or not) of the bankruptcy discharge;
  5. the risks of filing a proof of claim and whether a creditor can mitigate them;
  6. the illusory benefit of section 546(c) reclamation rights;
  7. the fraudulent transfer risk in college tuition payments;
  8. and numerous other topics.

Covid-19 will generate a deluge of cases, rule changes, and court opinions.  With annual updates, Strategies for Creditors in Bankruptcy Proceedings provides a unique way to keep abreast of these developments, and strategies for using them to your advantage.

The Table of Cases, the Table of Bankruptcy Code Sections, the Table of Bankruptcy Rules, and the Index have been updated as part of the seventh edition.

Last Updated 11/20/2020
Update Frequency Annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 10086774-7777
Publish Frequency Annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 000000000010071787
Table of Contents

Preface

Chapter 1
INTRODUCTION

§1.01

Strategy in Bankruptcy Practice

§1.02

How to Use This Book

§1.03

The Scope of This Book

§1.04

An Introduction to Bankruptcy

§1.05

Protecting Debtors Through Discharge

§1.06

Providing a Superior Method for Liquidating Assets

§1.07

Preserving “Going Concern” Value

§1.08

Controlling Insolvent Debtors

§1.09

Coordinating the Creditors' Collection Efforts

§1.10

Types of Bankruptcy Cases

§1.11

Liquidation Cases Under Chapter 7

§1.12

Reorganization Cases Under Chapter 11

§1.13

Debt Adjustment Cases Under Chapter 13

§1.14

Involuntary Cases

§1.15

The Bankruptcy Courts

§1.16

The United States Trustee Program

§1.17

Bankruptcy Appeals

§1.18

Sources of Bankruptcy Law

Chapter 2
REPRESENTING UNSECURED CREDITORS IN THE SHADOW OF BANKRUPTCY

§2.01

Scope and Applicability

§2.02

The Need to Anticipate Bankruptcy

§2.03

The Importance of Completing Collection Before Bankruptcy

§2.04

Avoidable Preferences

§2.05

Bargain Transfer Avoidance: Strategic Implications

§2.06

Equitable Subordination: Strategic Implications

§2.07

§522(f) Lien Avoidance: Strategic Implications

§2.08

Involuntary Bankruptcy: Strategic Implications

§2.09

Bringing an Involuntary Case

 

§2.10

Nondischargeability: Strategic Implications

§2.11

The Debtor's Need for Secured Creditors in Bankruptcy

§2.12

The Race Between Collection and Uncollectability

§2.13

Creditor's Route from Default to Collection

§2.14

Debtor's Route from Default to Uncollectability

§2.15

Can This Debtor File for Bankruptcy?

§2.16

Basic Strategy for Collection in the Shadow of Bankruptcy

§2.17

Drafting Other Contracts in the Shadow of Bankruptcy

§2.18

Substituting a Legally Preferred Creditor

Chapter 3
REPRESENTING SECURED CREDITORS IN THE SHADOW OF BANKRUPTCY

§3.01

Scope and Applicability

§3.02

Reasons to Fear Bankruptcy

§3.03

Bankruptcy Benefits to Secured Creditors

§3.04

Basic Strategies in the Shadow of Bankruptcy

§3.05

Preparing Secured Creditors for Bankruptcy

§3.06

Completing the Foreclosure Before Bankruptcy

§3.07

Forcing the Debtor into Bankruptcy

§3.08

Bankruptcy-Proofing the Debtor Corporation

Chapter 4
REPRESENTING LESSORS IN THE SHADOW OF BANKRUPTCY

§4.01

Scope and Applicability

§4.02

The Period Before Bankruptcy

§4.03

The Lessee Files for Bankruptcy—A Worst-Case Scenario

§4.04

Avoiding the Lessee's Bankruptcy

§4.05

Defeating the Trustee's Right to Assume or Reject

§4.06

Preventing the Trustee's Assignment to the Vogons

§4.07

Securing the Lessor's Bankruptcy Claim

§4.08

Avoiding Preference Liability

Chapter 5
INTRODUCTION TO CHAPTER 7 LIQUIDATIONS

§5.01

Eligibility to File Under Chapter 7

§5.02

Nature and Purpose of Chapter 7 Cases

§5.03

Introduction to the Prototype Chapter 7 Case

§5.04

The Decision to File Under Chapter 7

§5.05

The Debtors' Attorney's Fees

§5.06

Filing the Chapter 7 Petition

§5.07

Appointment of the Interim Trustee

§5.08

Separating the “Fresh Start” from the Past

 

