Category Archives: Bankruptcy

A piece of paperwork has cost an Invercargill accountant who was adjudged bankrupt his home.

Darryl Robert Hewitson started his accountancy business in Invercargill in 1997. He later became ill with pulmonary sarcoidosis, a respiratory complaint, which adversely affected his ability to work.

In a judgement released by Justice Rachel Dunningham yesterday, it says in 2009 Hewitson was served with proceedings by some of his clients.

Hewitson owed a total of $412,038.53 to six claimants including costs and disbursements.

The outstanding amount still owed to creditors is $337,123.28 plus the assignee's unrecovered time costs of $15,987.42 and outstanding disbursements of $19,413.12.

On November 18, 2009, Hewitson was adjudicated bankrupt in the High Court at Invercargill.

An insolvency officer wrote to him the following day advising him of his obligations including the need to file a Statement of Affairs within 10 working days.

Despite repeated requests and the officer reminding Hewitson his three-year bankruptcy period would not commence until the statement was received, he failed to file it.

In April 2010, Hewitson's mother bought his Regent St property for $180,000 and in May of the same year he said he sent the Statement of Affairs to the assignee. However, it was never received by the assignee's office.

Hewitson was gifted $250,000 from his father in 2014 and he used $165,000 of it to buy his former home, believing he was already discharged from bankruptcy.

In March 2018, Land Information New Zealand notified Hewitson a caveat had been lodged against his property by the assignee.

"When he contacted the office of the assignee, he was told that they had not received his Statement of Affairs and he remained an undischarged bankrupt."

It was not until April 2021, three years after he completed another statement, he was automatically discharged from bankruptcy.

The High Court appeal heard in the Invercargill District Court on December 13 wasfor Hewitson to seek judicial review to stop the sale of his property citing the assignee failed to have regard for all relevant circumstances including the conditions under which he reacquired the property and the changed circumstances of the creditors.

Hewitson's review of his creditors showed some appeared not to be trading, or were in the process of being removed, one business owner had died, and after a conversation he had with one in September 2021, he did not believe the man had any interest in recovering monies.

Justice Dunningham said he had considered Hewitson's interest in remaining in his home due to his ill health and the misunderstanding he believed he was already discharged.

"Notwithstanding this he is in possession of a substantial after-acquired asset while his creditors have only received 25c in the dollar in payment of their claims.

"In all fairness I believe we should be proceeding to sell the property again."

Justice Dunningham dismissed Hewitson's application.

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Bankruptcy confusion leads to loss of home - New Zealand Herald

U.S. Court Of Appeals and Bankruptcy Appellate Panel - Ninth Circuit

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YARMOUTHIf investors were hoping for clarity during a Jan. 19, telephone hearing in the bankruptcy case of Levee Breaks Investment Group, they didnt get it.

The purpose of the hearing, called a341 Meeting, is to establish the debtors, assets, liabilities, income, expenses, and other relevant financial circumstances in a bankruptcy case.

Bankruptcy Trustee David Madoff asked Brian Serpone,who owns Levee Breaks, a series of questionsto find out what happened to investors money, how and where it was spent, and even where he lived. Investors were allowed to ask their own questions.

Serpone didnt answer a single one, according to investor Nancy Marble. Hetook the Fifth to each and every question he was asked, she said.

The Fifth Amendment gives a person the right to refuse to answer questions that might incriminate them.

Levee Breaks bankruptcy: 5 properties for sale, 3 to be abandoned

Serpone even refused to answerwhen asked if 14 Rainbow Road, West Yarmouth, is his current address. The address is listed on the Secretary of States website for several of Serpones limited liability companies, including Headley Grange Investments LLC, Brian Serpone Productions LLC, Hope Music Foundation LLC, and The Residences at Woodcrest LLC.

The property at 14 Rainbow Road is assessed at $308,400, according to town records. The owner is listed as Mary Katherine Harmon who bought it from Richard and the lateKathleen Serpone, for $210,000 in 2015.

