mDugan

Michael Dugan

Michael Dugan

Michael Dugan is Counsel with the law firm of Macey, Wilensky & Hennings, LLC. Prior to his current position, Michael was a Senior Partner with McCurdy & Candler, LLC, where he managed the firm’s secured real estate initiatives, title insurance, and settlement functions.  His experience includes financial service experience, asset liquidation, real estate settlements, title development, litigation, financial lending, and treasury functions.  Michael is an Authorized Agent First American Title Insurance Company.  He has both spoken and served as a panelist at numerous default related conferences and title insurance industry programs.  Michael has also spoken at the Georgia Institute for Continuing Legal Education.  Additionally, Michael has been appointed a Special Assistant Attorney General by the State of Georgia and advises the Department of Community Affairs.

Prior to his experience at McCurdy & Candler, LLC, from 1997-2002, Mr. Dugan served as Vice President of Legal and Treasury for Homestead Village Inc., a hotel REIT, where he managed the hotel’s corporate assets, credit facilities and hotel portfolio.  Michael served as a corporate officer, which required his oversight of all hotel and corporate assets.  He also represented the company’s interest in the successful sale and merger of Security Capital Group’s ownership interest to the Blackstone Group.  Michael marketed, negotiated and sold a 26-hotel portfolio netting the company over $88.1 million, in addition to directing multi-site borrowing initiatives.  He negotiated numerous portfolio credit facilities, created disposition strategy to sell $31.4 million of land held for development as a part of a restructuring of the companies asset position and he negotiated and monitored an 18-hotel sale-leaseback facility.  Michael also completed the development of three hotel sites, resident in Chicago and New Jersey, with a capital budget of $12.5 million per hotel.  Michael’s responsibilities also included management of corporate, property liability, construction and entitlement litigation.  He created and oversaw budget for the Legal and Treasury department, negotiated and drafted purchasing, revenue management and telecommunication service contracts, as well as advised and supported the operations group in numerous projects aimed at loss prevention/maintenance and cost reduction.

From 1996-1997, Michael worked at Hale & Cox, P.C., a firm dedicated to real estate and banking, where he advised lending institutions on the collateralization process, as well as regulatory requirements.  Other work included Small Business lending initiatives and 1031 exchange transactions. 

From 1993-1996, Michael worked as a real estate and litigation attorney for the FDIC, representing the Division of Asset and Depositor Services.  Michael dedicated his efforts to rendering legal opinions on all aspects of failed bank issues, which accounted for an approximate $17 million in cash recoveries for various receiverships.  He negotiated and drafted agreements in connection with the disposition of bank assets, including retail, office and multi-family properties.

Michael graduated from Berry College in 1988 and from the University of Georgia School of Law in 1991.

Surden

Todd H. Surden

Todd H. Surden

Todd H. Surden represents commercial and residential mortgage lenders, creditors, receivers, and landlords at the trial and appellate level in both state and federal courts in Georgia.  Todd has extensive experience litigating foreclosure sale confirmation actions, pursuing and defending title curative, quiet title, and lien priority claims, defending condemnation and takings claims, litigating landlord/tenant matters, and defending mortgagees against various state and federal lending, banking, and mortgage loan servicing statutes and regulations.  He is well-versed in all aspects of foreclosure and collection law in Georgia and routinely advises clients on title insurance coverage matters and regulatory compliance issues.

Todd is an active member of Congregation Etz Chaim in Marietta, serving as its Executive Vice President.  He was named as one of The Atlanta Jewish Times 40 Under 40 Jewish leaders in 2014, is involved in the Atlanta Black-Jewish Coalition, and served as Secretary of the Cobb County Bar Association, Young Lawyers Division.

Todd graduated cum laude from the Villanova University School of Law and received Bachelor’s degrees from Columbia University in New York and the Jewish Theological Seminary as part of a dual-degree program.  He is admitted to practice law in Georgia, Pennsylvania (inactive), and New Jersey (inactive).

Macey, Wilensky & Hennings LLC Profiled in Georgia’s Legal Leaders Magazine

January 14, 2014 – Macey, Wilensky & Hennings, LLC was recently profiled in the 2014 edition of Georgia’s Legal Leader’s Magazine as one of the preeminent boutique law firms in the state.  Legal Leaders is published once a year and features the top law firms and attorneys.  It appears in The Wall Street Journal and The Atlanta Journal-Constitution as well as The National Lawyer, Daily Report, The National Law Journal and other nationally recognized periodicals. A direct link to the magazine can be found here:   http://pdfserver.amlaw.com/law/georgia_TRL.pdf

Macey Wilensky Partner Joshua Katz Selected As One Of The Top 40 Under 40 Attorneys In Georgia

December 18, 2013 – Macey Wilensky is proud to announce Joshua M. Katz has been named by the American Society of Legal Advocates (ASLA) as one of the Top 40 Under 40 lawyers in the state of Georgia for 2014.

This honor is given to less than 1.5% of attorneys nationally and is extended to individuals who demonstrate superior talent, results and leadership as a lawyer under the age of 40.

Todd Hennings Conducts Seminar “Before You Pay….”

Todd Hennings conducted a legal education seminar entitled “Before You Pay…” for the Georgia Defense Lawyers Association on March 20, 2013. The seminar addressed the ability of trustee’s and individuals to file lawsuits in bankruptcy cases. When a bankruptcy case is filed, there are significant issues concerning who can and should bring lawsuits involving the debtor. “Before You Pay…” cautioned attorneys to make sure they were dealing with the correct parties before they negotiate a settlement of claims.

Presented by: Todd E. Hennings

Macey, Wilensky, Kessler & Hennings, LLC

I. Introduction

You represent an insurance company that provides the insurance for Mr. Jones. Mr. Jones recently drank a little too much at a St. Patrick’s Day party, got behind the wheel of a car, and collided head on with Mr. Smith’s car; Mr. Smith was killed. Mr. Smith left behind a lovely stay-at-home wife and two kids and was the sole paycheck for the family. Mrs. Smith sues Mr. Jones and your client for wrongful death, future earnings, and emotional distress; however, Mrs. Smith finds herself financially strapped for cash and files for Chapter 7 bankruptcy protection. At the time of her filing, you were in the middle of negotiating a settlement with her attorney, but had not finalized anything. What should you do?

Same basic facts, but while you are defending the claims, you learn that after the accident, the plaintiff filed a bankruptcy case. The plaintiff got her discharge and the bankruptcy case was closed. Knowing this, what should you do? Who do you deal with regarding the claim? Since the bankruptcy case is no longer pending, does it make a difference at all to what you are doing?
These sets of facts are common in bankruptcy cases, but the answer to these questions is not always easy to find. In our examples, we have presumed that the plaintiff/debtor is an individual, but the principals involved apply to any kind of claims that the plaintiff/debtor may have regardless of the Chapter of the Bankruptcy Code involved, and regardless of whether the plaintiff/debtor is an individual or artificial entity (corporation, partnership, etc.). Finding the answer involves delving into what are, at their heart, Constitutional questions. There are two main issues: Standing – now that the plaintiff has filed a bankruptcy case, who can properly bring the action; and Estoppel – what happens when the plaintiff does not list his/her/its claim in the bankruptcy case. Not knowing how to address the impact of a bankruptcy case on your case can result in increased liability for your client and possibly yourself.

