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Category: Blog

County’s pact with Consol a great deal, lawyer says

December 20, 2012

Investigating the Condition of a Vehicle Before Accepting a Surrender

December 4, 2012

by Bernstein-Burkley

Investigating the Condition of a Vehicle Before Accepting a Surrender

It is a fairly regular occurrence for a debtor to propose a Chapter 13 plan proposing to make payments on a secured vehicle claim and to then file an amended plan proposing to surrender the vehicle.  A plan will often say that the creditor will accept the surrender of the vehicle in full satisfaction of the debt.

This is a potential minefield because the vehicle may be irreparably damaged.  In a recent case in which Bernstein-Burkley was involved, the debtor gutted the vehicle before surrender.  The client obtained relief from stay without knowledge of the damage and in reliance on the proposed surrender in the plan.  We have many arguments to make in court about the conduct of the debtor, but one solution occurred to me for future cases.

Continue reading “Investigating the Condition of a Vehicle Before Accepting a Surrender”

A Small Rule Change, But Worth Noting

November 14, 2012

by Bernstein-Burkley

This blog entry is just a quick notice that the United States District Court for the Western District of Pennsylvania has come out with a form for all Certificates of Service.  It is Local Form 7 on the attached link:

http://www.pawb.uscourts.gov/local-forms-effect-july-1-2013

This might be useful for some of our clients who do their own drafting or filing in this district. The Form requires filers to identify the document(s) being served in the title of the pleading – such as Certificate of Service of Motion for Relief from Stay and Order Setting Hearing Date and Response Deadline and further requires the server to identify how each party was served – by mail, certified mail or email, etc.

Ethics and Professionalism Roundtable at the Commercial Law League of America’s Fall Meeting

November 7, 2012

Bankruptcy Litigation 101 Seminar

October 30, 2012

Bob, Kirk and Art are leading an NBI seminar in Pittsburgh on November 9, 2012.  It’s called Bankruptcy Litigation 101.

Here’s the overview:  Whether you want to expand your practice into bankruptcy litigation or are a civil trial lawyer trying to protect your client’s interests when pending suits are thrown into the bankruptcy arena, this fundamental course is exactly what you need to get your legal bearings in bankruptcy court. Experienced litigators will lead you through the unique procedures and rule nuances of the court – showing you how to bring and defend against the most common actions litigated in this setting.

Click here to register, we are looking forward to seeing you.

It’s not too late to register!

September 18, 2012

LEAN Webinar: Looking Behind the Curtain: Offensive and Defensive E-Discovery Issues in Leasing/Lender Litigation

Date: Wednesday, September 19, 2012

Time: 1pm – 2pm Eastern

Don’t miss this valuable opportunity to learn about the most pressing issues in Leasing Litigation. Space is limited so don’t delay. Click here to register.

Bob Bernstein will moderate the webinar discussion. Bob is a qualified member of the panel of the e-discovery special masters for the Federal Court in the Western District of Pennsylvania.

Panelists include Douglas Cherry, a Partner at Shumaker, Loop & Kendrick, LLP, and Karl Schieneman, owner of Review Less, a Pittsburgh based electronic discovery consultant who focuses on predictive coding.

Panels will cover basic considerations before and during litigation. Mindful that we should “be careful what we wish for,” panelists will also talk about the time and expense of producing and receiving large amounts of e-discovery material.

After the topics are presented, we anticipate there will be time for questions. If you would like to submit your question in advance, or request a topic for a future webinar, please send an email to: info@leasecollect.org

Don’t Wait to File Suit

August 6, 2012

I feel as though it’s a common theme in my blogs but perhaps that’s because it’s so important. Don’t lose precious time when considering whether to file suit against a debtor. One of the tell-tale signs that suit is going to be necessary is when you attempt to work out a deal with the debtor before involving lawyers, allowing the debtor to make monthly payments and the debtor defaults. This should immediately send up a red flag that the debtor isn’t taking you kindness seriously. Once a debtor defaults without consequence it is nearly a certainty that it will happen again and that you will not see the rest of the promised payments.

Although we will sometimes facilitate a monthly payment plan, we only do so pursuant to a signed stipulation providing for the entry of judgment against the defendant upon default. This gives the debtor incentive to make the monthly payments and if they fail to do so, it gives the creditor the right to enter judgment and execute thereon.

The Role of Creditors’ Committees in Chapter 11 Cases: A Brief Overview

July 27, 2012

One of the unique aspects of the corporate chapter 11 reorganization process is the potential appointment of a committee of unsecured creditors, called Creditors’ Committees.  Section 1122 of the Bankruptcy Code permits the U.S. Trustee to establish an unsecured creditors’ committee to represent the overall interests of all unsecured creditors in a chapter 11 bankruptcy case.