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Levee Breaks, a Yarmouth-based limited liability corporation, filed for bankruptcy Oct. 22, 2021 in U.S Bankruptcy Court in Boston. Founded by Brian Serpone in 2015, Levee Breaks' business involved the construction, development, rehabilitation and sale of properties for the benefit of its members.

Members, or investors, were sold $10,000 and $20,000 promissory notes with a promised10% annualreturn on their investment. But those promissory notes turned out to be unregistered securities, andLevee Breaks was not registered with the state's Securities Division, as required by Massachusetts law, according to state regulators.

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Since the October bankruptcy filing, more than 70 creditors, about 55 of whom are investors,have filed claims against the corporation. Some of those creditors are investors, and some are banks holding mortgages on the properties.

There have been $4.5 million in total claims filed in the bankruptcy case, of which $1.4 million are secured claims, Madoff said. The investors' claims are unsecured.

Madoff is still reviewing each claim to determine if the records are accurate.He has asked the bankruptcy court forpermission to hire a forensic accountant to review Levee Breaks' books and accounts to see if there was co-mingling of funds, or wrongful transfers made.

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Thecourt has the authority to make sure that anything that should not have left the estate comes back into the estate, according to Professor Emeritus Michael Hillinger, who teaches consumer bankruptcy at the University of Massachusetts Law School. A trustees job is looking for all possible things a company did that can be recaptured for the benefit of the estate, he said.

There was a lot of money invested and a lot of money not accounted for, Madoff said about the Levee Breaks bankruptcy.

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Madoff was also appointed the trustee for Headley Grange LLCwhen that corporation filed for Chapter 7 bankruptcy in October 2021. Brian Serpone is the resident agent for Headley Grange. His address is listed as 14 Rainbow Roadin the LLCs certificate of organization in 2017.

The company was engaged in commercial and residential real estate development, acquisition, renovation, and sale.

Eight claims totaling $245,500 were filed in the Headley Grange bankruptcy case.

Contact Denise Coffey at dcoffey@capecodonline.com. Follow her on Twitter: @DeniseCoffeyCCT.

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Brian Serpone takes the Fifth at Levee Breaks bankruptcy hearing - Cape Cod Times

With seniors making up a good portion of its customer base, COVID-19 has had an outsized impact on K&W Cafeterias Inc., resulting in the Winston-Salem-based chain declaring Chapter 11 bankruptcy six months after the virus first emerged in North Carolina. Chapter 11 allows the restaurant to stay in business as it tries to reduce expenses and debt, which has led to corporate downsizing.

When the 1980s and 1990s saw the closing of many once-popular cafeterias, K&W was an outlier, growing its business across North Carolina and into Virginia.

At its height, the longtime purveyor of Southern comfort food and other cafeteria classics operated 35 restaurants, but that number had fallen to 18 when the pandemic emerged. It now stands at 11, including Wilmingtons K&W, at Hanover Center, which remains open but for fewer hours than in pre-COVID days.

A once-popular place for early morning business-, church- and civic-group meetings, the Wilmington K&W stopped serving breakfast in the early days of the pandemic, the receptionist on duty Tuesday said. K&W officials have not said if they plan to bring back breakfast post-pandemic and post-bankruptcy nor have they commented on the future of the 11 locations still open.

Shortly after K&W filed bankruptcy, an economics professor told the Winston-Salem Journal that the outlook for cafeterias and buffet restaurants was challenging, at best.

Unfortunately, it is likely that cafeteria-style and buffet-style meals will be much harder to sustain in the post-COVID-19 era, said Zagros Madjd-Sadjadi, of Winston-Salem State University. There are unique issues with such restaurant themes during a time when more health-conscious consumers are demanding better information about their dining choice.

The very nature of this form of dining makes it difficult to comply with such requests, Madjd-Sadjadi said.