II. Standing – Making Sure You are Working with the Right Person

One of the biggest issues confronting litigants when one side files for bankruptcy during the litigation (or before) is who do you deal with now, and how can you turn this development to your client’s advantage? Who is this trustee person? What is a DIP?

A. Brief Bankruptcy Overview

An individual or business can file for bankruptcy protection under 11 U.S.C. § 101 et. seq. The three main chapters are 7, 11, and 13. An individual or business can file a 7 or 11, while only an individual can file for protection under chapter 13. Regardless of whether it is an individual or a business, when they file, an estate is formed containing all of the debtor’s assets (and liabilities). 11 U.S.C. § 541. What belongs to the estate is essentially all of the debtor’s non-exempt property. What continues to belong to the debtor is provided for under state law in the statutory list of exempt property. The debtor and the estate are therefore not one and the same, and understanding this is the first step in understanding who is the proper party to pursue a lawsuit against your client.

The rules concerning property of the estate are straightforward in the language of the statute, but can be complex in application. In order to prevent us from making this into a treatise, we will try to generalize without going into all of the exceptions and possible permutations of the rules. Suffice it to say, once you have identified an issue in your litigation pertaining to a bankruptcy case, stop where you are and take stock of the situation. The ultimate resolution to your situation will, however, involve the issues we are discussing.

Generally any causes of action known or that should be known at the time of filing become part of the estate. Section 541(a) defines what constitutes property of the estate – including “all legal or equitable interest of the debtor in property.” 11 U.S.C. § 541(a)(1). Moreover, under 11 U.S.C. § 362(a)(3) “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate” is stayed. Since the debtor and the estate are separate, if the cause of action is considered property of the estate, then the debtor may be stayed from exercising control over the cause of action. It depends upon who is authorized to manage the estate’s assets under the relevant Chapter of the Bankruptcy Code. Typically, there are two scenarios. Where the debtor remains in possession of the assets and administers the assets in a fiduciary capacity for the benefit of the estate and its creditors (Chapter 11), and where a trustee is appointed as a fiduciary for the benefit of the estate and its creditors (Chapters 7, 13 and for cause in a Chapter 11 case). If the debtor/plaintiff in your litigation is not the proper party to pursue claims on behalf of the bankruptcy estate, then the debtor/plaintiff will not have standing to resolve the issues with you, cannot bind the estate and its creditors to the resolution you reach (by trial or settlement), and may in fact leave your client open to multiple sources of liability for the same or similar claims.

B. Standing – Who can bring what claims?

I have heard it said by judges addressing the issue of standing that it can involve deciding how many angels can dance on the head of a pin. As difficult as it can be in some cases, in order to keep your client from facing multiple potential liabilities it is an exercise you have to go through whenever a bankruptcy case is involved.

i. The Debtor’s Standing

Returning to our hypothetical with Mr. Jones and Mrs. Smith, the first question you need to find out is – who has standing to continue to prosecute this case? Is the cause of action one that belongs to the estate, or since Mr. Jones is an individual, are the claims exempt under relevant state law?
O.C.G.A. § 44-13-100 provides for various exemptions a debtor can take to keep certain property out of the hands of creditors, or in the case of bankruptcy, out of the estate. O.C.G.A. § 44-13-100(11)(B), (C), (D), and (E) allows for a debtor to exempt compensation for wrongful death to the extent necessary for support; loss of future earnings to the extent necessary for support; and up to $10,000 in personal injury payments. Additionally, life insurance payments are exempt to the extent necessary for the debtor’s support and the debtor can further exempt up to $250 in monthly income benefits and all other proceeds of accident and sickness policies, including group or blanket policies and disability benefits provided under life insurance policies. O.C.G.A. § 44-13-100(8) and (9). Remember, the debtor is required to list the claim on the debtor’s Schedule of Assets and list it as exempt property. The trustee may investigate the claim and challenge the debtor’s claim of exemption. Until the exemption claim is decided the issue as to whether the claim belongs to the debtor or the trustee is up in the air.

In the case of Mrs. Smith, her claim may be exempt from becoming property of the estate under the Georgia exemption statutes and therefore, Mrs. Smith would be the proper party to continue proceeding in the action against Mr. Jones. However, the statue in this case is not absolute, but rather restricts the exemption “to the extent necessary for support.” So, the estate may indeed have an interest in the claims. The best course of action is to reach out to the trustee in the bankruptcy case, as the representative of the estate. The debtor and the trustee may have very different opinions on the issue of liability and resolving the issues with the debtor may be only half the battle. If the debtor is not the proper party to bring the claims on behalf of the estate, the debtor cannot bind the trustee or the estate to any resolution of the claims.  As mentioned, exemptions only come into play in the case of individuals. If the debtor is not an individual, any causes of action will be property of the bankruptcy estate. If the debtor in a chapter 7 case is an artificial entity, the trustee will always have standing to pursue claims of the estate. In a chapter 11 case, the debtor acts as a debtor-in- possession and has almost the same powers as a bankruptcy trustee. In re Diabetes America, Inc., 485 B.R. 340 *5 (Bankr. S.D.Tx. 2012). This includes causes of actions arising pre-confirmation. Id. This means that unless there is a trustee appointed, the debtor-in-possession will have the authority to pursue and resolve causes of action. The debtor-in-possession will pursue these claims for the purpose of adding the recoveries to its distribution to creditors under a plan of reorganization. However, once a Chapter 11 plan is confirmed, the estate is dissolved. Unless the debtor specifically reserves the ability to continue litigation under a plan, the debtor in possession will lose standing to pursue claims even if the debtor in possession had proper standing from the start. “After confirmation, the debtor is no longer the debtor-in-possession and does not have the authority to pursue claims previously owned by the estate – unless those claims were properly retained pursuant § 1123(b)(3)(B).” Id. (referencing In re United Operating, LLC, 540 F.3d 331 (5th Cir. 2008)) (emphasis added). Unless the debtor makes an effective reservation in its chapter 11 plan, then the debtor has no standing to pursue a claim that the estate owned before it was dissolved. In re United Operating, LLC, 540 F.3d at 335. Therefore, knowing what chapter the debtor is in is also important for knowing who has standing to address causes of action – in chapter 7, unless property is exempt it is the trustee and in chapter 11 it is the debtor-in-possession. It is also important to know the status of a case because that will affect the party’s standing – post-confirmation or closing of the case, the trustee and the debtor lose their standing. However, as will be discussed below, the trustee can move to re-open a case to administer an undisclosed claim.

