The 2020 Lawdragon 500 Leading U.S. Bankruptcy & Restructuring Lawyers

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24 July 2020

Sequor Law Partners Leyza B. Florin, Edward H. Davis, Jr., Gregory S. Grossman and Arnoldo “Arnie” Lacayo were named to the inaugural Lawdragon 500 Leading US Bankruptcy & Restructuring Lawyers guide. Included in the Global guide are lawyers with leading cross-border practices that “bring remarkable skills in financing, structuring, litigating and creating a pathway forward” for their clients.

 

Chapter 11 - Procedimento, Requisitos E Benefícios

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22 July 2020

Sequor Law attorney Nyana Abreu Miller shared a presentation, in Portuguese, comparing chapters 11 and 15 of the US Bankruptcy Code on an all-star panel of Brazilian insolvency experts for the Center for Women in Business Restructuring (CMR Empresarial).

Click here to view the webinar.

The UN’s latest attempt to assist international insolvency practitioners

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13 July 2020

Miami-based Sequor Law shareholder Leyza B. Florin and attorney Carolina Goncalves summarise the UNCITRAL Working Group’s Model Law on the Recognition and Enforcement of Insolvency-Related Judgments.

As the world’s economy becomes increasingly transnational, and debtors, their assets, and creditors are scattered across multiple jurisdictions, the need for consistency and efficiency in the cross-border administration of insolvency proceedings has become more pressing. Variations among legal systems have resulted in inconsistent, duplicative, time-consuming and costly efforts to recognise and enforce insolvency-related judgments in different jurisdictions, creating legal uncertainty and other complications in the administration of cross-border insolvency proceedings.

The United Nations Commission on International Trade Law (UNCITRAL) attempted to foster international cooperation in the administration of cross-border insolvencies through its Model Law on Cross-Border Insolvency (MLCBI), but there remained an ambiguity in the recognition and enforcement of judgments related to insolvency proceedings, especially where enforcement of the foreign judgment was inconsistent with local law.


The Model Law

As a result, in 2014, UNCITRAL gave a mandate to its Working Group V on Insolvency Law to develop a model law that specifically provides for the recognition and enforcement of insolvency-related judgments. The Working Group collaborated with UNCITRAL’s 60 member states and the representatives of 31 observer states and 34 inter-governmental and non-governmental organisations to develop the Model Law on Recognition and Enforcement of Insolvency-Related Judgments .

On 2 July 2018, UNCITRAL adopted the Model Law, which is designed to address both the gap in international law regarding the cross-border recognition and enforcement of judgments that arise as a consequence of, or are materially associated with, insolvency proceedings; and the uncertainty in interpreting certain provisions of the MLCBI “in terms of providing the necessary authority for such recognition and enforcement as a form of relief available on recognition of a foreign insolvency proceeding.”


How the Model Law works

The Model Law seeks to address these issues through its primary characteristics: harmonisation and flexibility. It offers enacting states a “simple, straightforward and harmonised procedure for recognition and enforcement of insolvency-related judgments” while remaining flexible in its integration into each enacting state’s legal system. Importantly, the Model Law is intended to supplement the MLCBI, and in fact mirrors its provisions and definitions in many respects, as well as the existing legal frameworks of the enacting states.

For example, as international insolvency practitioners, we know the terminology used in insolvency proceedings can vary by jurisdiction. Where a term or expression is likely to vary among enacting states, the Model Law offers more inclusive defined terms, such as “insolvency proceeding” (as opposed to liquidation, reorganisation or bankruptcy) and “insolvency representative” (rather than trustee, foreign representative, liquidator, judicial administrator etc). It also describes terms or expressions in brackets as placeholders for jurisdiction-specific information – like the name of the court, body, or authority designated to perform the specified function – allowing the enacting state’s legislators to use the term specific to that jurisdiction.

Additionally, the Model Law offers optional provisions, such as one allowing the enacting state to refuse the recognition of an insolvency-related judgment when it originates from a state whose “insolvency proceeding” would not be subject to recognition under the MLCBI.

