When real estate brokers are faced with...
When real estate brokers are faced with selling real property assets that are part of a client’s bankruptcy liquidation, they may not be aware of the nuances of bankruptcy sales. There are also challenges unique to liquidation sales, which may require brokers to alter their approach.
Join SulmeyerKupetz Member Alan Tippie for the complimentary CLE-accredited webinar “The Ins and Outs of Real Estate Liquidation Sales,” during which Alan will discuss the most important aspects for brokers to consider in bankruptcy sales.
The webinar will cover:
“The Ins and Outs of Real Estate Liquidation Sales” will be held on Tuesday, August 29 at 11 AM. Register now!
When real estate brokers are faced with selling real property assets that are part of a client’s bankruptcy liquidation, they may not be aware of the nuances of bankruptcy sales. Member Alan Tippie was featured in the GlobeSt.com Q&A “What Brokers Need to Know about Liquidation Sales,” providing advice to brokers on representing clients undergoing liquidation.
The first and most important step for real estate brokers is to secure bankruptcy court approval of the broker’s employment. Without court approval, professionals, such as brokers, are not entitled to compensation, regardless of how valuable the services may have been. Another important step, Tippie said, is to “become familiar with the requirements of a bankruptcy transaction, such as court approval, the need to give notice to creditors and other parties, the possibility of an objection or overbid, and other features unique to bankruptcy sales.”
Tippie went on to discuss major challenges of liquidation sales, how a broker’s approach should change depending on the type of asset being sold, and what a client going through bankruptcy should look for in brokerage representation—which doesn’t necessarily have to include specific experience in bankruptcy sales. “While experience in bankruptcy sales and transactions is a plus, such experience is not essential as the broker will be guided by other professionals retained by the client in the case, and in particular counsel to the seller,” Tippie said.
In Chapter 11 bankruptcy cases, the court can “cram down” a reorganization plan over a secured creditor’s objections. David Kupetz authored the Daily Journal article “9th Circuit Decision Addresses Cramdown Valuation,” discussing the case of Sunnyslope Housing Limited Partnership, in which the court addressed a cramdown plan where the central issue was the valuation of the secured creditor’s collateral, an apartment complex.
The Code’s cramdown option displaces a secured creditor’s state-law right to obtain immediate foreclosure upon a debtor’s default. In a cramdown where the debtor will retain and use the collateral, the secured creditor generally must retain its lien and receive payments over time equaling the present value of the secured claim.
“Sunnyslope is an atypical case where foreclosure value is greater than replacement value,” Kupetz wrote. This was because the property was encumbered by low income housing restrictions that would be eliminated in foreclosure, but would otherwise depress the value of the property.
In Sunnyslope, the 9th Circuit explained that a creditor’s claim is secured to the extent of the value of its collateral and the collateral is to be valued “in light of the purpose of the valuation and of the proposed disposition or use of such property.” The 9th Circuit stressed that the actual plan must be the focus, and that the U.S. Supreme Court has “emphasized that, in a reorganization involving a cram down, the debtor will continue to use the collateral and the valuation must therefore occur “in light of the proposed payment plan reality: no foreclosure sale.” The valuation must reflect the property’s actual use under the plan and not a hypothetical foreclosure.
We’re pleased to announce that Member David Goodrich has been appointed to the Bankruptcy Law Advisory Commission for the California State Bar. As part of his position, Goodrich will serve on a committee that will prepare, administer and grade examinations for lawyers seeking to become certified bankruptcy law specialists.
Built on a mission to expand legal access for California residents, the California State Bar provides justice and accessibility for public services within the legal community.
SulmeyerKupetz is proud to continue its sponsorship of the California Bankruptcy Forum’s Insolvency Conference, as well as the International Women’s Insolvency & Restructuring Confederation (IWIRC).
The California Bankruptcy Forum is an organization dedicated to providing educational support, a structure for communication between the bench and bar and networking between the members, thereby providing better service to the public. This year’s Insolvency Conference will be held from May 19-21 at the Loews Coronado Bay Resort in San Diego, CA.
IWIRC is a professional association committed to the connection, promotion and success of women in insolvency and restructuring professions worldwide. The organization supports relationship-building and provides resources at the global and local network levels. SulmeyerKupetz Attorney Jessica L. Vogel currently serves as Secretary for IWIRC.
Are you or your client thinking about purchasing assets out of bankruptcy? You may have heard that bankruptcy estate assets can sometimes be purchased for a bargain price, but are you aware of the overall process and the potential risks associated with acquiring an estate asset?