§5.09

Determining the Debtors' Exemptions

§5.10

The Meeting of Creditors and Election of a Trustee

§5.11

Avoiding Prefiling Transfers

§5.12

Adversary Proceedings

§5.13

Collecting and Liquidating Property of the Estate

§5.14

The Allowance of Claims

§5.15

Award of Trustee's and Attorney's Fees

§5.16

Distribution to the Creditors

§5.17

Objections to Discharge of the Debtor

§5.18

Objections to Discharge of a Debt

§5.19

Reaffirmation of Secured Debt

§5.20

The Discharge Hearing

§5.21

Closing the Estate

Chapter 6
REPRESENTING UNSECURED CREDITORS UNDER CHAPTER 7

§6.01

Scope and Applicability

§6.02

Treatment of Unsecured Creditors in Chapter 7

§6.03

The Dismal Prospects for Recovery

§6.04

Cases Converted from Other Chapters

§6.05

Filing the Proof of Claim

§6.06

Improving the Prospects for Recovery

§6.07

The Role of the Chapter 7 Trustee

Chapter 7
REPRESENTING SECURED CREDITORS UNDER CHAPTER 7

§7.01

Scope and Applicability

§7.02

Treatment of Secured Creditors in Chapter 7

§7.03

The Role of the Chapter 7 Trustee

§7.04

Evaluating the Secured Creditor's Position

§7.05

Filing the Proof of Claim

§7.06

Reaffirmation Agreements

§7.07

Recovering Possession of the Collateral

§7.08

Permitting the Trustee to Liquidate

§7.09

Strategies for the Oversecured Creditor

§7.10

Strategies for the Undersecured Creditor

§7.11

Strategies for the Marginally Secured Creditor

Chapter 8
REPRESENTING LESSORS UNDER CHAPTER 7

§8.01

Scope and Applicability

§8.02

Treatment of Lessors in Chapter 7

§8.03

Nature and Purpose of the Automatic Stay

 

§8.04

Lifting the Automatic Stay

§8.05

Filing the Proof of Claim

§8.06

Obtaining “Rent” Payments During the Case

§8.07

The Trustee's Rights of Assumption and Assignment

§8.08

Opposing Assumption and Assignment

§8.09

Rejection of the Lease

§8.10

Regaining Possession from the Trustee

§8.11

Regaining Possession from the Debtor

Chapter 9
INTRODUCTION TO CHAPTER 11 REORGANIZATIONS

§9.01

How to Use This Chapter

§9.02

Purposes of Chapter 11

§9.03

The Financial Conditions That Lead to Chapter 11

§9.04

Filing the Chapter 11 Petition

§9.05

Obtaining the Right to Use “Cash Collateral”

§9.06

Appointment of the Creditors' Committee

§9.07

Lifting the Stay

§9.08

Organizing the Creditors' Committee

§9.09

The Meeting of Creditors

§9.10

The Debtor's Exclusive Filing Period

§9.11

The Plan of Reorganization

§9.12

The Disclosure Statement

§9.13

Confirmation of a Plan

§9.14

Award of Attorney's Fees Under Chapter 11

§9.15

Deposit and Distribution Under the Plan

§9.16

Failure to Comply with the Plan

§9.17

Small Businesses in Chapter 11

Chapter 10
REPRESENTING UNSECURED CREDITORS UNDER CHAPTER 11

§10.01

Scope and Applicability

§10.02

Treatment of Unsecured Creditors in Chapter 11

§10.03

Evaluating the Unsecured Creditor's Position

§10.04

Filing the Proof of Claim

§10.05

Liquidating the Claim

§10.06

Consolidating Representation

§10.07

The Business of the Committee

§10.08

Becoming the Attorney for the Creditors' Committee

§10.09

After the Attorney Is Appointed

§10.10

Evaluating a Proposed §363 Sale

§10.11

Evaluating a Proposed Plan

§10.12

Postconfirmation Strategy

 