The Model Law also contains two noteworthy exceptions to recognising and enforcing insolvency-related judgments. Enacting states may refrain from taking any action that would be “manifestly contrary” to their public policy. Further, the Model Law enumerates the following specific grounds for the refusal of recognition and enforcement:

  • improper notice to the defendant in the proceeding that gave rise to the insolvency-related judgment;
  • the judgment was obtained by fraud;
  • the judgment is inconsistent with a judgment entered in the enacting state involving the same parties;
  • the judgment is consistent with an earlier judgment entered in another state involving the same parties and subject matter;
  • recognition and enforcement would interfere with the administration of the debtor’s insolvency proceeding;
  • the judgment materially affects the rights of creditors generally and their interests were not adequately protected in the proceeding that led to the judgment; and
  • the court issuing the judgment did not have jurisdiction.


Defining an “insolvency-related judgment”

As its name suggests, the Model Law’s distinguishing feature is that it applies to “insolvency-related judgments”, which previously had not been fully addressed by other UNCITRAL insolvency texts. The Model Law provides a broad definition of “judgment” to include any decision, such as a decree, order, or determination of costs and expenses, “issued by a court or administrative authority”. To fall within the Model Law’s scope, an insolvency-related judgment must “arise… as a consequence of or [be] materially associated with an insolvency proceeding”, and be “issued on or after the commencement of that insolvency proceeding”. Importantly, the judgment must have been rendered in a proceeding in a state other than the enacting state in which recognition and enforcement are sought; the location of the insolvency proceedings to which the judgment relates is immaterial.

The Model Law’s Guide to Enactment provides a non-exhaustive list of judgments that fall within the definition of “insolvency-related judgment”, including judgments dealing with the constitution and disposal of assets in the insolvency estate; judgments determining whether a transaction involving the debtors or assets of its insolvency estate should be avoided because it was a preferential transaction or a transaction at an undervalue; judgments involving a director or representative liability for the debtor’s actions while insolvent or in the period approaching insolvency; judgments determining that sums are owed to or by the debtor or the insolvency estate; judgments confirming or varying a plan of reorganization or liquidation or approving a voluntary or out-of-court restructuring agreement; and judgments for the examination of a director of the debtor, where that director is located in a third jurisdiction.

Decisions or orders commencing insolvency proceedings and interim measures of protection are explicitly excluded from the Model Law’s scope. Further, it is unclear whether insolvency-related arbitral decisions are considered “insolvency-related judgments” under the Model Law, as they may not come from an “administrative authority.”


The Model Law’s impact and success

While it is still too early to evaluate the Model Law’s impact and success, its design as a supplement to the MLCBI and the enacting state’s existing legal structure, rather than an overhaul of existing insolvency frameworks, suggests that it will succeed (at least partially) in making the recognition and enforcement of insolvency-related judgments more consistent and efficient. Moreover, though the Model Law intends to respect the insolvency schemes of the respective enacting states, UNCITRAL cautions against excessively modifying the Model Law and frequently invoking its exceptions. That said, enacting states are still free to make the necessary modifications to protect their own legal processes and domestic creditors, which could result in the very complications the Model Law was intended to eliminate.

The Model Law’s success also depends on the number of states that enact it. By way of comparison, over 45 jurisdictions have adopted the MLCBI, including Australia, Canada, Colombia, Japan, Kenya, Mexico, New Zealand, the Republic of Korea, Singapore, South Africa, the UK, BVI, Gibraltar, and the US; however, several European nations have not adopted it and are governed by the separate EU regulation (EC No. 1346/2000) on insolvency proceedings. This same EU regulation provides for the recognition and enforcement of judgments that “derive directly from and are closely linked to… insolvency proceedings”.  Because this EU regulation seems to address the recognition and enforcement of insolvency-related judgments, and several European nations have opted to implement its framework and rejected the MLCBI, it is unlikely that these same nations will adopt the Model Law.

Finally, as mentioned above, it is unclear whether insolvency-related arbitral decisions fall within the scope of the Model Law. As the law develops and the Working Group continues to issue guidance on its enactment, practitioners should expect to see developments on this issue.

The Model Law and its accompanying Guide to Enactment are available here.

Click here to read the original article.

Uniform Commercial Real Estate Receivership Act is now the Law in Florida

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By Jim Ash

The Uniform Commercial Real Estate Receivership Act became law July 1, marking a new era for Florida courts — and the culmination of four years of relentless diplomacy by the Business Law Section.

Given the collateral damage COVID-19 has inflicted on the economy, the timing couldn’t be better, said BLS Executive Council Chair Leyza B. Florin.

“It’s a big accomplishment,” Florin said. “Of course, this couldn’t have been anticipated, but with the economic fallout from COVID, and all the closures, the first thing that will be affected when people stop paying their rent is commercial real estate.”

