So Maybe We Now Know When A Claim Arises, But Can A Debtor Discharge The Claim?

Although not admitting that it succumb to acknowledged “universal disapproval” of its 1984 decision in Avellino & Bienes v. M. Frenville Co. (Matter of M. Frenville Co) 744 F3d 332 (3rd Cir. 1984), the Third Circuit Court of Appeals did, in fact, reverse Frenville on June 2, 2010, with its en banc decision In re: Grossman’s Inc. et al., Debtors JELD-WEN f/k/a Grossman’s Inc. Appellant, v. Gordon Van Brunt, Individually and in his capacity as Personal Representative of the Estate of Mary Van Brunt. However, the Court left open the question of whether a claim is discharged in bankruptcy.

The facts of the JELD-WEN case were as follows:

• In 1977, the claimant purchased products containing asbestos from Grossman’s Inc. when remodeling her home. In April 1997, Grossman’s filed a Chapter 11 bankruptcy petition in the U.S. Bankruptcy Court for District of Delaware and the plan of reorganization was confirmed in December 1997. The claimant did not file a proof of claim before confirmation of the plan because, at the time, she was unaware of any claim she had because she was not diagnosed with mesothelioma until March 2007, and had manifested no symptoms related to asbestos exposure until 2006.
• Shortly after her diagnosis, claimant sued JELD-WEN, the successor-in-interest to Grossman’s, in a New York state court. JELD-WEN moved the Bankruptcy Court to reopen the chapter 11 case, seeking a determination that the claims were discharged by the plan. Claimant died in 2008, and the spouse was substituted as the representative of her estate.

Significantly, the Court noted that in the Grossman’s bankruptcy case “[a]t the time of the [bankruptcy], Grossman’s had actual knowledge that it had previously sold asbestos-containing products such as gypsum board and joint compound”; “Grossman’s knew of the adverse health risks associated with exposure to asbestos”; it “was aware that asbestos manufacturers had been or were being sued by asbestos personal-injury claimants”; it “was aware that producers of both gypsum board and joint compound were being sued for asbestos-related injuries” and it “was not aware of any product liability lawsuits based upon alleged exposure to asbestos-containing product had been filed against [it]….”

In first overruling its Frenville decision, the Court concluded that the Frenville “accrual” test was too narrow an interpretation of a “claim” under the Bankruptcy Code. The accrual test of Frenville established that the existence of a claim depended upon whether the claimant possessed a right to payment, and when that right “arose” as determined by the relevant non-bankruptcy law. If the right to payment, per state law, arose post-petition, it is a post-petition claim, even though (for example) the exposure to toxic materials happened pre-petition.

Now, the Third Circuit is “persuaded that the widespread criticism of Frenville’s accrual test is justified.” In its place, the Third Circuit now says “a ‘claim’ arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a ‘right to payment’ under the Bankruptcy Code. See 11 U.S.C. Section 101(5)”.

But then, the Court stated that their new definition of when a claim arises did not, necessarily, mean that the plaintiff’s claim was discharged. For that, the case had to be remanded to the District Court. The Court did give some guidance in this regard — raising the issue of due process. The Court noted that notice is “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality….”  Also, inadequate notice can “preclude discharge of a claim.” In this regard, one wonders if the plaintiff was accorded proper due process. Recall, Grossman knew it had sold asbestos-containing products and that asbestos caused health problems, and knew that the manufacturers of asbestos and products that use it had pending personal injury claims litigation.

For claimants seeking to not have their claims discharged, it appears a due process argument is an avenue of attack. For debtor companies filing bankruptcy and seeking to discharge potential future claims — perhaps the notice of claims bar date should have language regarding potential tort liability.

So what do you think? Should Frenville have been overturned? Has the Court pointed to a due process attack?

We have been discussing preferential payments, defenses and avoidance tactics.  But what businesses care about most is getting paid for goods and services provided. This entry will discuss how to collect from a customer who has declared bankruptcy.   

After I send back the preferential payment, how do I get paid for the original goods/services?

