Over the past year, our attorneys have explored numerous insolvency topics affecting real estate. Together, the alerts in this series tackle many facets (and potential applications) of the Bankruptcy Code as potential balm and bane for owners, landlords and lenders trying to navigate a landscape made exponentially more treacherous by COVID-19.

  1. A Single Asset Bankruptcy from the 1990s Gains New Relevance during COVID-19 (4.7.20)
    Patrick J. Potter and Dania Slim look back a few decades at a case that could provide lessons for real estate projects with no or severely reduced cash flow (a condition many projects find or will find themselves in due to the impact of COVID-19).
  2. Navigating Bankruptcy Exposure for Landlords Arising from Anticipated Lease Terminations During COVID-19 (4.17.20)
     Patrick PotterChristian BuergerDania Slim Melissa Pettit examine lease terminations and how they may have unintended consequences for landlords. We conclude with a discussion of potential strategies for landlords.
  3. How Chapter 11 Solved One Multifamily Condo Regime’s Dual Challenges of Mounting Liabilities and Unpaid Dues (4.24.20)
    Patrick PotterDavid Miller and Dania Slim turn our attention to condominium associations with mounting liabilities who are looking for creative solutions to their financial problems.
  4. Personal Guaranties May Not Deter Property Owner Bankruptcies (5.1.20)
    Patrick PotterJoshua MorseDeborah Baum and Dania Slim evaluate whether the existence of personal guaranties are likely to deter property owner bankruptcies
  5. Bankruptcy Blockers in Governance Documents May Not Prevent Real Estate or Other Bankruptcies (5.7.20)
    Patrick PotterDania Slim and Kimberly Mann evaluate whether bankruptcy blockers in a debtor’s governance documents are likely to deter bankruptcies, and the likelihood of success of a motion to dismiss the bankruptcy case based on such blockers.
  6. Court Holds COVID-19 Executive Order Triggers Lease’s Force Majeure Clause, Excusing Some Rent Obligations (7.16.20)
    David MillerPatrick PotterJessica  Lee and Katherine Sauter evaluate the decision, In re Hitz Restaurant Group, where the Bankruptcy Court ruled that the Illinois Governor’s Executive Order, temporarily barring on-premises food service and consumption, triggered the force majeure language, thereby partially absolving the tenant-debtor from paying its rent.
  7. The Letter of Credit Conundrum: When a Debtor’s Default May Be Preferable to Its Late Payment (8.19.20)
    Patrick PotterDavid Miller and Dania Slim discuss the preference exposure to a landlord or other creditor that arises when the debtor makes a payment to the landlord or other creditor during the 90 days before its bankruptcy, which payment falls outside the parameters of the lease or other contractual relationship, and where a letter of credit supporting the debtor’s obligations expires after the bankruptcy (but before the landlord or creditor receives a demand for return of the preferential payment).
  8. Bankruptcy Court Rules Bankruptcy Code Does Not Permit Extended Rent Holiday for Retail Debtors (1.11.21)
    Patrick PotterPatrick Fitzmaurice and Kwame Akuffo discuss the portion of the recent Chuck E. Cheese decision denying the debtor’s/tenant’s request to defer paying rent after the 60-day “rent holiday” period prescribed in section 365(d)(3) of the Bankruptcy Code.
  9. Bankruptcy Court Denies Retail Debtor’s State-Law Based Arguments to Avoid Paying Rent During Chapter 11 (1.19.21)
    In part two of our discussion of the recent Chuck E. Cheese decision, Patrick PotterPatrick FitzmauriceBrian Beckerman and Kwame Akuffo examine how the bankruptcy court rejected the debtor’s efforts to defer and avoid paying rent during and after the initial 60-day period of the case.
  10. Bankruptcy Code Amendments Aimed at Allowing Extended Rent Holidays for Small Business Debtors Pose More Questions than They Answer (1.26.21)
    Patrick PotterPatrick Fitzmaurice and Kwame Akuffo discuss recent changes to section 365(d)(3) of the Bankruptcy Code under the Consolidated Appropriations Act, 2021, signed into law on December 27, 2020.
  11. Negative Amortization Chapter 11 Plans as a Potential Bridge Over the Economic Recovery Gap (2.23.21)
    James Dickinson
    and Patrick Potter discuss the potential for hotels responding to the impact of COVID-19, particularly those with meaningful equity and presently depressed revenues, to confirm three-to-four-year reorganization plans that negatively amortize the mortgage debt while the debtor reestablishes its occupancy rates and revenue streams.
  12. Court Finds Pandemic Does Not Satisfy Lease’s Casualty Clause (03.31.21)
    Patrick J. Potter
    , Christian A. Buerger, Hugh M. McDonald, Patrick E. Fitzmaurice and Jonathan Doolittle discuss a new case from the Southern District of New York that extends the trend of courts enforcing leases against tenants forced to close due to the impact of the COVID-19 pandemic.