Chapter 11 bankruptcies generally involve the debtors proposing a five-year
repayment plan to creditors. Depending on the income and assets of the
debtors, general unsecured creditors usually don’t get paid in full
and usually it’s far from it. At the conclusion of the plan, claims
against the debtors are discharged (unless the plan provides otherwise
or in the event of secured claims where the debtors have agreed to pay
in full for the remaining term of the contract, like a mortgage). Any
creditor, however, can open an adversary proceeding to prevent their claim
from being discharged. Bankruptcies, and Chapter 11 particularly, are
difficult enough without having creditors attempting to prevent discharges
of their claims. Andre Carman of our firm recently represented a couple
in a Chapter 11 bankruptcy. The husband had been in a near-death accident,
which caused him to lose his business.
As a consequence, bankruptcy protection was necessary. While in business,
however, husband had entered into a real estate partnership to buy an
office building with a medical doctor. He and the doctor did not do business
together. As we all have experienced in way or another, the economic recession,
coupled with our client’s accident, caused him to lose the ability
to make his share of payments on the office building mortgage. In addition,
he and the doctor just did not get along. Our client and the doctor ended
up suing each other regarding their partnership. The doctor also alleged
that our client defrauded her by misrepresenting prior to office building
purchase that he had various educational degrees and that she relied on
those representations when making her decision to partner with him and
buy the office building. In the middle of the lawsuit, our clients came
to us to file a Chapter 11 bankruptcy. After the bankruptcy was filed,
the doctor filed an adversary proceeding claiming that her $2,000,000
fraud claim against the debtors should not be discharged under Section
523 of the Bankruptcy Code. The adversary fraud trial proceeded to trial
in the bankruptcy court in December 2012.
At the close of the doctor’s case, Andre requested the court to award
and find in our clients’ favor as a matter of law (before presenting
any defense) because the doctor had not met the Section 523 requirements
to prove that any representations that the husband may have made concerning
his degrees were material to a real estate transaction, that her claimed
damages of over $2,000,000 were caused by reliance on those representations,
and that she had in fact suffered any damages. After submitting written
briefs to the Court, the Court ruled in our clients favor and dismissed
the doctor’s adversary. The doctor has appealed this decision, but
in the interim Andre was able to get our clients’ Chapter 11 plan
confirmed. Our clients are now able to obtain the fresh start the Bankruptcy
Code provides.