Players’ in the Insolvency Arena
There are many “players” in the insolvency field, each requiring counsel with the skill to identify and prioritize the special issues impacting their client and the experience to implement creative solutions to difficult problems. Gary Marks devotes his practice to federal bankruptcy and New Jersey insolvency matters. During his 40-year career, Gary’s clients have included the following:
Debtors and Assignors
The notion of granting debtors relief or “discharge” from their debts can be traced back to ancient Hebrew society where the Old Testament decrees that all debts should be forgiven every seven years. Indeed, the idea was embodied in the U.S. Constitution when the Framers expressly empowered Congress to “enact uniform laws on the subject of Bankruptcies ….” Today’s insolvency laws, the federal Bankruptcy Code and New Jersey’s ABC law, carry forth this theme into our modern commercial society. However, these are complex statutes requiring assistance from skilled counsel. Gary Marks has represented countless financially distressed companies and individuals seeking reorganization or a “fresh start.” If your company or you individually are experiencing financial difficulty, contact us for a free consultation.
Trustees and Assignees
Bankruptcy trustees and assignees under the ABC law are fiduciaries entrusted with collecting debtor assets, liquidating those assets, and distributing the proceeds among creditors pro rata. Among the many powers they have are the “clawback” or avoidance powers that enable them to recover preference payments and fraudulent transfers for the benefit of all creditors. Gary has extensive experience representing bankruptcy trustees and serving as assignee for the benefit of creditors for companies in many different service and manufacturing industries. Especially if you are considering the filing of an ABC for your business, you should contact us for a free consultation.
Creditors’ Committees
Creditors’ committees are appointed by the United States Trustee in many Chapter 11 cases. A committee is composed of at least three of the largest unsecured creditors willing to serve and, once formed, will have a significant say in the manner and method that the debtor employs in reorganizing or liquidating its business. Members of the committee are fiduciaries who serve the interests of all unsecured creditors in the case. If you are a creditor in a Chapter 11 case and wish to serve on the creditors’ committee, you need to attend the creditors’ committee formation meeting, usually scheduled in the first few weeks of the case. Gary can assist creditors in preparing for and accompanying you to the meeting. In appropriate cases, he can also be retained to represent the committee in the proceeding and negotiate a fair settlement for creditors. Contact us for a free consultation.
Secured Creditors
Secured creditors and borrowers have a symbiotic relationship until a bankruptcy is filed, at which time the relationship often breaks down. The borrower, now a debtor, needs to use the secured creditor’s collateral (business assets or a home) and the secured creditor wants to liquidate its collateral to pay down or pay off the underlying debt. Bankruptcy concepts such as the “automatic stay,” “adequate protection” and “effective reorganization” come into play and will dictate whether and under what circumstances the debtor will be allowed to use the secured creditor’s collateral while it works through its financial problems. These are complex issues under the Bankruptcy Code requiring the assistance of a seasoned bankruptcy practitioner. If you are a secured creditor, contact us for a free consultation.
Landlords and Equipment Lessors
In bankruptcy, debtors have the right to assume or reject leases, whatever is in their best business judgment. Nonetheless, landlords and equipment lessors are granted significant rights under the Bankruptcy Code, especially since recent revisions to the law. Often, they hold significant leverage in a Chapter 11 case, but timing is everything. In an ABC proceeding, the New Jersey statute grants landlords a lien on certain assets to secure payment of delinquent rent. Learn when and how to exercise your rights under the Bankruptcy Code and ABC statute by contacting us for a free consultation.
Labor Unions
After the Supreme Court’s Bildisco case in 1984, Chapter 11 debtors could reject a collective bargaining agreement simply by showing that in its business judgment it was a burdensome contract ― a very low bar for debtors. Labor was so incensed with the decision that Congress quickly amended the Bankruptcy Code, making it much more difficult for debtors to walk away from union contracts. Gary’s familiarity with these issues derives from the fact that his former partner argued the Bildisco case on the debtor’s behalf before the Supreme Court. In addition to protecting union contracts, the Bankruptcy Code grants claims for employee wages and benefits a priority compared to other creditors. Contact us for further information.
Municipalities
There are important safeguards for municipalities when a property owner files a bankruptcy petition. In New Jersey, any claim against real property for unpaid property taxes is a secured claim in bankruptcy and must be paid in full, or, if the debtor is unable to pay, the town can petition for relief from the automatic stay so that foreclosure can commence. Counsel is required to enforce these rights. Also, a little-used provision of the Bankruptcy Code allows debtors and trustees in certain circumstances to pursue real estate tax appeals, not before the County Board of Taxation or New Jersey Tax Court, but in the Bankruptcy Court, potentially a friendlier forum for the debtor and its creditors. Municipal counsel can contact us for a free consultation on these issues.