ii. A Creditor versus the Trustee

Apart from the issue of whether the debtor or a trustee is the proper party to bring a lawsuit, creditors may also contest with the debtor or the trustee as the proper plaintiff to bring lawsuits against your defendants. Creditors may decide, often correctly, that from an economic standpoint they are better off bringing a lawsuit themselves than just waiting in line with other creditors for a distribution from a bankruptcy estate. Creditors may also be motivated more by a desire to extract a pound of flesh from those they see as responsible for the debt – officers, directors or affiliated companies. A bankruptcy case may impact even what would otherwise be third party claims not directly involving the debtor. In the business context, a common issue arises when a creditor of a debtor sues a non-debtor third party in order to collect the creditor’s claims that would otherwise be against the bankruptcy debtor. Since the trustee in bankruptcy has standing to pursue claims on behalf of the estate and in certain circumstances it creditors, depending on the basis of the suit, the creditor may actually lose its standing to the trustee or debtor in possession.
For example, let us imagine a hypothetical business – Ace Co. – which builds widgets. Ace Co. went to creditors A, B, and C and obtained parts for the widgets. Creditors A, B, and C kept a running account with Ace Co. and therefore, all were owed money for the parts. Ace Co. then transferred all the parts to an affiliated entity Base Co for no consideration. Ace Co. fails to pay its creditors. Creditors A and B learn of the asset transfers and sue Ace Co. and Base Co. in an attempt to recover the transferred property under a theory of fraudulent conveyance. Ace Co. files for bankruptcy.  In this instance, Ace Co.’s bankruptcy filing would seem to not effect creditors A’s and B’s lawsuits against Base Co. because neither creditors A or B, nor Base Co. are in bankruptcy. However, the lawsuits are attempting to recover property of the debtor Ace Co. or associated damages for the value of the property.

The trustee in bankruptcy has sole standing to pursue lawsuits based on the transfer of assets of the bankruptcy estate and to attempt to recover the assets on behalf of the estate and its creditors. In this case, once the bankruptcy is filed the creditors pursuing Base Co. cannot proceed. See generally Kerr v. Commer. Credit Group, Inc. (In re Siskey Hauling Co.), 456 F.R. 597, 608-09 (Bankr. N.D. Ga. 2011); In re C.D. Jones & Co., Inc., 482 B.R. 449, 457 (Bankr. N.D.Fla. 2012) (citing In re Moore, 608 F.3d 253, 261 (5th Cir. 2010)); In re Zwirn, 362 B.R. 536, 539 (Bankr. S.D. Fla. 2007). The causes of action belong to the trustee, and the trustee may move to stay any pending lawsuits, remove them to the Bankruptcy Court, or simply demand that the creditors cease the litigation or face a damages claim for violation of the automatic stay of 11 U.S.C. § 362.

The trustee may settle or resolve the litigation as an asset of the estate regardless of whether the claims were first brought by a creditor, and the creditors must look to the estate and not the third party defendants for payment of their claims.  However, to establish the limits of the trustee’s standing to pursue creditor claims, let’s assume that in obtaining the parts from creditor A, Ace Co.’s President personally provided a false financial statement to creditor A to reassure creditor A about Ace Co.’s business success. Ace Co.’s President also happens to be on the Board of Directors for Base Co. So, now creditor A is not only seeking to undue a fraudulent asset transfer, but prior to the bankruptcy filing sued Ace Co., Ace Co.’s President, and Base Co. for actual fraud. What happens now?

In this example, the creditor is not only suing to recover assets, which claims we know belong to a trustee, but is also suing based on damages due to actual fraud committed by the President and Base Co.  Courts have distinguished this from the above fraudulent transfer example and held that creditors may pursue these claims without having the trustee preempt the creditors’ standing.  A creditor can have standing to sue if the creditor can show that its facts supporting its causes of action are direct and particularized, meaning that no other creditor can show the same injury based on the same facts.

In The 1031 Tax Group, the court considered the various lawsuits filed by creditors in state court, each in turn and stated that “[t]o determine standing, the Court must look to the underlying wrongs as pleaded in the complaint and whether the plaintiff alleges a particularized injury.  Johns-Manville, 517 F.3d at 63; Granite Partners, 194 B.R. at 325 (“To determine standing, the court must look to the nature of the wrongs alleged in the complaint without regard to the plaintiff’s designation, and the nature of the injury for which relief is sought.”). The Court therefore only looks to the allegations as they are stated in the complaint, not as they are characterized in the plaintiffs’ motion before this Court. [citations omitted]. The Court does not pass on the legal sufficiency of the claims. [citations omitted].  McHale v. Alvarez (In re The 1031 Tax Group, LLC), 397 B.R. 670, 679 (Bankr. S.D.N.Y. 2008) (emphasis added).

In analyzing the specific complaints filed by the creditors, the court noted that it must look to see if the injuries are first, direct or indirect. Id. at 682. In situations where the defendants engaged in fraudulent misrepresentations directed specifically at the plaintiffs, then the creditors were able to show a direct injury and standing to sue. Id. at 680-83. Where claims by plaintiffs were derivative in nature – indirect – these claims belonged to the trustee. Id. at 680-681.  In simpler terms – if the creditor can show that the defendant’s actions were specifically directed to that creditor, then the creditor, not the trustee would have standing to sue. If, however, the creditor was injured in a way that was no different than another creditor of the debtor, then the trustee has standing to bring the action.

It is important to not think of the issue of who may bring a lawsuit as a zero sum game. This is the most common mistake in approaching the issue.  If the trustee cannot bring a lawsuit, this does not mean that creditors can by default.  Standing is an independent inquiry that either stands or falls on its own merits for each plaintiff.  If the trustee has standing but is barred from bringing a suit, by statute of limitations or some other equitable bar to recovery, the lawsuit will not fall into the hands of a creditor by default.  If the trustee had the standing to bring a lawsuit, but is barred, no party can bring the lawsuit.

A good example of this principal in action is the impact of the equitable defense of in pari delicto (“unclean hands”). See e.g. Moratzka v. Morris (In re Senior Cottages of America, LLC), 482 F.3d 997 (8th Cir. 2007).  In the Moratzka case, a trustee brought a malpractice claim against a law firm for damages based on a claim for malpractice, later including claims for aiding and abetting a breach of director and officer fiduciary duty and negligence. The bankruptcy court stated that the trustee could not bring the aiding/abetting and negligence claims, based on the doctrine of in pari delicto, reasoning that the trustee stood in the shoes of the debtor and the debtor could not bring the lawsuit itself.  Id. at 1000. On appeal, the district court affirmed, reasoning that the trustee’s action belonged to the creditors, rather than the trustee.

