Providing Milwaukee Businesses with Bankruptcy Litigation
Also Serving Businesses in the Madison, Green Bay, Wausau, Waukesha, Racine, Kenosha, and Janesville Areas
With more than 50 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, setoff rights, and representation of purchasers. Kerkman & Dunn has represented clients as creditors, debtors and trustees. Here are brief summaries of these matters:
Attorney Jerry Kerkman brought more than 30 preference actions on behalf of bankruptcy trustees. He has also represented creditors in such actions. He understands the ordinary course of business and new value defenses, having litigated these issues from both sides. There are practical issues in addition to the 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 upon fraud. Kerkman & Dunn has litigated many cases involving debts incurred in reliance of a financial position which was fraudulently represented as well as cases based upon actual fraud. In one case, Mr. 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.
Denial of Discharge
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.
Appointment of Trustees
Fraud and gross mismanagement of corporate funds provide the basis to appoint a chapter 11 trustee. Mr. Kerkman has brought and defended such motions. In particular, he 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.
Other Disputes: Objecting to Sales, Claims, etc.
The P.A. Bergner & Co. chapter 11 case was a $1.2 billion department store case in which approximately 5,000 objections were filed. Mr. Kerkman was responsible for reviewing the 12,000 claims and resolving all objections to claims. He spent two years litigating and resolving objections to all types of claims in this action.
Sale of Assets
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. Mr. Kerkman frequently and successfully represents the purchasers.
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