Creditors' Rights, Bankruptcy and Insolvency
Selected Recent Virginia and Fourth Circuit Decisions of Interest
Spotts Fain offers extensive experience in all types of insolvency and debtor/creditor law. Each of our attorneys is admitted in all of the Virginia Bankruptcy, State and Federal Courts and we represent creditors and debtors in proceedings throughout the Commonwealth and beyond. We frequently represent secured creditors in foreclosing on real property and personal property. We also represent many Bankruptcy Trustees. Our attorneys are experienced in representing creditors and debt collectors against claims arising under a host of federal and state regulatory laws.
In addition to our federal and state litigation, a significant portion of our work involves out of court workouts and reorganizations of troubled entities on behalf of the creditor or debtor. In particular, we have extensive experience in selling businesses as a going concern. We also have a special expertise in agricultural law and lending. Also we have worked on state court receiverships and assignments for the benefit of creditors.
Our clients include Fortune 50 banks, regional banks, community banks, asset based lenders and lessors, bankruptcy trustees, local businesses, agricultural lenders, product vendors, farmers, real estate investors and private individuals. We are members of the Virginia Association of Community Banks and also the Virginia Bankers Association.
Commercial Creditor Bankruptcy Legal Services
Spotts Fain represents secured and unsecured creditors, debtor’s committees and private individuals in commercial bankruptcy proceedings. In chapter 11 proceedings, we represent secured creditors in matters including:
We represent unsecured creditors in issues including:
Chapter 7 Trustee Representation
We have extensive experience in representing chapter 7 trustees and have represented most of the trustees on the Richmond Chapter 7 Trustee Panel. Among the services we perform for chapter 7 trustees are the following:
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asset sales
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preference actions
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fraudulent conveyance recovery
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lien avoidance
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accounts receivable collection
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objections to discharge and related issues
For example, we recently assisted a chapter 7 trustee in the sale of an asbestos ridden, former hospital building to a new developer. A sale was held at the courthouse where a second bidder appeared and increased the purchase price by almost 50%.
Involuntary Bankruptcy Proceedings
We have experience in filing and litigating involuntary bankruptcy petitions to ensure equal treatment of all creditors and the avoidance of fraudulent or preferential conveyances from the debtor.
Debtor Representation Services
We represent troubled businesses in evaluating the best possible option, including chapter 11 reorganization, out of court reorganization or voluntary liquidation.
Consumer Bankruptcy Services
We provide bankruptcy representation for some consumer creditors. These services include:
Real Estate Foreclosure Services
Spotts Fain provides a full service real estate foreclosure practice. We have conducted numerous real estate foreclosures, both residential and commercial, in nearly every jurisdiction across the Commonwealth. Spotts Fain frequently serves either as substitute trustee or as lender's counsel in foreclosure proceedings.
Lender’s Counsel Services
Spotts Fain offers the broadest array of services for secured lenders seeking to foreclose on real estate in Virginia. We are prepared to assist lenders with all phases of the foreclosure process, including:
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initial property valuation
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initial lien analysis
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assessing and remediating environmental issues
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securing auctioneer services
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producing sale packets
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drafting confidentiality agreements
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developing and implementing a bidding strategy
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representation at closing
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post closing issues
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obtaining possession of property
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enforcement of any deficiency balance.
Substitute Trustee Services
Spotts Fain frequently serves as substitute trustee under deeds of trust to foreclosure on real property in Virginia. We emphasize commercial and high value residential real estate. We handle all of the issues facing Virginia substitute trustees from providing adequate notice to property owners and inferior lienors (including the Internal Revenue Service), to recognizing title issues, coordinating with auctioneers, closing and filing the final account of sale.
Foreclosure Representation – Personal Property
Our attorneys are exceedingly experienced in assisting secured lenders of every type in foreclosing upon and selling personal property. We are versed in the legal requirements for selling assets, including automobiles, boats, equipment, intellectual property (including patents, trademarks and copyrights), licensing agreements, stocks, LLC interests and almost any other conceivable type of personal property interest. Our representation ranges from obtaining the initial security interest through repossession (either self-help or court ordered) through asset analysis, sale strategy, legal notification, sale and post sale deficiency. Frequently, we work to bring about a joint sale of real and personal property, often in the context of a going concern business sale. Many times, these sales bring about the highest value for the secured creditor.
Workouts and Reorganizations
Spotts Fain is continuously employed in negotiating and documenting out of court workouts and reorganizations particularly for secured lenders. We assist lenders in an initial analysis of the debtor’s business, the existence and enforceability of security interests and the existence of any lender liability or other claims. Thereafter, we negotiate and document a workout agreement and assist in resolving any post workout defaults.
Creditor Litigation
Our attorneys are skilled in a broad array of litigation representing secured and unsecured creditors. We represent creditors in addressing suits based on statutory, contract and tort recovery theories including:
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lender liability
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Fair Debt Collection Practices Act
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Fair Credit Reporting Act
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Fair and Accurate Credit Transaction Act
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Fair Access to Funds Act
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Truth-in-Lending Act
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Real Estate Settlement Procedures Act
Receiverships and Assignments for the Benefit of Creditors: Spotts Fain attorneys have worked on state court receiverships and assignments for the benefit of creditors. Our attorneys have served as state court appointed receiver to wind up businesses. We also have experience in dealing with assignments for the benefit of creditors, a seldom used, but sometimes useful state law insolvency proceeding.
In circumstances where maintaining the going concern value of a business is necessary, sometimes a state court appointed receiver is the best option for a creditor. We are prepared to help whether serving as the receiver or as lender’s counsel seeking appointment of an independent receiver.
Local Counsel in Creditor Litigation
We frequently serve as local counsel in Virginia state courts and federal courts, working directly with clients or with outisde counsel for clients in other states.