To obtain any kind of recovery on a debt from a debtor who has filed for bankruptcy protection, you must file a document called a “Proof of Claim,”  which summarizes the amount of debt and its priority.  Often, your debt will be listed in the bankruptcy filing, and you will be sent a Proof of Claim by the Bankruptcy Court.  You don’t necessarily need a lawyer to fill out the Proof of Claim form, but you probably should consult an attorney if you receive a preference demand letter.   Attach to the Proof of Claim a copy of the invoice or contract that forms the basis of your claim, or a summary of the elements that make up the claim.  The Proof of Claim is then filed with the Court, or sent to a claims agent if the case is a big, publicly traded company like Circuit City or LandAmerica. 

After I file my Proof of Claim, when will I get paid, and how much will I get paid?

When you get paid, and how much you get paid, depends on several factors, including which chapter the debtor has filed (7, 11 or 13), and how much there is available to pay creditors.  In a chapter 7, for example, a trustee sells all of the assets of the bankrupt company, and then distributes what is left after costs of liquidation to the creditors.  If there are a lot of things to be sold by the trustee, it will take a long time before funds are distributed to creditors.  In a chapter 13, distributions to creditors generally happen more quickly.  In large, Chapter 11 cases, the Chapter 11 Plan must first be confirmed – a process that can take many months.

We previously dissussed what preferences are and some common defenses.  Many small businesses may be wondering if there is any way to get your money, but avoid claims of preferential payment.   Unfortunately, there is no absolute, “slam dunk” way to avoid a bankruptcy preference claim risk. In general, however, the two best business strategies to protect your company in these economic times are to have a written collections policy that is strictly followed for every customer, and to watch your receivables closely.  If a customer starts lagging — getting behind the “normal” or historical payment history — then that should be a red flag, and the best advice is to put that company on a cash basis.  If you “tighten” the payment terms (net 15 instead of net 30 or increase the interest on late payments), the Bankruptcy Court may interpret this as a “change” of the payment terms, and you might lose the “ordinary course of business” defense.  A cash basis, however, might be subject to the “contemporaneous exchange” defense, as the goods or services are being exchanged for payment at the same time.   

Another situation that might reduce the amount of repayment is to provide “subsequent new value”  to the debtor.  It is like a set off.  If you receive a preference demand that is not subject to any defenses, but after (subsequent to) the payment they seek back, your company sent more goods or provided more services to the debtor, and has not yet been paid for those subsequent goods/services, then you can reduce the preference liability exposure by the amount of subsequent unpaid goods/services. 

Although this does reduce the preference liability, companies don’t like to be in this position, because they are not getting paid full value for any of the goods/services provided. 

One final tactic may be to demand alternative sources of recovery for you, such as co-borrowers, or guarantors of the debt. A good creditors’ rights attorney can properly identify which of these strategies may be useful in your particular situation.

Yesterday we discussed preferential payments – payments made to an insolvent company within 90 days of the bankruptcy filing.  To more equitable or fairly divide the limited assets among the creditors, these payments must be returned to the debtor.  Your first question upon receiving a preference demand letter is likely to be:  Do I have to give the money back?

 Although the Bankruptcy Code gives the power to recover these preferential transfers, your business may have certain defenses to defeat, or at least lessen, your exposure. 

These defenses include:
• The debtor was not insolvent when it paid you;
• payments made in the ordinary course of business;
• contemporaneous exchange for new value;
• payments made outside of the 90 day preference period (so long as you are not an insider);
• payments made via C.O.D. 

 Whether a defense applies is a very fact-specific determination made after detailed review of the account information and history between the debtor and creditor.  Unfortunately, it is becoming common for Trustees or debtors in possession to sue everyone receiving payment 90 days prior to the bankruptcy filing, and to sort out the merits of each claim later.  In practicality, this often results in unknowing creditors sending back non-preferential payments or creditors deciding it is too much trouble to defend a preference claim and not asserting valid defenses.

This area of law is not only very fact-specific, but very technical and procedural.  We strongly advise consulting a bankruptcy attorney to assist in minimizing your risk and maximizing your recovery.