Bankruptcy and insolvency issues -- whether they arise in connection with the initial documentation of a loan, the purchase or sale of assets, as a component of business or corporate restructuring or as a defensive measure to the collection of indebtedness or enforcement of remedies in defaulted credit relationships -- present complex legal and practical issues requiring thoughtful, informed analysis and well-formulated strategic planning. Decisions must be made and implemented quickly to protect the interests of clients grappling with unexpected hurdles in their business plans. The current tightening of credit and shrinkage of available equity have created a fertile ground for the growth of insolvency issues in unprecedented numbers. The Bankruptcy and Restructuring group provides experienced and capable assistance to clients and offers a bridge across the turbulent waters of insolvency to a firmer and more stable financial ground.
Maynard Cooper’s Bankruptcy and Restructuring group primarily represents creditors (including banks, special servicers and other secured lenders, trade creditors, judgment creditors and creditors' committees) in bankruptcy matters and work-out situations. Further, the Bankruptcy and Restructuring group has significant experience representing private equity funds and other distressed debt and real estate investors in loan workouts, foreclosures, receiverships, deficiency suits, and Chapter 11 bankruptcy proceedings, both with respect to traditional commercial mortgages and CMBS loans. The firm also represents borrowers in debt restructurings and workouts, and debtors in complex bankruptcy and insolvency proceedings on a select basis. Our bankruptcy practitioners have extensive experience before bankruptcy judges throughout Alabama. However, our practice routinely includes representation of clients in proceedings in Delaware, New York, Georgia, Florida, Tennessee, Mississippi and other national venues. Similarly, the firm represents creditors in bankruptcy proceedings and workout situations across a wide expanse of industries: single-asset real estate holdings, multi-family housing, hotels, manufacturing concerns (including addressing the interplay between environmental and bankruptcy law), hospitals, nursing homes, assisted living facilities and home health care companies (including licensure and regulatory issues); accounts receivable and inventory financing, and retail operations, among others. In any engagement, our attorneys protect the interests of our client in every aspect of the representation, whether through negotiation, documentation, litigation or general advocacy.
Notable recent engagements include the following:
- Represented special servicer in the workout of various CMBS loans secured by commercial properties such as large apartment complexes and retail facilities, including foreclosure and subsequent sale of the properties.
- Represented lender in the workout of a non-recourse loan secured by a 500,000 square foot shopping mall, including the negotiation and consummation of (i) a deed-in-lieu of foreclosure agreement with the obligors; (ii) the acquisition of the shopping mall by a third party purchaser via deed-in-lieu of foreclosure; and (iii) re-financing by the lender for such third party purchaser's acquisition of the shopping mall.
- Represented the secured lender to a residential homebuilder owning hundreds of properties throughout the state of Florida in an attempt to work out and resolve debt exceeding $50 million.
- Represented the secured lender to the owner/operator of a large apartment complex in Texas, successfully obtaining recovery through the sale of the real property in chapter 11 proceedings.
- Represented the primary pre-petition secured lender to a manufacturer of molded plastic parts for the automotive industry in a Chapter 11 proceeding that produced an expedited sale of going-concern assets under Bankruptcy Code Section 363 and spawned numerous intercreditor and priority fights, including cross-border disputes concerning parent and affiliated companies involved in their own insolvency proceedings in Canada. The firm successfully established, in a ruling affirmed by the Eleventh Circuit Court of Appeals, the lender's entitlement as secured creditor to the proceeds of equipment valued in excess of $3 million, over the objection of the unpaid seller of the equipment.
- Served as co-counsel to the Official Unsecured Creditors’ Committee in Chapter 11 proceedings filed by a parent corporation and 23 subsidiaries headquartered in Birmingham, Alabama, with operations in 16 plants in seven states, that design, develop and manufacture, primarily from iron, steel and aluminum, high-quality cast, forged and machined components for the capital and durable goods industries. We successfully negotiated with the debtors and lending group to reach a consensual Chapter 11 plan of reorganization that allowed confirmation only eight months after the petition date. We continue to be involved in ongoing claims disputes to protect the interests of the unsecured creditors’ class.
- Represented the secured lender to the not-for-profit corporation that owned and operated the U.S. Space Camp in Florida and several related space and aeronautics exploration centers in California. We worked with the borrower in the orderly shutdown of operations and turnover of the borrower’s assets, and handled foreclosure of the lender’s security interest in the borrower’s real and personal property, including trademarks and licenses, and in the postforeclosure conveyance of interests in those unique assets to a third party.
