With hundreds of contested hearings and trials in bankruptcy courts throughout the United States, Kerkman & Dunn advises clients on the law and counsels them on the practicalities of each individual situation. The hearings and trials in which we have assisted our clients in the past involved nondischargeability, denial of discharge, fraudulent transfers, preference litigation, set-off rights, and representation of purchasers. Kerkman & Dunn has represented clients as creditors, debtors, and trustees. Here are brief summaries of these matters:
The Kerman & Dunn legal team is extremely experienced in bringing actions on behalf of bankruptcy trustees. The team also has experience representing creditors in such actions. The team understands the ordinary course of business and new value defenses, having litigated these issues from both sides. There are practical issues in addition to legal ones. The amount in dispute often does not justify the cost to litigate the issue in court. Additionally, creditors who have been fleeced once when the debtor filed bankruptcy are subject to additional injustice in their eyes when they are being asked to repay what they have legally obtained.
These actions are usually based on fraud. Kerkman & Dunn has litigated many cases involving debts incurred in reliance of a financial position that was fraudulently represented as well as cases based upon actual fraud. In one case, Jerry Kerkman represented two creditors who invested in jewelry. The jeweler gave the creditors financial statements which were “draft” compilations. Bank records were obtained to reconstruct the jeweler’s financial position. The court found that the debts had been incurred through the fraudulent use of financial statements and based upon actual fraud. It held the debts were not dischargeable. The creditors then sued the accounting firm which had prepared the compiled financial statements and obtained a favorable settlement.
The ability to determine what really happened in the transaction is crucial to being successful. It is a matter of substance over form. Solvency may or may not be an issue. The firm’s keen financial acumen allows it to determine the substance over form, obtain favorable settlements and successfully litigate cases. Frequently there is an effort to disguise the real transfer. The analysis begins with the parties’ positions before any transfers and their respective positions after the transfers. What happened in between is then analyzed to determine the appropriate attack.
Creditors usually bring actions to deny the dischargeability of their debts instead of obtaining a denial of a discharge because frequently the debtor has a limited availability of funds. If the discharge is denied, then all creditors, including the client can seek to avoid the discharge or if the creditor holds the only significant debt. Members of our firm have litigated both sides of the issue.
Fraud and gross mismanagement of corporate funds provide the basis to appoint a chapter 11 trustee. The Kerkman & Dunn team has brought and defended such motions. In particular, they successfully brought a motion in Arizona after expedited discovery and obtained a chapter 11 trustee for a NASDAQ company within two months after the case was filed.
The P.A. Bergner & Co. chapter 11 case was a $1.2 billion department store case in which approximately 5,000 objections were filed. The Kerkman & Dunn team was responsible for reviewing the 12,000 claims and resolving all objections to claims. They spent two years litigating and resolving objections to all types of claims in this action.
This is another area of litigation for Kerkman & Dunn. Frequently these sales are on an emergency basis. Often, notice of this type of action is limited. Consequently, the details of the sale are frequently worked out “on the courthouse steps” after some arm twisting by the judge. The team frequently and successfully represents the purchasers.
Contact our offices to speak with an experienced bankruptcy litigation attorneys today to discuss your situation and find out how we can help with your litigation needs.
Some firms seek to win cases, drawing the matter out much longer than necessary to achieve a moral victory at the expense of the client’s time and money.
If you are looking for an attorney who not only is very good in the courtroom, but will take your cause personally, and shoot straight with you, then this is the firm you need on your side.
Jerry did an excellent job of evaluating the facts and law related to a case we wanted to settle. When the other side would not accept our reasonable offer, Jerry proceeded with solid legal arguments that resulted in a quick and efficient case dismissal.
Best legal money I have ever spent.