Meanwhile, Wilmington customers can take heart that the local K&W remains open for now. (The Greater Wilmington Business Journal reached out to the cafeteria manager but had not heard back by 2 p.m. Tuesday.)

Although breakfast is off the menu, K&W fans should be pleased that the cafeteria no longer is closed in the late afternoon. The Wilmington location is open daily from 11 a.m.-8 p.m., the cafeteria receptionist said.

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Amid bankruptcy, breakfast remains off the table at Wilmington K&W - Greater Wilmington Business Journal

In just two construction business bankruptcy filings from January 2022, 80 separate contractors were not able to secure their right to full payment leaving millions of dollars of construction debt unsecured.

The construction industry is volatile: 97% of surveyed construction professionals reported experiencing stress due to cash flow and payment-related issues and as a result, bankruptcies are unfortunately a common occurrence.

With over $3.3 million in debts to 51 separate contractors, Floridas Performance Paving Sealcoating & Maintenance filed for Chapter 7 bankruptcy late last month. Additionally, the recent collapse of solar firm Midwest Wind and Solar, which put dozens of contractors at risk, provides yet another example of the significant challenges construction businesses face.

But the bankruptcy filings of both Performance Paving and Midwest Wind and Solar reveal some concerning similarities: In both cases, the companies assets were not enough to pay off their liabilities, and the entirety of the creditors debt was listed as unsecured.

Mechanics liens are a valuable tool contractors can use to secure debt. However, they by contractors affected by this bankruptcy and there isnt a simple answer as to why.

Levelsets 2021 Construction Cash Flow & Payment Report found that only 71% of surveyed construction professionals reported filing a mechanics lien last year.

While this statistic has improved from just 58% in 2020, it still leaves almost a third of contractors who have not used a mechanics lien to enforce their right to payment.

Matt Viator, construction attorney and senior Legal Associate at Levelset, suggested the reasons for this may be varied.

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Why arent contractors using mechanics liens? Viator suggests its usually for one of the following reasons.

In many cases, contractors may simply be unfamiliar with the process of filing a mechanics lien, said Viator. Even if they are, they may avoid it for some reason perhaps they think its too complex, or they are just a bit old school.

To be fair to contractors, filing a mechanics lien, while in theory a straightforward process, can be challenging to get right. The location and type of project can change the rules of the lien, and making a mistake can be incredibly costly even a small error can invalidate a contractors right to payment.

If contractors believe the risk or complexity of filing a mechanics lien is too great, they may be content to wait and hope for a natural resolution to payment issues.

Unfortunately, waiting too long to secure the right to payment can put contractors in a difficult position. Taking a contractors word that payment will come can be risky, according to Viator.

If a contractor is promised payment and strung along for too long, they can miss key deadlines for filing a mechanics lien, said Viator.

Contractors dont have forever to file a lien: While the deadlines vary by state, contractors generally have three months to a year after work completion to file.

Many states require a preliminary notice to be submitted prior to filing a mechanics lien. These are typically required to be submitted towards the beginning of a project, and if a contractor fails to do so, they will probably lose their right to submit a mechanics lien later on.

But in 2021, only half of contractors reported filing a notice on every job (up from just 29% in 2020).

If a contractor didnt file a mechanics lien, its possible they were late to submit the required notices, or never sent them at all, said Viator.

Preliminary notices are an effective tool to mitigate payment risk, but whether or not to submit a preliminary notice can be a tough decision for contractors.

Some contractors may think filling a preliminary notice will upset other parties, said Viator. They might also choose not to send notices unless theres actually a payment issue at hand.

To make things more problematic, notice laws vary by state and can be quite restrictive in Florida, for instance, a contractor has just 45 days from the start of a project to submit a preliminary notice.

Some contractors may also believe they never had any lien rights in the first place, said Viator. They may have misunderstood the rules or contract, or thought there was an enforceable No Lien Clause.