Chapter 11
REPRESENTING THE UNSECURED CREDITORS' COMMITTEE

§11.01

Scope and Applicability

§11.02

A Checklist on Entering the Case

§11.03

Evaluating the Unsecured Creditors' Position

§11.04

Postpetition Financing

§11.05

Opposing the Petition: Bad Faith, Dismissals, and Refiling

§11.06

The Ambiguous Role of the Debtor's Attorney

§11.07

Moving the Case

§11.08

Evaluating a Proposed §363 Sale

§11.09

Proposing a Committee Plan

§11.10

Forcing a Change in Management

§11.11

Bargaining for a Plan

§11.12

Evaluating a Proposed Plan

§11.13

The Confirmation Process

§11.14

Postconfirmation Strategy

Chapter 12
REPRESENTING SECURED CREDITORS UNDER CHAPTER 11

§12.01

Scope and Applicability

§12.02

Treatment of Secured Creditors in Chapter 11

§12.03

Evaluating the Secured Creditor's Position

§12.04

Protecting Cash Collateral

§12.05

Opposing the Petition: Bad Faith, Dismissals, and Refilings

§12.06

Obtaining Payments During the Chapter 11 Case

§12.07

Filing the Proof of Claim

§12.08

Strategies for the Oversecured Creditor

§12.09

Strategies for the Undersecured Creditor

§12.10

Strategies for the Marginally Secured Creditor

§12.11

Moving the Case

§12.12

Asset Sales Under §363

§12.13

Evaluating a Proposed Plan

§12.14

Disclosure

§12.15

Opposing Confirmation of a Plan

§12.16

Postconfirmation Strategy

Chapter 13
REPRESENTING LESSORS UNDER CHAPTER 11

§13.01

Scope and Applicability

§13.02

Treatment of Lessors in Chapter 11

§13.03

Nature and Purpose of the Automatic Stay

§13.04

Lifting the Automatic Stay

§13.05

Filing the Proof of Claim

 

§13.06

Obtaining “Rent” Payments During the Case

§13.07

The Debtor's Rights of Assumption and Assignment

§13.08

Opposing Assumption and Assignment

§13.09

Rejection of the Lease

§13.10

Regaining Possession from the Debtor-in-Possession

Chapter 14
INTRODUCTION TO CHAPTER 13 DEBT ADJUSTMENTS

§14.01

How to Use This Chapter

§14.02

Eligibility to File Under Chapter 13

§14.03

Nature and Purpose of Chapter 13 Cases

§14.04

The Prototype Chapter 13 Case

§14.05

Budgeting for Chapter 13

§14.06

Drafting the Chapter 13 Plan

§14.07

Filing the Chapter 13 Petition

§14.08

Providing Notice to Creditors

§14.09

The Chapter 13 Trustee

§14.10

The Meeting of Creditors

§14.11

The Confirmation Hearing

§14.12

While the Plan Is in Effect

§14.13

What if the Debtor Doesn't Pay?

§14.14

The Discharge

Chapter 15
REPRESENTING UNSECURED CREDITORS UNDER CHAPTER 13

§15.01

Scope and Applicability

§15.02

Treatment of Unsecured Creditors in Chapter 13

§15.03

Evaluating the Proposed Plan

§15.04

Role of the Chapter 13 Trustee

§15.05

Improving the Prospects for Recovery

§15.06

Filing the Proof of Claim

§15.07

Pursuing the Claim After Default

Chapter 16
REPRESENTING SECURED CREDITORS UNDER CHAPTER 13

§16.01

Scope and Applicability

§16.02

Treatment of Secured Creditors in Chapter 13

§16.03

Controlling Bad Faith and Successive Filings

§16.04

Evaluating the Secured Creditor's Position

§16.05

Purpose and Effect of the Automatic Stays

§16.06

Obtaining a Copy of the Plan

§16.07

Filing the Proof of Claim

§16.08

Evaluating the Debtor's Proposed Plan

 

§16.09

Acceptance or Rejection of the Plan

§16.10

Opposing Confirmation of a Plan

§16.11

Assistance from the Chapter 13 Trustee

§16.12

Pursuing the Claim After Default

Chapter 17
REPRESENTING LESSORS UNDER CHAPTER 13

§17.01

Scope and Applicability

§17.02

Treatment of Lessors in Chapter 13

§17.03

Nature and Purpose of the Automatic Stay

§17.04

Lifting the Automatic Stay

§17.05

Filing the Proof of Claim

§17.06

Obtaining “Rent” Payments During the Case

§17.07

The Debtor's Rights of Assumption and Assignment

§17.08

Opposing Assumption and Assignment

§17.09

Rejection of the Lease

§17.10

Regaining Possession from the Debtor

§17.11

After the Debtor Defaults

Table of Cases

Table of Bankruptcy Code Sections

Table of Bankruptcy Rules

Index

About The Experts
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