Florida is one of only nine states that have adopted UCRERA since 2017.

Drafted in 2015 by the National Conference of Commissioners of Uniform State Laws, UCRERA creates a process for state courts to appoint a receiver in disputes that arise over commercial real estate, typically a default.

Supporters say that once appointed by the court, a neutral receiver can manage an asset and prevent it from falling into disrepair. Florin offers the example of a waterfront restaurant that goes out of business and is forced to close. Without someone to keep the power on and the air conditioner humming, mold would soon take over, she said.

Florida judges have the power to appoint receivers, but before UCRERA, there was no statute that addresses the process for commercial real estate disputes.

Florin said the credit belongs to members of the Business Law Section Uniform Commercial Real Estate Receivership Act Task Force.

Former Executive Council Chair Jon Polenberg created the taskforce in June 2016. He appointed Miami attorneys Kenneth Murena and Amanda Fernandez, both with Damian Valori, as co-chairs, and asked them to determine whether the proposal was right for Florida and whether the section should support it.

From the beginning, UCRERA was a tough sell, even to task force members.

“We’re dealing with people who represent both debtors and creditors in the Business Law Section, people who practice on both sides,” Fernandez said. “There was definitely a lot of push back.”

“I’m not exaggerating, it took more than a year to build consensus,” Murena said. “We started with the people who were 50-50, and then we worked on the doubters.”

Fernandez, who specializes in complex business litigation, is a former chair of the Business Litigation Committee. Murena, who is a federal court-appointed receiver and a receiver’s counsel, has been active in the Bankruptcy/UCC Committee. They worked on their respective constituencies.

Murena considers himself one of the UCRERA’s biggest cheerleaders.

Whenever the issue arose in one of his cases in state court, Murena said he found himself having to explain the process to judges and other litigants.

“It was a lot of educating the parties and the judge on how the receivership should operate, the purpose of the receiver, the benefits of the receiver, and how the receiver can help the court administer the particular assets that were subject to the receivership,” he said.

State courts would differ on whether or when to appoint a receiver, Murena said.

“There is no well agreed upon body of law that governs receivership across the state of Florida,” he said. “I always thought it would be helpful because the case law in Florida, there is some development, but it is not necessarily so consistent across the state.”

Finding consensus within the Business Law Section was only half of the battle, Murena said. The taskforce reached out the Real Property, Probate and Trust Law Section to deal with a host of their concerns, and made a presentation to the RPPTL’s annual conference. A RPPTL liaison was appointed to the taskforce.

Some RPPTL members objected to the definition of certain exemptions to a “carve out” for real property, Murena said. Other critics opposed a provision that would have imposed an automatic stay. But the definitions were narrowed, and the automatic stay became permissive instead of mandatory, without weakening the thrust of the legislation, Murena said.

“We added in a very specific provision saying this statute does not affect homestead, because that’s sacrosanct in Florida,” Murena said. “We wanted the RPPTLs to not only be okay with this, but to be behind it.”

In addition to RPPTL support, the task force also worked with the Florida Bankers Association and the Florida Land and Title Association. The revised version also had to be reviewed by the Uniform Law Commission, which requested more changes, Murena said.

Taskforce members say Rep. Mike Beltran, R-Valrico, was an enthusiastic and engaged sponsor. Beltran, an attorney, is a member of the Judiciary Committee.

“I actually had a case, and this is a real problem,” Beltran said. “We had a commercial landlord, they went through multiple bankruptcies, they didn’t complete their bankruptcy plan, and they were pocketing the rent, and this bill prevents the debtor in possession from pocketing rents to the detriment of the landlord.”

HB 783 and a companion, SB 660 by Sen. Lori Berman, D-Boynton Beach, passed both chambers unanimously.

“There were an amazing amount of voices and interests that had to be heard, it’s definitely a step-by-step process,” Murena said. “To me, it was sort of like, where there’s a will there’s a way — you just have to be patient.”

The Business Law Section is sponsoring a CLE, “Course 3922: Florida’s Commercial Real Estate Receivership Law Substantively Changes July 1, 2020, Are You Prepared?” on July 30. Featured panelists include U.S. Bankruptcy Court Judge Mindy Mora, of Florida’s Southern District, Second District Court of Appeal Judge Edward LaRose, Manuel Farach, and Kenneth Murena.

Click here to read the original article.