Whatever the ultimate reason for not filing a mechanics lien, contractors do themselves a major favor by factoring in notices and mechanics liens in their payment processes. Mechanics liens, which are for the most part bankruptcy-proof, allow contractors to secure their debt and protect their right to payment.

Whether or not the dozens of creditors involved in the bankruptcies of Performance Paving and Midwest Wind and Solar will be able to collect payment in full is unclear.

In both cases, liquidated assets will not be enough to make up for the liabilities. If the remaining unsecured debt is discharged, creditors may simply be out of luck.

Learn more: How to Protect Your Payments When Dealing with a Construction Bankruptcy

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Recent Construction Bankruptcies Highlight Importance of Securing Right to Payment - Levelset

Steve Strauss| Special to USA TODAY

Q: From reading your columns, I see that you used to be a bankruptcy attorney. For various reasons, my business has accumulated a lot of debt. But the thing is, I dont want to file bankruptcy. Any other suggestions?

A: Too much debt can definitely make life and business very difficult. But you will notice I said, too much debt. I say that because one thing I also know is that not all debt is bad debt. If you took on some debt to fund a profitable expansion, for instance, that is good debt. If, on the other hand, that expansion went south and you charged a week-long trip to Hawaii, that, needless to say, is bad debt.

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So, what do you do when you have too much bad debt? Essentially, you have four options:

Of course you would like to pay your creditors in full, but sometimes, that is not possible. Rather than just walk away from the debt then, it is usually best to try and work out some sort of payment arrangement with the creditor. Maybe they can give you more time to pay, or lower your payments, or even cut the principle.

You dont know until you ask, and especially if you are behind in your payments, you may find the creditor is far more amenable to a negotiated settlement than you may realize.

If the debt is so overdue that it has been sold to a collection agency, you actually are in better shape vis--vis a settlement. Why? Because the collection agency bought the debt at a steep discount, maybe 10 or 20 centson the dollar. As such, anything over that amount is profit. Like I said, that is good news for you insofar as negotiating a deal, but bad news for your credit rating (thats a different column.)

So what you can do is call up the collection agency and look to strike a bargain.

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Offer them, say, 40 cents on the dollar. They may say no, tell you are crazy, whatever. But if you can get together a lump sum payment of, say, 50% of the total or so, and offer that, you just may find they are very willing to listen to that offer.

But as I said, the key is to 1) have a lump sum payment ready, and 2) be willing to suffer the consequences on your credit rating.

If they do agree to terms, make sure that you get all relevant terms in writing, especially that they will agree to consider the debt paid in full and will report it to the credit agencies as such.

True, no one wants to file bankruptcy papers, but I would be remiss if I did not go over this option.

Depending upon your goals and your desired outcome, you could file a Chapter 7, 11, or 13 bankruptcy. A Chapter 7 wipes out most debt, but is also called a liquidation for a reason:you may have to close the doors to your shop and the bankruptcy trustee would then liquidate your assets to pay your creditors at least something. A chapter 11 or 13 is a type of reorganizations whereby you repay some of what you owe over time, but get to keep the doors open. Speak to your lawyer to see which may be best for you.

Let me also note however that the only time I ever received thank-you notes when I practiced law was from former bankruptcy clients. Why? Because the relief from getting out of debt is that tangible.

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Again, depending upon your situation, this just might be the easiest. If you have few assets, most creditors wont waste their time and money suing an empty pocket.

No matter which choice you choose, it will definitely take you a few years to get a decent credit rating again, but in reality, that is just the cost of doing business sometimes.

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Small business and bankruptcy: What should you do when your company has too much debt? - USA TODAY

Darryl Robert Hewitson started his accountancy business in Invercargill in 1997. He later became ill with pulmonary sarcoidosis, which adversely affected his ability to work. Photo / 123rf

A piece of paperwork has cost an Invercargill accountant who was adjudged bankrupt his home.

