Advice for New Bankruptcy Lawyers on Drafting and Litigating Motions for Relief From Stay
Standing, Papers to be Filed, Timing, Notice, Defenses, Discovery, Presenting Evidence, Appeals, and More
Recording of a 60-minute CLE video webinar
This CLE webinar will discuss solutions to the practical and procedural issues that new attorneys face when preparing and litigating motions for relief from stay based on Bankruptcy Code Section 362(d), focusing on (d)(1) and (d)(2). The panel will discuss standing, what needs to be filed, timing and notice issues, bankruptcy court jurisdiction, discovery and evidentiary issues, appeals, and more so that new attorneys can feel confident on even the first assignment.
Outline
- Nature and grounds for relief
- Motions under Section 362(d)(1)--for cause
- Bad faith other than 362(d)(4)
- Lack of adequate protection: what it is and is not
- Types of evidence available early in the case
- Motions under Section 362(d)(2)
- Proving lack of equity
- Definitions of equity
- Property with volatile value
- Discovery and obtaining formal valuation
- Using non-experts to demonstrate value or equity
- Proving not necessary to an effective reorganization
- Proving lack of equity
- Motions under Section 362(d)(1)--for cause
- Standing
- Timing of motion and ability to renew it later; preclusive effects
- Drafting proposed orders
- Types of relief available
- Avoiding ambiguity while retaining flexibility
- Describing the right to pursue remedies
- Reserving bankruptcy court jurisdiction
- Waiver of effective date of order
- Dealing with potential surpluses
- "Agreed" or consent orders: "drop dead" or self-executing orders after default
- Notices of hearings
- Relelvant rules
- Addressing and serving non-electronic notices to persons who have not appeared in the case
- Pitfalls of failing to give correct and complete notice
- Responding to motions for relief: standing
- Best practices when arguing the motion
Benefits
The panel will review these and other key issues:
- Who is a party in interest for purposes of Section 362?
- How does the nature of "cause" change as the case progresses?
- When do state courts have concurrent jurisdiction over whether the automatic stay remains in effect?
Faculty
Austin McMullen
Partner
Bradley Arant Boult Cummings
Mr. McMullen is a board-certified Creditors’ Rights Specialist. He also regularly represents businesses in the... | Read More
Mr. McMullen is a board-certified Creditors’ Rights Specialist. He also regularly represents businesses in the highly regulated food and beverage industry and in other government affairs matters. Mr. McMullen is one of a small but select group of Tennessee attorneys who have completed a rigorous certification process established by the American Board of Certification. Austin zealously represents his clients in bankruptcy, commercial and real estate litigation, workout, judgment enforcement and execution matters. He also serves as the receiver of distressed businesses to successfully resolve and satisfy creditor claims.
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William L. Norton, III
Partner
Bradley Arant Boult Cummings
Mr. Norton focuses his practice in the business bankruptcy area, dealing in all aspects of bankruptcy cases, creditor... | Read More
Mr. Norton focuses his practice in the business bankruptcy area, dealing in all aspects of bankruptcy cases, creditor rights and insolvency. With more than 25 years of practice, he has represented just about every kind of client interest expected in bankruptcy cases. His main focus now is Chapter 11 business cases – representing debtors, secured creditors, unsecured creditors, committees and trustees.
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