Case Studies

Plan Administrator for $75M Liquidating Chapter 11 Bankruptcy Estate

J.S. Held Acquires Clark Seif Clark, Strengthening West Coast Capabilities for Environmental Claims, Disputes, and Catastrophe Response

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Home·Plan Administrator for $75M Liquidating Chapter 11 Bankruptcy Estate

The Situation

Over the course of 30 years, multiple generations of families had invested approximately $35 million in an entrepreneur’s real estate empire in exchange for promissory notes paying interest at about 8% per annum. After the 2008 real estate market crash, the debtor could not afford 8% interest and reduced it to approximately 2% before ceasing payments altogether.  The properties in his portfolio were encumbered by millions of dollars in secured debt, but not over-leveraged.  The borrower had misappropriated approximately $15 million of investors’ capital to patent, manufacture, and commercialize personal inventions.

Serving as debtor-in-possession in a confirmed Chapter 11 bankruptcy, the entrepreneur failed to sell assets to pay creditors and continued investing in personal inventions.  After 12 to 24 months, the creditors’ committee petitioned the court for a plan administrator, and our team was appointed.

How We Advised

As Plan Administrator of the $75 million liquidating Chapter 11 bankruptcy estate, our experts quickly overcame the contentious and litigious shareholders’ challenges to recover approximately 67% of investor claims by:

  • Providing executive leadership and operational oversight of approximately 20 real estate entities located in the U.S. and Canada, including condominium, office, retail, and industrial properties and vacant land;
  • Marketing and monetizing intellectual property assets of a shuttered technology business established to commercialize the shareholders’ inventions;
  • Representing the estate in numerous, significant lawsuits brought against it by its shareholders, and
  • Achieving a tax opinion that $15 million of $35 million provided by investors had been misused by the defendant, resulting in a $7 million ordinary income tax credit for the investors.

Obstacles & Our Solutions

  • The debtor had structured and signed promissory notes, then sued his investors for usury in an attempt to reduce $35 million in notes to $18 million.
    • Our experts proposed a successful compromise to the bankruptcy court, achieving a long-awaited distribution for the investors and avoiding expensive, lengthy litigation.
    • The bankruptcy estate included intellectual property assets funded by the debtor’s misappropriation of investors’ capital to create and patent his inventions.
    • We obtained a tax opinion that the $15 million of investor cash used for a purpose other than the purchase of real estate constituted theft and, therefore, an ordinary income loss rather than a capital loss. This resulted in a $7 million tax benefit for the investors.
    • We hired IP appraisers and liquidated the IP assets through sales and auctions.
  • The debtor sued the creditors’ committee and plan administrator (J.S. Held) numerous times, including a $5 billion lawsuit after all of the assets were successfully sold.
    • Our team, the creditors’ committee, and counsel spent significant time in bankruptcy court in multiple jurisdictions.
    • The debtor lost the $5 billion lawsuit and two subsequent appeals.
  • The creditors’ committee was restless, having spent over a year waiting for the debtor to sell assets to pay his creditors.
    • We quickly deployed management strategies to take control of all property, related bank accounts, and accounting.
    • We immediately completed a disposition analysis to determine the best exit strategy for each property, including a thorough review of existing data, the procurement of new valuation information, and working closely with the post-confirmation creditors’ committee to achieve consensus.
    • Our experts identified and deployed best-in-class leasing and marketing services for the real property to maximize returns prior to liquidation.
    • We successfully negotiated the sale of diverse real property located in the U.S. and Canada, including hotels, apartment buildings, land, office buildings, warehouses, and high-end personal residences.
  • Individual real estate properties were owned by separate LLCs that were put into bankruptcy by the debtor, resulting in multiple Chapter 11 bankruptcies and creating a risk for investors that lenders could foreclose on individual properties.
    • Our team sold assets and negotiated aggressively with secured lenders to secure their cooperation and prevent foreclosures, thereby establishing a path to financial recovery for the investors.
  • Businesses and assets located in Canada complicated the bankruptcy resolution process.
    • We interacted with Canadian brokers, lawyers, and other parties throughout the process.
    • We resolved significant tax issues in Canada, arising from his failure to file Canadian taxes, including those for the 5 years prior to filing bankruptcy.
  • The debtor remained an employee of the businesses during the bankruptcy, earning $25,000 per month.
    • We initially tried to work with the debtor, then terminated him when he proved to be an impediment to recovery.

Key Contact

David Stapleton, CPA, CLPF 
Senior Managing Director 
Strategic Advisory Practice 
+1 213 235 0601 
[email protected] 

Related Practice Areas

> Fiduciary Services 
We deliver unbiased, expert solutions in court-mandated and out-of-court situations that demand a third-party fiduciary, including insolvency, fraud, litigation, and shareholder disputes. When companies are in financial distress, become entrenched in complex disputes, or fraud is suspected, lenders, attorneys, and regulatory agencies recommend that federal and state courts or boards of directors appoint our experts as fiduciaries. 

 

> Solutions for Distressed Situations 
We deliver integrated solutions for distressed and insolvent businesses that maximize recovery, mitigate risk, and restore enterprise value. Our experts are retained to help distressed organizations stabilize operations, protect stakeholder interests, and execute turnaround strategies. We take an operationally-focused approach that looks beyond the balance sheet to minimize further degradation and build a path to sustainable growth. 

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