On subsequent appeal, the Eighth Circuit engaged in an extensive analysis of the constitutional basis for standing and whether the doctrine of in pari delicto factors into questions of standing.  The Court found that the equitable defense of in pari delicto has absolutely nothing to do with constitutional questions of standing.  Id. at 1003-04 (citing Official Comm. Of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 346 (3rd Cir. 2001) (“Whether a party has standing to bring claims and whether a party’s claims are barred by an equitable defense are two separate questions, to be addressed on their own terms.”); Official Comm. of Unsecured Creditors v. Edwards, 437 F.3d 1145 (11th Cir. 2006) (holding that trustee had standing, but federal claim was barred by in pari delicto and state claim for aiding and abetting breach of fiduciary duty was not cognizable under Georgia law); Baena v. KPMG, LLP, 453 F.3d 1, 6-10 (1st Cir. 2006) (trustee’s case barred by in pari delicto, but that doctrine “has nothing to do with Article III requirements.”); [further citations omitted]).  Accordingly, where the trustee was the proper party to bring the lawsuit due to the trustee’s official role as representative of the estate and its creditors, but could not, the lawsuit could not be brought by anybody.

The Court reasoned that standing is one aspect of the constitutional requirement that courts may only decide cases or controversies. [citation omitted]. “To have standing, a plaintiff must allege an injury that is fairly traceable to the defendant’s conduct, and the requested relief must be likely to redress the alleged injury.” [citation omitted]. The existence of a defense to a cause of action does not deprive the plaintiff of standing . . . . The in pari delicto doctrine is a defense. [citations omitted]. Even if an in pari delicto defense appears on the face of the complaint, it does not deprive the trustee of constitutional standing to assert the claim, though the defense may be fatal to the claim.  Id. at 1004. Therefore, even if the trustee may not be able to seek redress of the debtor’s pre-petition claims due to various defenses, a creditor may still not have standing to sue independently.

So, what does this mean to an attorney defending a case where a bankruptcy case is filed?  A shrewd practitioner may argue on the one hand that an existing lawsuit cannot proceed because the trustee has become the proper party plaintiff to bring the claims, depriving both the debtor and the estate’s creditors of the ability to pursue the claims separately.  On the other hand, due to the trustee’s dual role of representative of the debtor and the creditors of the estate, a defendant may have additional equitable defenses available against claims brought by the trustee that would not bar creditors proceeding individually.  If claims can be successfully steered into the hands of a trustee, these additional equitable defenses may effectively bar litigation that otherwise would be viable.  Both the trustee and the estate’s creditors may be effectively prevented from pursuing claims.

On this basis, a defendant may seek to dismiss not only claims brought on behalf of a debtor estate, but also any claims that individual creditors may seek to bring that would otherwise be available to them as derivative claims under state law. Although rules of standing are often relegated to law school exams, and arguments may become somewhat esoteric for routine litigation, you should always consider this as a threshold issue whenever a bankruptcy case is concerned, no matter how tangentially it may seem initially. From a legal standpoint, if you settle and make payment to a plaintiff and it turns out that due to an intervening bankruptcy the initial plaintiff lost standing to sue, you will have made payment to the wrong person and may have to pay again.  Bankruptcy changes everything, and if you understand the underlying rules of standing you can manipulate litigation to the advantage of your client.

No panel is complete without a war story, and I will offer this one as an example about how knowledge regarding the rules of standing and how they are impacted by a bankruptcy filing can be used both offensively and defensively. I represented a creditor of a bankruptcy debtor. This creditor had done business with and subsequently purchased a struggling debtor’s assets, continuing to operate what had been the debtor’s business for some time before it, too, failed. When the business closed its doors, assets were stolen and vandalized and the creditors of the original debtor filed numerous lawsuits against my client alleging everything from successor liability to fraudulent conveyances based on the original asset purchase. My client faced half-a-dozen lawsuits in jurisdictions around the country as well as competing claims to a multi-million dollar insurance policy covering the assets.  After a time, the original debtor business was put into a bankruptcy case. The bankruptcy trustee added his claims against my client to the half dozen existing lawsuits.

The trustee had defects to his claims surrounding a statute of limitations, but knowing that the trustee had standing to pursue these claims, I also knew that he had the ability to deny standing to the other plaintiffs with lawsuits already pending. Rather than moving to dismiss the trustee’s lawsuit, I used it offensively as a vehicle to attack the claims of the other plaintiffs. I convinced the trustee to assert sole and exclusive standing concerning the transfers and transactions. I sought a “channeling order” from the Bankruptcy Court permanently enjoining the other plaintiffs from pursuing their claims and directing them to file claims with the bankruptcy estate. The Bankruptcy Court did issue such an order finding that the trustee had sole and exclusive standing to pursue claims by the estate and its creditors. Having obtained an order denying all other parties the ability to proceed individually and permanently enjoining the lawsuits, I proceeded to settle with the trustee based on a fraction of the total liability asserted in the multiple lawsuits – in part by using the trustee’s statute of limitations problems to drive down the settlement value.

The client paid less than ten percent of the total demands, recovered several million dollars in insurance proceeds and was able to dispose of litigation pending across the country – all by appealing to the bankruptcy trustee’s standing to bring claims on behalf of the estate and its creditors.

III. Estoppel – What Happens if the Cause of Action or the Asset is not Disclosed in the Petition?

Before entering into negotiations with a party, another factor to consider aside from standing is the possibility that the equitable defense of judicial estoppel may apply. As you can see from the above, the other party does not even have to have been a debtor in bankruptcy for the case to have an effect, but estoppel is a defense best suited to a former or current bankruptcy debtor.

Judicial estoppel is based on the notion that a party may not make a statement of fact in a matter and then change its version of the facts later to better suit its current circumstances. Judicial estoppel is based on a representation to a court, either through testimony or pleadings. If a party tries to later change its representation, the party may be estopped from alleging the new version of facts. In the context of a bankruptcy case, the debtor’s statement of financial affairs and schedules of assets filed in connection with the case are considered to be representations made under oath. Indeed, in an evidentiary sense, they are deemed to be admissions of the debtor.

If the debtor makes false statements in connection with the statement of financial affairs or the schedules of assets, not only is it considered to be perjury, it is also a bankruptcy crime pursuant to 18 U.S.C. § 152 and will provide the basis for application of judicial estoppel in a later matter to the extent that the later position is inconsistent with the contents of the documents filed in the bankruptcy case. Where judicial estoppel arises most often is when the debtor fails to list claims or causes of action in the statement of financial affairs or schedules of assets and later attempts to bring a lawsuit after the bankruptcy case has been closed.

Full and honest disclosure in bankruptcy proceedings is important – “it is ‘crucial’ to the [bankruptcy] system’s ‘effective function.’” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1274 (11th Cir. 2010) (citing Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002)). “The duty to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy court; rather the debtor must amend [their] financial statements if circumstances change.” Id. (quoting Burnes, 291 F.3d at 1286).  There is no distinction in chapter 7, 13, or 11 bankruptcies, as “the need for complete and honest disclosure exists in all types of bankruptcies.” Id. (quoting De Leon v. Comcar Industries, Inc., 321 F.3d 1289, 1291 (11th Cir. 2003)). Therefore, if the court finds that non-disclosure of a claim was advertent, the debtor may be barred from bringing the claim and, in individual bankruptcies, may have their discharge revoked.