Darryl Robert Hewitson started his accountancy business in Invercargill in 1997. He later became ill with pulmonary sarcoidosis, a respiratory complaint, which adversely affected his ability to work.

In a judgment released by Justice Rachel Dunningham yesterday, it says in 2009 Hewitson was served with proceedings by some of his clients.

Hewitson owed a total of $412,038.53 to six claimants including costs and disbursements.

The outstanding amount still owed to creditors is $337,123.28 plus the assignee's unrecovered time costs of $15,987.42 and outstanding disbursements of $19,413.12.

On November 18, 2009, Hewitson was adjudicated bankrupt in the High Court at Invercargill.

An insolvency officer wrote to him the following day advising him of his obligations including the need to file a Statement of Affairs within 10 working days.

Despite repeated requests and the officer reminding Hewitson his three-year bankruptcy period would not commence until the statement was received, he failed to file it.

In April 2010, Hewitson's mother bought his Regent St property for $180,000 and in May of the same year he said he sent the Statement of Affairs to the assignee. However, it was never received by the assignee's office.

Hewitson was gifted $250,000 from his father in 2014 and he used $165,000 of it to buy his former home, believing he was already discharged from bankruptcy.

In March 2018, Land Information New Zealand notified Hewitson a caveat had been lodged against his property by the assignee.

"When he contacted the office of the assignee, he was told that they had not received his Statement of Affairs and he remained an undischarged bankrupt."

It was not until April 2021, three years after he completed another statement, he was automatically discharged from bankruptcy.

The High Court appeal heard in the Invercargill District Court on December 13 wasfor Hewitson to seek judicial review to stop the sale of his property citing the assignee failed to have regard for all relevant circumstances including the conditions under which he reacquired the property and the changed circumstances of the creditors.

Hewitson's review of his creditors showed some appeared not to be trading, or were in the process of being removed, one business owner had died, and after a conversation he had with one in September 2021, he did not believe the man had any interest in recovering monies.

Justice Dunningham said he had considered Hewitson's interest in remaining in his home due to his ill health and the misunderstanding he believed he was already discharged.

"Notwithstanding this he is in possession of a substantial after-acquired asset while his creditors have only received 25c in the dollar in payment of their claims.

"In all fairness I believe we should be proceeding to sell the property again."

Justice Dunningham dismissed Hewitson's application.

Read more:

Invercargill man's bankruptcy confusion leads to loss of home - New Zealand Herald

Millions of people have gotten a break from paying their federal student loans during the pandemic. But there's been no relief for millions of others with private student loans who may not realize bankruptcy could be an option.

"For folks that have lost their jobs during the pandemic that are struggling for money that are still struggling to stay afloat, bankruptcy might be the best option for them," said Mike Pierce, the executive director of the Student Borrower Protection Center. "Particularly, if they're already going to file bankruptcy because of medical debt or credit card debt, being able to escape these often very high-interest rate private student loans is a lifesaver."

The Student Borrower Protection Center estimates $50 billion in private student loans taken on by more than 2.6 million borrowers is eligible to be discharged in bankruptcy.

"Our investigation found evidence that for years, big and small companies across the country have been telling borrowers that they're not eligible to discharge their loans and bankruptcy, while also telling their investors that law actually says you can discharge these in bankruptcy," Pierce said.

Navient, a loan servicer and a group of 39 state attorneys general, recently reached a nearly $2 billion settlement. The servicer is denying any wrongdoing.

Attorney Christie D. Arkovich has been helping people file for bankruptcy with their student loans since 2016 but says only a small number of people are aware bankruptcy is an option.

"Normally when we have a client come to us they're either in default on a student loan, or they're making payments and it just not making any headway," Arkovich said. "So the people who this wouldn't be for people who can easily afford their loans. Most of our clients cannot afford their loans. They're there another mortgage payment, basically."

Arkovich's clients range from people in their 30s to people in their 60s. Most have student loans with high-interest rates from the mid-2000s.