- Successfully engineered a concrete production facility's sale of its operating assets in a Chapter 11 proceedings, yielding bids more than three times the initial bid and providing, with guarantor assistance, full repayment of the lender client.
- Assisted numerous bank clients and distressed debt and real estate investors with workouts and foreclosures arising out of defaulting borrowers in the residential construction and commercial real estate industries.
Maynard Cooper also handles bankruptcy litigation, the filing of claims, the negotiation of post-petition financing agreements and plans of reorganization, the defense of preference and fraudulent conveyance claims, the sale of assets through § 363 sales and plans, and the pursuit of all other avenues available to protect and preserve the creditor's rights in a bankruptcy proceeding. The firm’s Bankruptcy and Restructuring group also devotes substantial efforts to negotiating, documenting and enforcing non-bankruptcy workout arrangements and repayment plans, and interacts with other practice groups to lend bankruptcy-related expertise, as needed, to the structuring and documentation of loans, acquisitions, and other corporate transactions.
Our bankruptcy practitioners routinely involve lawyers from other practice groups where such expertise is needed in order to protect the interests of clients. We work with the Real Estate and Environmental practice groups in connection with environmental due diligence and strategic evaluations of environmental liability issues and creditors’ post-foreclosure ownership, maintenance and disposition of real and personal property. We also work with the firm’s Public Finance practice group in connection with representing trustees, issuers and credit enhancers on defaulted bond issues, including those related to tendered variable rate demand bonds. In both offensive and defensive litigation arising out of loan originations, loan defaults, workouts, bankruptcies, receiverships, foreclosures and other related matters, we work with the firm’s Financial Services Litigation practice group. In fact, Maynard Cooper is a leading firm in the field of consumer and commercial financial services litigation, acting as counsel for banks, finance companies and mortgage loan servicing companies in hundreds of cases in state and federal courts related to loan originations, loan servicing, collection practices, credit reporting, underwriting, mortgage insurance, flood insurance, forced-placed hazard insurance, foreclosures and redemptions, and virtually every other issue that arises in a financing transaction. The cases handled by Maynard Cooper’s Consumer and Commercial Finance Litigation group commonly include claims for violations of the Real Estate Settlement Procedures Act (RESPA), Fair Credit Reporting Act (FCRA), Truth in Lending Act (TILA), Fair Debt Collection Practices Act (FDCPA), Equal Credit Opportunity Act (ECOA) and National Flood Insurance Act (NFIA), as well as various state statutory predatory lending and consumer protection laws. The group also has defended complex lender liability actions in which commercial borrowers allege interference with business relations, RICO violations, fraud and other allegedly tortious conduct. Members of the group have represented lending clients in state and federal courts in Alabama, Mississippi, Louisiana and Tennessee. The group has also defended putative class actions against lending institutions in state and federal courts.
Representative clients have included PNC Bank, Regions Bank, Wells Fargo Bank, Bank of America/Merrill Lynch, Torchlight Loan Services, LLC, CWCapital Asset Management, Beal Bank, IBERIABANK, Cadence Bank, Bryant Bank, Calyon Bank, Aspen Square Management, Inc., Branch Banking & Trust, Bank Independent, National Bank of Commerce, Case Credit Corporation, Transamerica Commercial Finance Corporation, Synovus Bank (including First Commercial Bank), Finova Capital Corporation, Textron Financial Services, the Retirement Systems of Alabama, McWane, Inc., Allstate Insurance Co., Protective Life Insurance Co., and Metropolitan Life Insurance Corporation, among others. Maynard Cooper also served as counsel to the Official Committee of Unsecured Creditors in the consolidated Chapter 11 proceedings of Citation Corporation and of Verilink Corporation.
Attorneys in our group are members of the American Bankruptcy Institute, the Commercial Law League of America, the International Women’s Insolvency & Restructuring Confederation, the Turnaround Management Association, the Risk Managers Association, the American Bar Association, including the Business Law Section and its bankruptcy-related committees, and the Bankruptcy Section of the Alabama Bar Association. Jayna Partain Lamar is a former chair of the Birmingham Bankruptcy and Commercial Law Section, and Leland Murphree is the current secretary of Alabama State Bar Bankruptcy Section. Our attorneys have served as lecturers on creditors' rights and chapter 11 issues for, among others, the American Bar Association, National Conference of Bankruptcy Judges, Alabama Bar Institute for Continuing Legal Education, and Birmingham Bar Association.