Despite the fact that the debtor may be barred from bringing the claim, it is important to speak with the bankruptcy trustee.  Simply because a debtor is barred from bringing an action does not prevent the trustee from pursuing it for the benefit of the estate. In re McDowell, 2013 Bankr. LEXIS 610, *11 (Bankr. S.D.Tx. Feb. 14, 2013) (citing Reed v. City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011); Love v. Tyson, 677 F.3d 258 (5th Cir. 2012) (other internal citations omitted)). Thus, simply because the debtor may be stopped from pursuing a non-disclosed claim, the trustee may still pursue it. This is true even if the case is closed – the trustee can always petition the court to re-open the case to pursue the claim and the trustee will not be bound by any settlement or release the debtor may enter into with your client. There is therefore little advantage to be had dealing with a debtor once you determine a claim may fail by judicial estoppel. Dismissal of the action is the most you should consider if the bankruptcy case has already closed. If the bankruptcy case is still pending, you may have an affirmative duty to inform the trustee of the claims. To conceal an asset in connection with a bankruptcy case is a crime pursuant to 18 U.S.C. § 152, and you should be very wary of any agreement that enables a debtor to conceal an asset regardless of how it is structured.  If the debtor’s case is still pending, notify the trustee immediately and do not attempt to keep the non-disclosure for later use. Judicial estoppel is an equitable remedy and aside from the criminal implications you should not expect the court look favorably on your client, or your firm, if it is disclosed that your client knew of the pending bankruptcy case and said nothing.

As mentioned above, a Chapter 11 plan should disclose how the debtor proposes to dispose of all of its assets. This includes lawsuits or other claims, since the Chapter 11 plan and disclosure statement process should be considered to be a representation akin to those made on the statement of financial affairs and the schedules of assets. Therefore, in a less common context, estoppel may apply to the situation of dealing with a Chapter 11 case post-confirmation in which the plan and disclosure statement did not properly reserve the claim for post-confirmation recovery. In re Diabetes America, Inc., 485 B.R. at *38 – *40.  Judicial estoppel will also apply if the plan and disclosure statement affirmatively mislead a potential defendant as to the possibility that the claim has been reserved for post- confirmation prosecuting. Id. Accordingly, if you learn that the plaintiff either is in or has been in a Chapter 11 case, it is important to look for a confirmed Chapter 11 plan and disclosure statement to see if the claim has been preserved. If it has not or the plan and disclosure statement appear misleading, you may have a viable judicial estoppel defense to the action going forward.

IV. Why Talk with the Trustee and How to Talk with the Trustee

There are some advantages to dealing with a trustee. Besides the example of strategic use of a settlement given above, you may also find that the trustee is much more willing to settle on reasonable terms than the debtor is. The trustee is motivated by reaching a reasonable settlement with the minimum of expense. The trustee does not litigate on commission, although the trustee is paid through any recovery. The trustee does not seek a pound of flesh or litigate to make a point, whatever that point may be. The usual non-economic factors that drive litigation are by and large absent when a trustee enters the picture.

The trustee may be the ideal litigant, as the trustee must disclose all of the estate’s assets in periodic filings, and there is no question as to how deep the trustee’s pockets are.
Aside from the practical considerations, talking to the trustee is one of the safest ways to determine what possible defenses are available to you and to avoid double liability. A trustee may elect to “abandon” a cause of action if it is of nominal value, but at least then you have a binding statement by the trustee that will prevent the trustee from later pursuing your client. As I mentioned above, if multiple parties involved with the bankruptcy have claims against your client, negotiating with the trustee may help create a global resolution where otherwise jurisdictional or venue issues prevent consolidation. Specifically, “channeling orders,” may direct creditors to seek relief from the debtor’s estate and grant releases of liability to your client, by the estate and otherwise non-parties to the trustee’s action. Properly pursued, such orders are extremely useful. Therefore, it can be very beneficial to talk with the trustee – you may be able to settle a claim with the trustee on a very reasonable basis and also obtain releases from other liabilities not otherwise available in litigation with a single party.

As I said previously, to go over every permutation of standing and estoppel would require a treatise. These materials are intended to provide you with an explanation of the most common bankruptcy related issues that may impact litigation and some of the ways that familiarity with the concepts can be used to your client’s advantage. As is always the case with an area of law with which you may be unfamiliar, it is advisable to seek bankruptcy counsel before reaching conclusions and when mapping out a strategy in such cases.

I hope this has been of some assistance. Please feel free to contact me at the below address and phone number if you feel that these or any other bankruptcy related issues may impact your case.

*** WE’RE MOVING!

Please make note that effective October 1, 2013, Macey, Wilensky, Kessler & Hennings, is moving to SunTrust Plaza.
Our new address shall be 303 Peachtree Street NE, Suntrust Plaza, Suite 4420, Atlanta, Georgia 30308. All phone numbers, fax numbers and email addresses will remain the same.***

Vania S. Allen Leads Workshop

On February 11, 2013, Vania S. Allen, an attorney in the firm’s bankruptcy, workouts and reorganization group, lead a presentation regarding the foreclosure process entitled: How Bankruptcy Changes the Landscape. The workshop, hosted by the National Business Institute (NBI), offered a step-by-step workshop through the real estate foreclosure process.

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David W. Gordon

David William Gordon

David William Gordon is an Associate in the Bankruptcy, Workouts & Reorganization Group of Macey, Wilensky & Hennings, LLC. In addition to representing secured lenders in consumer and complex Chapter 11 cases, Mr. Gordon also advises debtors in Chapter 11 cases, non-court related workouts, and bankruptcy litigation matters.

Prior to joining the Firm, Mr. Gordon served as attorney for Chapter 7 Trustees and represented creditors as a contract attorney with a local large law firm.

Mr. Gordon earned his Juris Doctor in 2012 from Emory University School of Law. While in law school, Mr. Gordon served as Notes and Comments Editor of the Emory Bankruptcy Developments Journal. He also had his Student Comment, titled “Bankruptcy Code § 542: Turnover and the Current Circuit Split”, published in Norton’s Annual Survey of Bankruptcy Law in the fall of 2012.

Mr. Gordon earned his Bachelors of Business Administration from the University of Georgia’s Terry College of Business in 2009 and holds the honor of having graduated Cum Laude.

Mr. Gordon is admitted to practice in the United States District Courts for the Northern, Southern, and Middle Districts of Georgia.

Publications and Presentations

David W. Gordon, Bankruptcy Code § 542: Turnover and the Current Circuit Split, 2012 Nort. Ann. Surv. Bankr. L. 453 (2012).

