Rodger Quigley is a litigation associate in the Restructuring & Finance Litigation Group, where he focuses on complex commercial litigation, restructuring and other litigation matters.

Prior to joining Herrick, Rodger was an associate at Wollmuth Maher & Deutsch LLP and a law clerk for the Hon. Joel H. Slomsky of the U.S. District Court for the Eastern District of Pennsylvania.

In re Concepts America, Inc., 625 B.R. 881 (Bankr. N.D. Ill. 2021), weighs in on a murky question: Can a creditor make an administrative expense priority claim because it made a substantial contribution in a case under chapter 7? The court answered no.

In Concepts America, creditor Galleria Mall Investors LP moved the bankruptcy court for allowance and payment of an administrative expense claim pursuant to sections 503(b)(3)(A), (b)(3)(D), and (b)(4) of the Bankruptcy Code.

Around May 2011, the Galleria entered into a lease with a restaurant affiliated with Concepts America, which guaranteed the lease. The restaurant eventually breached the lease, and a Texas state court entered judgment against the restaurant and Concepts America.

The Galleria tried to collect its judgment for nearly a year. Eventually, on September 19, 2014, it joined two other creditors in filing an involuntary chapter 7 petition against Concepts America. About two months later, Concepts America consented to the entry of an order for relief under chapter 7.
Continue Reading Illinois Bankruptcy Court Weighs In on Chapter 7 Substantial Contribution Claims

In a recent appeal to the Second Circuit, Bronx Miracle Gospel Tabernacle Word of Faith (the “Church”), asks the Second Circuit for relief from the sale of its property by a bankruptcy trustee. The Church’s action seeks damages against the trustee and her counsel and the bankruptcy judge who approved the sale. The action claims that the Church’s religious rights under the Religious Freedom Restoration Act (“RFRA”) and the Constitution have been violated in the bankruptcy court. The Church’s appeal is the latest installment in a foreclosure battle that began with a mortgage loan in 2008. Although the Church has been largely unsuccessful in its years of litigation against its lender, this is nevertheless a cautionary tale about how a determined borrower can take advantage of the legal system to fight on for years to recycle previously dismissed claims and to promote claims of misconduct which lack substantiating evidence.
Continue Reading Bronx Miracle Gospel Tabernacle: Lender’s Nightmare Continues

A First Department decision from last month makes it harder for mezzanine borrowers to enjoin UCC foreclosure sales.

When there is a default under mezzanine loan documents, the lenders can retake their collateral by noticing and conducting foreclosure sales under the UCC. But mezzanine borrowers can seek relief from a court to enjoin UCC foreclosure sales.

During the COVID-19 pandemic, some borrowers succeeded in preventing mezzanine lenders from exercising their rights to a prompt UCC sale by obtaining injunctive relief in New York courts. One example was in the supreme court decision appealed from in Shelbourne BRF LLC v. SR 677 Bway LLC, No. 2020-03604 (1st Dep’t Mar. 4, 2021). The supreme court granted plaintiff borrowers’ motion for a preliminary injunction and enjoined a UCC foreclosure sale of interests in LLCs.
Continue Reading Prospective Loss of Equity Is No Basis to Enjoin a UCC Foreclosure, Appellate Division Holds

Introduction

In In re VP Williams Trans, LLC,[1] Judge Michael Wiles of the United States Bankruptcy Court for the Southern District of New York confirmed that a secured creditor may make an election under section 1111(b) of the United States Bankruptcy Code (the “Bankruptcy Code”) in a proceeding under subchapter V of the Bankruptcy Code for small business debtors. Judge Wiles’s decision appears to be the first decision on this issue in this Circuit since subchapter V of the Bankruptcy Code came into effect this year.
Continue Reading Bankruptcy Court Affirms Availability of 1111(b) Election in Subchapter V Cases