To form such a committee, the U.S. Trustee seeks the participation of those unsecured creditors who hold the largest unsecured claim amounts.  The U.S. Trustee will review the responses of those unsecured creditors that are interested on serving on the committee and subsequently create a committee consisting of approximately three to seven members.  Typically, after formation of the committee, legal counsel is appointed to represent and protect the interests of the committee.

An important function of an unsecured creditors’ committee is to monitor the occurrences in the chapter 11 bankruptcy proceedings and assert the interests of the creditors’ committee – whether it be in the form of a motion, objection, claim challenge, etc. – to assure that such action is in the best interest of the bankruptcy estate and unsecured creditors.  Additionally, the committee may investigate the debtor’s conduct throughout the bankruptcy proceedings, consult with the debtor on the administration of the case, and participate in the formulation of plan of reorganization.

In general – and most importantly – an unsecured creditors’ committee is created to ensure that the interests of all unsecured creditors in the bankruptcy proceeding are adequately and substantially represented.  An unsecured creditors’ committee provides an organized, centralized process whereby unsecured creditors can be assured that their claims and interests are being protected throughout the bankruptcy process up until the confirmation of a plan of reorganization, as the committee essentially serves as a fiduciary to those unsecured creditors who are not members of the committee.  The creditors’ committee ultimately serves as a safeguard to the proper management of the business of a debtor-in-possession.

Finally, when determining whether an unsecured creditors’ committee should be appointed, it is important to consider the costs associated the appointment of such a committee.  Because the committee typically employees professionals such as counsel and accountants, payment to such professionals are considered administrative expenses to be paid out of the bankruptcy estate.

Overall, because the committee serves as a “watchdog” for all unsecured creditors in chapter 11 corporate litigation, the benefits of having a committee appointed are numerous and the committee plays an invaluable role in the bankruptcy process.

Don’t Take It Personally

July 12, 2012

It can sometimes be very difficult to deal with the fact that a debtor is not only refusing to pay you but willing to pay an attorney to file a response to your Complaint. In addition, if the matter goes to trial or arbitration, it can be startling to hear testimony from the debtor that may entirely contradict with your testimony.

What you need to remember is that, although this may be the first time in twenty years that a client has failed to pay you, this happens every day to many businesses and individuals all across the country for a variety of reasons. In order to increase your chances of recovering, however, you are best served by putting emotions aside. When the amount in controversy is within arbitration limits (this varies from county to county but is generally defined as under $50,000.00) you must understand that, even after you make the effort to attend arbitration, supply a witness and succeed, the Defendant has the right to appeal within 30 days. It is very common for an unsuccessful Defendant to appeal an arbitration award for purposes of discussing settlement in exchange for avoiding trial. While you may have more leverage for discussing settlement with an arbitration award under your belt, you’ve  also lost precious time. If you’re willing to discuss settlement prior to an arbitration hearing or trial, you may save yourself time and money by treating the negotiations as you would treat any other business deal, rather than letting your anger and frustration get the best of you.

Keeping Clients Informed

June 30, 2012

By: Ray Wendolowski

One of the biggest challenges to helping clients as an attorney is keeping them well informed about their case in a way that is both helpful and easy to understand. It’s very easy to assume that a client will understand you when you tell them that the defendant has filed preliminary objections in regards to service and that you are going to file an amended complaint and attempt service again. This makes perfect sense to me, and likely to any other PA attorneys reading this, but any non-lawyer would likely be very confused.

In general, you should not assume that a client will understand any aspect of the law, no matter their level of sophistication, and you should make sure to explain what is happening in the case in laymen’s terms. Legal jargon can confuse your client, and can then lead to client dissatisfaction because they do not understand what has occurred in the case. It may take a little extra time to explain things to a client this way, but it will create a better relationship with the client and make the client more satisfied.

Watch This Space

June 28, 2012

By: Ray Wendolowski

This Pittsburgh Law firm has a big announcement coming very soon, but it’s really not my place to be the one to make it.

So keep your eyes on this space for some big new in the next few weeks.

Lawyers, Guns and Money… Sorry, Just Lawyers and Guns

June 26, 2012

By: Ray Wendolowski

Our firm held the third annual client appreciation event at Nemacolin Resort’s Shooting Academy on June 22, and it was a fantastic time. This is the first time I have attended the event, and I am very glad I did.

Each attendee was placed on a team, and the teams had a chance to shoot at each of the fifteen stations on the course. The winning shooter had a score of 92 out of 100, besting my measly 65 out of 100 by a mile.

As a bonus for posting a comment, the first person (not a member of Bernstein Law Firm) to identify the artist who sang the song referenced in the title will receive a shout out in my next post.