Speaker and Session Leader, National Association of Bankruptcy Trustees, Spring 2012 Conference, “Claim Review and Objections.”

Speaker and Session Leader, National Association of Bankruptcy Trustees, Fall 2012 Seminar, “Exemptions and Surcharges” and “Case Law Update.”

Honors and Awards

Recipient of Transactional Law and Skills Certificate from Emory University School of Law, Spring 2012.

 

 

Joshua Katz Among Georgia’s “Legal Elite”

December 2012, Atlanta, GA – Georgia Trend magazine has named Macey Wilensky partner Joshua Katz to its “Legal Elite” listing, an honor bestowed by the publication on a fraction of the state’s lawyers.

In developing the list, the publication sent thousands of ballots to licensed lawyer living throughout the state, asking each to name Georgia’s best practitioners in a number of law-related fields.

Atlanta Bar Association ACLE (May 21, 2009)

Atlanta Bar Association ACLE (May 21, 2009) Attorney Todd Hennings conducted a seminar at the Complex Individual & Small Business Bankruptcy Cases for the Consumer Bankruptcy Attorney event held at the Ritz-Carlton Atlanta. Todd’s presentation on “Individual Liability of Corporate Insiders and Nondischargeability of Corporate Related Claims” provided significant insight into the liability of small and med sized businesses. The seminar concluded with prestigious David Pollard Award which is annually presented to “a person who is a member of the Atlanta Bar who best exemplifies the highest standards of professionalism and ethics in the bankruptcy practice.”

ATTORNEY RICHARD P. KESSLER, JR. HONORED

ATTORNEY RICHARD P. KESSLER, JR. HONORED BY THE CREDIT UNION NATIONAL ASSOCIATION FOR HIS NUMEROUS ACCOMPLISHMENTS TO HELP THE CREDIT UNION INDUSTRY.

MADISON, Wis. – The national 2006 Charles Seibold Credit Union Attorney of the Year Award was presented to Richard P. Kessler, Jr., during the recently concluded national CUNA Attorneys’ Conference, in recognition of his lifetime achievements on behalf of the credit union industry in the United States.

A practicing attorney since 1973, Kessler is a partner of the Atlanta-based Macey, Wilensky, Kessler & Hennings Law Firm. He has also represented the Georgia Credit Union League and its affiliated organizations for more than 30 years.

While presenting the award, Faith Anderson, vice president and general counsel for American Airlines FCU in Fort Worth, Texas, listed many of Kessler’s accomplishments on behalf of credit unions. For example, Kessler joined efforts in helping to protect the credit union share draft program, to pave the way for electronic presentment of checks, and other credit union interests. Additionally, he and his firm were special counsel to the Credit Union Service Corporation, co-authoring the first set of contracts and rules for establishing what has now become the largest national credit union service center network.

The award began in 2004 to recognize the achievements of attorneys who serve the credit union movement. It was named in honor of first-year recipient Charles (Chuck) Seibold, senior partner of Dewitt Ross & Stevens in Madison, who has served as outside legal counsel and general counsel for CUNA and a mentor to many credit union attorneys. Robert Fenner, General Counsel for the National Credit Union Administration (the federal credit union regulator) was the second recipient in 2005 and Mr. Kessler was the 3rd recipient of the Award.

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Frank B. Wilensky

Frank B. Wilensky

Frank B. Wilensky has been a member of the Firm of Macey, Wilensky & Hennings, LLC since 1971. Mr. Wilensky was born in 1943 in Columbus, Georgia and has been a life-long resident of Georgia. He attended Emory University, obtained a BA Degree in History in 1965, and obtained his JD Degree with Distinction in 1968. Following military service, Mr. Wilensky joined the Firm as an associate in 1969 working primarily in the areas of Bankruptcy and Commercial Litigation.

Mr. Wilensky was admitted to the Bar in 1968 and maintains membership in the State Bar of Georgia, Atlanta Bar Association, American Bar Association, Commercial Law League of America and American Bankruptcy Institute. He has served on the Board of Directors of the Bankruptcy Section of the Atlanta Bar Association and has served as the Chairman of the Creditors’ Rights Section of the State Bar of Georgia.

Mr. Wilensky has remained with the same firm for the past 43 years and has developed a reputation in the insolvency field. While he has handled and managed all types of cases in the Bankruptcy area ranging from Debtor to Creditor, Trustee and Creditors’ Committee representations, his practice has been primarily in the area of high-profile Debtor cases.

Mr. Wilensky has been married for 45 years and has three children and six grandchildren. He has been involved in a wide range of civic and public service endeavors. He served as a State President of the American Lung Association and has chaired various committees dealing with refugee immigration and absorption, and adoption for Jewish Family and Career Services.

Publications and Presentations

“Creditors Rights to Attorney’s Fees in Bankruptcy Cases and Adversary Proceedings”, ICLE State Bar of Georgia, March 14, 2002

“When Things Go Wrong: Negotiating the Issue Minefield When Dealing With International Investors”, ICLE State Bar of Georgia, October 4, 2002

“Creditor’s Right to Administrative Expenses and Grounds for Dismissal of a Bankruptcy Case”, ICLE State Bar of Georgia February 13, 2003.

Hal

Hal J. Leitman

Hal J. Leitman

Hal Leitman a member of the Litigation Group of Macey, Wilensky & Hennings, LLC.  He brings a wealth of courtroom experience to the Firm representing banks, credit unions and corporations in business and consumer related litigation. Mr. Leitman represents clients at the trial and appellate level in state, federal and bankruptcy courts. His practice is primarily devoted to commercial litigation, creditor/debtor litigation, bankruptcy litigation, and landlord/tenant matters.  

Mr. Leitman is a frequent lecturer at the Institute of Continuing Legal Education in Atlanta.  He has conducted seminars on various topics concerning advanced debt collection and post judgment recovery in Georgia. 

Publications and Presentations

Lecturer, “Advanced Debt Collection Seminar: Prosecuting the Guaranty”, Institute of Continuing Legal Education in Georgia (February 2005)

Lecturer, “Saturday Lawyer Volunteer Training: Post-Judgment Collections”, Atlanta Bar Association (March 2005)

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Kristi Stathopoulos

Kristi Stathopoulos

Kristi Stathopoulos has over 13 years of experience practicing in the area of taxation with a focus on state and local taxation and entertainment tax incentives. She has assisted companies in solving complex multistate tax problems in a wide variety of industries including entertainment, transportation, insurance, financial, retail, licensing, technology, manufacturing, distribution, and real estate.

Ms. Stathopoulos has extensive experience in state and local income, franchise, and sales and use tax controversy including audit defense, negotiated settlements, and trial and appellate litigation.

Since the enactment of the Georgia Entertainment Industry Investment Act of 2008, which has made Georgia one of the leading U.S. destinations for film, television, and digital entertainment productions, Ms. Stathopoulos has represented a wide variety of clients in Georgia entertainment tax incentive deals.