"We had a client who owed around $130,000, and so when she first came to me, she was paying $1,300 dollars a month, and it was interest only," Arkovich said. "So, she realized this is a forever debt. She's not making a dent in it, it's never going away. So, we reopen an older bankruptcy and we ended up settling that for $24,000, so that was less than, what, 20, 22 cents on the dollar for payments very, very low."

Arkovich says one of the biggest concerns for the people she works with is how a co-borrower on the student loan will be affected. The settlement can work out so that the servicer won't go after that person.

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Bankruptcy may be an option for those with high-interest student loans - The Denver Channel

Soaring natural gas prices have contributed to the closure of 20 egg farms and 10 broiler farms in Ukraine, Sergey Karpenko, general director of the Ukraine poultry union, said during a press conference in Kyiv.

Photo: Tetiana Shevereva

In early 2020, Ukrainian poultry producers had to spend on average 1.6 hryvnias (US$0.059) to produce 1 kg of broiler meat. In early 2021, this figure increased to 2.11 hryvnias (US$0.075), jumping to 6.4 hryvnias (US$0.23) in December, Karpenko said, adding that this increase is coupled with a sharp rise in the price of feed.

He added that small and medium-sized poultry producers are at risk of closure due to the price hike. Currently, Ukraine exports 30-40% of the produced broiler meat and eggs. However, the further rise in production costs is likely to make Ukraine exports uncompetitive on the global market, which would hit the entire poultry industry, he added.

It is believed that small and medium-sized poultry farms account for 25-30% of Ukraines poultry production.

Over the course of 2021, European wholesale gas prices rose by more than 400%, setting new records. In early January, European gas prices jumped after the breakdown in security talks between Russia and the US deepened concerns about supplies. The picture is believed to be similar across Eastern and Central Europe, where harsh winter conditions prompt poultry farmers to spend more money on heating.

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"Poultry companies use gas at fattening complexes. The process [of growing poultry] takes 1.5-2 months, during which it is necessary to maintain a certain temperature at the poultry houses," said Alexander Bakumenko, chairman of Ukraines poultry union, adding that previously, natural gas accounted for 5% of production costs, but now this share stands at 30%.

As estimated by Bakumenko, this situation could push poultry farmers to raise prices by 15-20 hryvnias (US$0.53-US$0.71) to offset losses. However, he warned, this would be bad for both domestic consumption and export supplies.

Not only did poultry producers raise concerns over the rising price of natural gas. Ukraine dairy processing plants may have to stop operations in case of a further rise in prices, the Ukraine Union of Dairy Companies said, estimating that natural gas accounts for roughly 25% of production costs.

In this background, the Ukraine government has rolled out plans to limit the price of natural gas on the market, but so far, this proposal covers only bread producers.

Read more:

Costly gas drives Ukraine poultry production to bankruptcy - Poultry World

The Montana Department of Revenue says it's immune from claims that it waged a bankruptcy battle that caused former billionaire Timothy Blixseth hundreds of millions in losses.

Photo by Mario Tama/Getty Images

Jan. 26, 2022, 8:45 PM;Updated: Jan. 26, 2022, 10:11 PM

The Montana Department of Revenue says its immune from claims that it waged a bankruptcy battle that caused former billionaire Timothy Blixseth hundreds of millions in losses.

Although the state partially waived its sovereign immunity to participate as a creditor in Blixseths involuntary Chapter 7 bankruptcy proceedings, it hasnt consented to be a defendant under the jurisdiction of the U.S. Bankruptcy Court for the District of Nevada, it said in a filing Tuesday.

That immunity should protect Montana from facing Blixseths Dec. 23 lawsuit, which accuses the Department of Revenue of bad faith by continuing to pursue the bankruptcy ...

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Montana Vies to Ax Suit Over Businessman's Involuntary Bankruptcy (1) - Bloomberg Law