The Most Important Questions a Surety Can Ask about Bankruptcy

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Deborah S. Griffin, Doreen Spadorcia
American Bar Association, 2003 - Bankruptcy - 81 pages
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Concentrating on the ways to treat the surety within the framework of the Bankruptcy Code, this book examines the surety's position as the man-in-the-middle between the obligee and the principal, and between the claimants and the principal.
  

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Contents

INTRODUCTION
1
THE AUTOMATIC STAY
2
1 Can the surety stop the claimants prosecution of a bond claim by arguing the principaldebtors bankruptcy stays the claim?
3
2 Can the surety unilaterally cancel bonds that are cancelable without requesting that the court lift the automatic stay?
4
4 After the principal files a petition can the contract be terminated without court approval?
5
PROPERTY OF THE ESTATE
6
6 Is a bond property of the estate of the debtor?
7
7 Are bonded contract proceeds property of the estate?
8
PLANS OF REORGANIZATION
27
29 How can the terms of the plan affect the suretys claim?
28
30 Should the surety participate in the negotiations relating to the plan and how can the surety protect its rights?
30
32 If the suretys claim remains contingent may it vote and what are its rights?
31
33 If the debtor uses bonded contract funds for purposes other than payment of project bills may this create a nondischargeable debt?
32
34 Generally what are the pitfalls and promise of complaints to deny discharge and determine dischargeability of certain debts?
33
SUBROGATION
35
35 Is the surety subrogated to the priority of a claimant that it has paid?
36

JURISDICTION
9
8 Is the suretys indemnity action against a nondebtor third party subject to the bankruptcy courts jurisdiction?
11
9 Is the suit by a claimant against a surety under a payment or performance bond subject to the bankruptcy courts jurisdiction?
12
11 Can and should a surety extend postpetition bonding credit? If so how can the surety best protect its interests?
13
ASSUMPTION AND REJECTION OF EXECUTORY CONTRACTS AND WHETHER BONDS ARE ASSUMABLE
14
12 When and how can the debtor assume bonded contracts?
15
14 Can the surety push the debtor that does not promptly take action to assume or reject bonded contracts?
16
15 Is a surety bond or indemnity agreement an executory contract that the debtor can accept or reject?
17
16 If a bond is an executory contract can it be assumed?
18
18 Can the debtor assume and assign to the surety or the suretys completion contractor its subcontracts and supply contracts?
19
CASH COLLATERAL ORDERS
20
20 What is cash collateral and does a surety have any?
21
CONVERSION OR DISMISSAL OF A VOLUNTARY PETITION
22
22 On what grounds should a surety seek a dismissal of a proceeding?
23
TRUSTEES AND COMMITTEES
24
25 What are the advantages and pitfalls of obtaining a trustee?
25
27 What is the US Trustee?
26
SETOFF
37
FILING AND ALLOWANCE OF CLAIMS
38
39 How can a surety determine the last date for filing claims against the bankruptcy estate? Are there any special rules allowing a surety additional ti...
39
41 If a surety files a proof of claim in a Chapter 11 case does the subsequent conversion of mat case to a Chapter 7 liquidation require the filing of a ...
40
43 What if the proof of claim originally filed is technically defective because it contains inaccurate information or omits vital information?
41
PREFERENCES
42
45 Can the surety structure a financing agreement to protect collateral and project funds from a preference claim?
43
46 Can the surety be sued for preference even if the surety received no payments or collateral from the debtor?
44
47 What exceptions to the preference rule apply to payments that benefit the surety within the preference period?
45
FINANCIAL INFORMATION AVAILABLE TO THE CREDITORS
47
INVOLUNTARY PETITIONS
48
50 What are the requirements for and risks and benefits of filing an involuntary petition?
49
CONCLUDING REMARKS
50
BIBLIOGRAPHY
52
PROGRAMS RELATING TO SURETYSHIP AND BANKRUPTCY
58
ENDNOTES
59
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Page 78 - ... means money or money's worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation...

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