Publications and Presentations

Kristi has been a guest professor on state and local taxation at The University of Georgia Terry School of Business and a speaker at a continuing legal education seminar entitled “Dealing With the Georgia Department of Revenue.” She has also coauthored articles for State Tax Today and Corporate Business Taxation Monthly.

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Peter G. Stathopoulos

Peter G. Stathopoulos

Peter Stathopoulos has over 19 years of experience practicing in the areas of state and local taxation and economic development incentives, with an emphasis in entertainment tax incentives.

Mr. Stathopoulos helped draft a portion of the Georgia Entertainment Industry Investment Act of 2008, which has made Georgia one of the leading U.S. destinations for film, television and digital entertainment productions. In addition, he helped draft a portion of the most recent Georgia entertainment incentive legislation, Georgia HB 1027 (2012).

Since 2009, Mr. Stathopoulos has represented clients in Georgia entertainment incentive deals exceeding $250,000 million. Mr. Stathopoulos represents a wide spectrum of entertainment clients, ranging from major motion picture studios and national broadcasters and cable companies to independent film production companies. Mr. Stathopoulos works closely with the Georgia Film Office and the Georgia Department of Revenue in representing his clients’ interests.

In addition, Mr. Stathopoulos practices extensively in the area of state and local tax controversy from audit defense up to litigation in Georgia’s trial and appellate courts.

Publications and Presentations

Mr. Stathopoulos is a frequent speaker on state & local tax issues to various organizations including the Southeastern Association of Tax Administrators (SEATA), the Institute for Professionals in Taxation (IPT), the Institute for Continuing Legal Education in Georgia (ICLE), the Atlanta Tax Club, Tax Executives Institute (TEI), Lorman Educational Services, and various state departments of revenue. Mr. Stathopoulos has been a guest professor at the University of Georgia Terry School of Business and the Georgia State University School of Law. Mr. Stathopoulos is a Georgia tax correspondent for State Tax Today, published by Tax Analysts, and has published two articles in The State & Local Tax Lawyer, published by the American Bar Association and the Georgetown University Law Center.

Richard Kesslar

Richard P. Kessler, Jr

Richard P. Kessler, Jr

Honors and Awards

Law Review – Editorial Board, Emory School of Law Journal of Public Law (now Emory Law Journal), 1970-1971
Law Clerk to Judge Charles A. Moye, Jr., U. S. District Court, Northern District of Georgia, 1971-1973.
AV rating by Martindale-Hubbell, Inc.
Who’s Who in America
Who’s Who in American Law

Professional Associations and Memberships

State Bar of Georgia
State Bar of Georgia Business Law Section
Chair, Section, 1995-1996
Chair, UCC Committee, 1993-1994.
State Bar of Georgia Bankruptcy Section
American Bar Association
ABA Business Law Section Chair, Committee on Credit Unions, Business Law Section, 1988-1992 and served on Council of Business Law Section
Vice Chair, Committee on Credit Unions Electronic Transactions, 1999 to present
Member of the following committees:

Committee on Credit Unions
UCC Committee
Consumer Financial Services Committee
Cyberspace Law Committee
Atlanta Bar Association
National Conference of Commissioners on Uniform State Laws
Advisor to the Uniform State Laws Drafting Committees that drafted UCC Article 4A – Funds Transfer, the Revised UCC Article 3 and the Amendments to UCC Article 4, 1985-1990 Lawyers Club of Atlanta
East Lake Golf Club (the home course of Bobby Jones and the site of the annual PGA Tour Championship)

Publications And Presentations

“What You Should Know About the New Bankruptcy Code,” Prentice-Hall, Inc., 1979.
“Guide to the Bankruptcy Laws,” Prentice-Hall, Inc., 1987.
Contributing Author, “Banking and Lending Institution Forms.” A. S. Pratt & Sons (formerly Warren Gorham Lamont), 1995 to present
Advisory Board, “Credit Union Law Service” – Mathew Bender, 1990-1994.
“Credit Unions and Check Truncation” – ABA Business Lawyer, May 1989
“Credit Unions and Check Truncation – An Update” – ABA Business Lawyer, June 1990
“Proposed Revisions to the Georgia Uniform Commercial Code: A Status Report” – co-author – Mercer Law Review, Spring 1992
“Out of Loss – A lesson for Living” – ABA Journal, January, 1998
“Bobby Jones, Sept. 11 and Keeping the Lawyer’s Oath” – Georgia Bar Journal, April 2002

Lecturer at programs held by the Practicing Law Institute, American Bar Association Business Law Section, Atlanta Bar Real Estate Section and the Georgia and Alabama Bar Institutes for Continuing Legal Education on topics including federal consumer laws, the UCC (including Article 4A and Articles 3, 4, and 9), Federal Reserve Board Regulations and Bankruptcy Law issues. Lecturer at programs conducted by financial institutions and their trade associations for their officers and employees on numerous topics, including bankruptcy, federal regulations, usury, lending and the UCC. Lecturer at Staff Conferences held by the Georgia Banking Department for the Department’s examiners and at National Credit Union Administration (NCUA) National Examiner’s Conferences held by the NCUA for NCUA senior examiners on bankruptcy, federal consumer laws and the UCC.

Community Service

President of St. Vincent de Paul Society Council for Atlanta and North Georgia – 2008 to present.

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Todd E. Hennings

Todd E. Hennings

Todd E. Hennings is the Managing Member of the Firm. Mr. Hennings’ practice focuses on business reorganizations, liquidations, turnaround work and associated litigation. He represents litigants in all manner of commercial solvency related matters, restructuring efforts and complex dispute resolution.

Mr. Hennings regularly represents debtors, creditors and trustees before the United States Bankruptcy Court. He has a great depth of experience guiding debtors through the Chapter 11 reorganization process, overseeing orderly liquidations, protecting creditor interests in all manner of lending arrangements and assisting trustees and individuals in connection with the pursuit of claims belonging to the bankruptcy estate.

Before coming to the Firm, Mr. Hennings was a judicial clerk to Bankruptcy Court Judges in every District of Georgia. Mr. Hennings is member of the State Bars of Georgia and Colorado and is an active member of both State and Local Bar Associations dedicated to Bankruptcy and Creditor’s Rights. Mr. Hennings appears as a member of various panels sponsored by the State Bar of Georgia as well as the Atlanta Bar Association continuing legal education programs.

Mr. Hennings earned his Juris Doctor from the Emory University School of Law in 1993. He received a Bachelor of Arts degree in Political Science and Philosophy from Vanderbilt University in 1990. He is admitted to practice in the United States District Courts throughout Georgia.

Publications and Presentations

Co-Author: “Ethical Issues in Everyday Bankruptcy Practice,” Coastal Bankruptcy Law Institute, 1994, reprinted in “Professionalism: A View from the Bench,” ICLE, 1994 (with Hon. James D. Walker, Jr.)

Author and Lecturer, “Reaffirmation Agreements, Statement of Intent and the Automatic Stay under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005”, Atlanta Bar Association Continuing Legal Education Series 2005

Author and Panelist, “A House of Cards by Any Other Name: Ponzi Schemes and Associated Litigation in the United States Bankruptcy Court,” ICLE Georgia, State Bar of Georgia, Bankruptcy Section – Consumer and Business Bankruptcy Law Seminar, The Ritz Carlton Lodge – Reynolds Plantation, Greensboro, Georgia, October 28-29, 2010.

Author and Lecturer: Bankruptcy Law Issues, Katrina Disaster Relief, (October, 2005)

Honors and Awards

Law Clerk to the Hon. Hugh Robinson, U. S. Bankruptcy Court, Northern District of Georgia, 1993

Law Clerk to the Hon. Margaret Murphy, U. S. Bankruptcy Court, Northern District of Georgia, 1993

Law Clerk to the Hon. James D. Walker, Jr., U. S. Bankruptcy Court, Middle and Southern Districts of Georgia, 1994-1996

Named one of Georgia’s Top Rated Lawyers in the bankruptcy field by the Atlanta Journal Constitution and the Wall Street Journal.

AV rating by Martindale-Hubbell, Inc.

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William A. Rountree

William A. Rountree

William A. Rountree represents debtors, creditors, trustees and committees under all Chapters of the Bankruptcy Code. He also supervises the Firm’s consumer creditor practice, representing numerous credit unions and banks in consumer bankruptcy cases and related litigation.

Mr. Rountree joined the Firm in 2001, after serving as Law Clerk to the Honorable Steven H. Friedman, former United States Bankruptcy Judge for the Southern District of Florida. During his career with the Firm, he has been involved in all aspects of insolvency practice and has been selected numerous times as a Georgia Super Lawyer “Rising Star” in Debtor/Creditor Rights and Bankruptcy.

Mr. Rountree earned his bachelor’s degree from Emory University and his law degree from the University of Florida where he served on the editorial board of the Journal of Law and Public Policy. He has been published in the Florida Bar Journal and has lectured at dozens of seminars on bankruptcy, workout and foreclosure issues. He also serves on the Continuing Legal Education Board of Trustees for the Atlanta Bar Association and volunteers regularly for Atlanta Legal Aid.

Mr. Rountree lives in Atlanta with his wife and two daughters.

Publications and Presentations

Author, “The Willful and Malicious Injury Exception to Discharge in Bankruptcy: Just How Narrow Should It Be?,” The Florida Bar Journal, October 1999

Lecturer, “Loan Workouts,” Sterling Education Services Seminar August 2010

Lecturer, “Selected Bankruptcy Issues for the Accounting Professional,” Georgia Society of CPAs Real Estate Roundtable February 2009

Lecturer, “Georgia Foreclosures and Workouts: Ethical Issues,” National Business Institute Seminar August 2011

Lecturer, “Bankruptcy Issues for the Commercial Real Estate Practitioner,” Institute of Continuing Legal Education Seminar September 2008

Lecturer, “Ethical Issues in Commercial Practice,” Institute of Continuing Legal Education Seminar March 2008

Lecturer, “Executory Contracts in Bankruptcy,” Creditors’ Rights Seminar February 2004

Lecturer, “Collection Issues in Bankruptcy,” Sterling Education Services Seminar September 2003

Honors and Awards

Phi Delta Phi
Editorial Board, Florida Journal of Law and Public Policy, 1998-1999
Law Clerk to the Honorable Steven H. Friedman, U. S. Bankruptcy Court, Southern District of Florida, 1999-2000
Selected as a Georgia Super Lawyer “Rising Star” in Debtor/Creditor Rights and Bankruptcy

Morris W. Macey (1922 – 2012)

With great sadness, the Firm announces the passing of its founding partner and friend Morris W. Macey.

Mr. Macey was a pioneer as a bankruptcy attorney whose legal career spanned over six decades. He was born in Camilla, Georgia on December 25, 1922 to Isadore and Frieda Macey. He attended Camilla High School and the University of Georgia where he obtained his JD (Phi Beta Kappa) and Harvard Law School where he received his LLM.

After law school, Mr. Macey moved to Atlanta and was admitted to the state bar in 1943. He was the proud recipient of the Consumer Credit Counseling Service’s Morris Macey Distinguished Service Award, The State Bar of Georgia’s Creditor’s Rights Section’s Morris W. Macey Lifetime Achievement Award, and the City of Atlanta Phoenix Award. He was president of the Commercial Law League of America, served on the Board of Trustees of Fisk University and was a Commissioner on Uniform State Laws. In addition, he received the David W. Pollard Achievement Award, was former chairman of the subcommittee on crimes of the ABA, chairman of the committee on Revision of the Uniform Fraudulent Transfer Act and received an AV rating by Martindate-Hubbell. Mr. Macey also served as a member of the committee on the Revised Uniform Limited Partnership Act, Uniform Exemptions Act, Uniform Consumer Credit Act, Partnerships in Bankruptcy, National Conference of Bar Presidents, and the National Association of Bankruptcy Trustees.

David Pollard Award

February 2012, Frank Wilensky and Todd Hennings were named as two of Georgia’s top rated lawyers in the bankruptcy field by the Atlanta Journal Constitution and the Wall Street Journal.

Atlanta Bar Association ACLE (May 21, 2009) Attorney Todd Hennings conducted a seminar at the Complex Individual & Small Business Bankruptcy Cases for the Consumer Bankruptcy Attorney event held at the Ritz-Carlton Atlanta. Todd’s presentation on “Individual Liability of Corporate Insiders and Nondischargeability of Corporate Related Claims” provided significant insight into the liability of small and med sized businesses. The seminar concluded with prestigious David Pollard Award which is annually presented to “a person who is a member of the Atlanta Bar who best exemplifies the highest standards of professionalism and ethics in the bankruptcy practice.”

Overview

Macey Wilensky is a regional law firm based in Atlanta, Georgia that has been recognized as a leading firm in the areas of bankruptcy, creditors’ rights and financial services for almost seventy years. We provide the highest quality legal advice and representation to clients throughout the Southeast.


Our success is the result of the unparalleled quality of our attorneys, who are experts in their fields. The Firm manages complex legal matters in all major industries and areas of business law and litigation and has been featured in the prestigious national Martindale-Hubbell® Bar Register of Pre-Eminent Lawyers and Super Lawyers magazine. Several of our lawyers are often called upon to lecture at continuing legal education programs hosted by local and state bar associations as well as numerous trade associations and lending institutions. We are leaders of, and maintain active memberships in, many commercial law related bar organizations and are dedicated members of business, government and civic associations throughout Georgia.


MACEY, WILENSKY & HENNINGS, LLC