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813 225 1918
1010 N. Florida Ave. Tampa, Fl 33602

25
May
Memorial Day

A boy scout offers a salute at the foot of a grave after volunteers placed flags at the Los Angeles National Cemetery on Saturday, May 28, 2016 in preparation for Memorial Day. (AP Photo/Richard Vogel)

This coming weekend Americans celebrate Memorial Day. It is a holiday that for most of us marks the beginning of summer. If you live in the northern part of the U.S., Memorial Day marks the opening of pools, lakeside patios and other places that bring back those fond memories of childhood. In Florida, it marks the beginning of Hurricane season as well as the beginning of our summer season.

Memorial Day started after the American Civil war in the late 1860s. It was first called Decoration Day at Arlington National Cemetery by then General James Garfield.  General Garfield held the first Decoration Day in 1868 “Decorating” with flowers the graves of American Soldiers who died in the Civil War. It wasn’t until 1968, however, that the United States Congress passed the Uniform Monday Holiday Act which established Memorial Days as the last Monday in May. This change was effective as of 1971.

Although many towns claim to have celebrated the first Memorial Day, the U.S. Government only officially recognizes the town of Waterloo, New York as the official birthplace of Memorial Day. Check out their website here.

Today, the United States has 135 national cemeteries located in 40 states and Puerto Rico.   The Cemeteries are managed by the U.S. Department of Veterans Affairs National Cemetery Association.   Florida has 9 National Cemeteries.   Any member of the Armed Forces of the United States who dies while on active duty or any Veteran who was discharged under conditions other than dishonorable may be eligible for burial in a National Cemetery.

This Memorial Day, take a moment to pray for those defending our country who are still in harm’s way. Also, take a moment to remember those who fought or have served the United States Military. These are the individuals who laid their lives on the line to protect those freedoms enumerated in the Constitution of the United States of America.

The attorneys and staff of Wetherington Hamilton, P.A. celebrate this Memorial Day with our families and friends and we thank all those who serve or who have served this great Nation.

 

Theodore J. HamiltonWetherington Hamilton founding attorney, Theodore J. Hamilton, has over 20 years of experience in handling real estate transactions and litigation. Attorney Hamilton has particular experience in matters involving complex litigation and complicated real estate matters having represented title insurance companies and individuals throughout the state of Florida. He can be reached by phone at (813) 676-9082 or via email at TJH@whhlaw.com.

21
May

So you are a vendor with unpaid invoices from a Client and receive the dreaded Notice of Commencement of Bankruptcy Case. You check your records and see that you have made a large product delivery (or series of deliveries) to the Client—now Debtor—within a short period of time prior to the filing of the bankruptcy case . Are you out of luck? Maybe not. Depending on what you delivered to the Debtor and when you made these deliveries, you may be able to assert what is called a 20-day administrative priority claim as to the portion of your claim that fits within the requirements of this section of the Bankruptcy Code. Why is this important? Well, you may be able to change a portion of your claim against the Debtor from a general unsecured claim (which are often paid pennies on the dollar in a bankruptcy case, if at all) to an administrative claim which has a higher level priority in the claim distribution process. In Chapter 11 cases, administrative priority claims are often paid in full upon confirmation of the Plan so there is a very obvious benefit for a vendor to hold a 20-day administrative priority claim.

Section 503(b)(9) of the Bankruptcy Code provides for an administrative expense status for “the value of any goods received by the Debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor the ordinary course of such Debtor’s business.” Parsing apart this provision, a vendor must establish four elements to establish such a claim—the value of goods that were sold to the Debtor in the ordinary course of the Debtor’s business and received by the Debtor within 20 days of the bankruptcy filing. The specific circumstances of a transaction or series of transactions can determine whether a claim fits within this section and will be allowed as an administrative priority.

First, the vendor’s claim will only be allowed for goods sold to the Debtor. The Bankruptcy Code does not define what “goods” are, so the Courts have come up with various decisions as to what are or are not ‘goods” under this section. In some cases the determination is clear—for example tangible supplies provided to the Debtor such as machinery, equipment or parts are goods as determined in several cases. Likewise, Courts have found chemicals provided as fertilizer to a farming enterprise and produce delivered to a restaurant supplier to be goods meeting the requirements of this section. What has proved difficult for the Courts to determine is when a vendor supplies goods and services at the same time. Let’s say the chemicals delivered to the farming operation above are also loaded by the vendor into fertilizer sprayers at the time of delivery for the farm’s use. Should the value of the fertilizer loading be part of the administrative priority claim? The decisions in this area vary between the Courts so a vendor facing an issue of this sort will likely need to contact an attorney for guidance.

The second element of an administrative priority claim requires that the goods actually be sold to the Debtor in the ordinary course of the Debtor’s business operations. There is a dearth of case law on this aspect of a 503(b)(9) claim and the Bankruptcy Code does not define what the term “sold” entails, though it appears clear that goods that are leased to the Debtor would not fit within this section. A vendor should contact counsel when it confronts a situation in this regard as certain vendor-debtor relationships can be murky. Likewise, the Bankruptcy Code does not define what is “ordinary course” for a Debtor’s business operations. What is “ordinary course” is often not an issue in an administrative priority claim determination. However, as above, a vendor confronted with an unclear situation should consult with a bankruptcy creditor’s attorney for guidance in establishing its claim.

The third element requires that the Debtor have actually received the goods in the 20 day period prior to the filing of the bankruptcy case. Vendors are cautioned to understand the difference between invoicing and actual delivery and receipt by the Debtor. Invoicing can occur before, at the same time, or after delivery and receipt so a vendor should have a clear understanding of its course of dealings with the Debtor in order to determine when the Debtor came into physical possession of the goods. Oftentimes the vendor-debtor relationship can be murky in this regard requiring a very fact-dependent analysis in order to ascertain whether a vendor’s claim fits into an administrative priority status.

Finally, the administrative priority claim would be for the value of the goods that meet all of the above requirements. The Courts will often look to the invoice and consider the value of the goods to be the invoice price of such goods though this is not always the case, especially in a situation where, as set forth above, there is a combination of goods and services provided as part of a vendor’s delivery to a Debtor or a question as to whether the goods described on the invoice or invoices were what was actually delivered to the Debtor.

Can a vendor assert a 20-day administrative priority claim in any bankruptcy case? The answer is yes—administrative priority claims under §503(b)(9) can be asserted in regards to claims under any Chapter of the Bankruptcy Code, though, effectively, they are of significant value to Vendors only in Chapter 11 cases. The reason is that the highest level of priority in cases in other Chapters of the Bankruptcy Code (such as Chapter 7 cases ) are the expenses of the costs of administration, such as the Trustee’s fee, the attorneys for the Trustee’s fees and costs and so forth. Administrative priority claims under §503(b)(9), though they retain a priority status in these cases filed in other Chapters, are a lower-level of priority and are not paid unless the costs of administration are first paid in full.

What is the process for a vendor to assert an administrative priority claim under §503(b)(9)? The short answer is that it is dependent on the process used in the Court where the case is pending, the process that may have been ordered by the Court in a particular case or the terms of a Chapter 11 Debtor’s Plan of Reorganization. The Bankruptcy Code itself does not specify the process. There is a significant variability between the Bankruptcy Courts as to how and when a vendor must make its claim, so it is easy for a vendor to get tripped up and inadvertently fail to timely make such a claim or make the claim in the “wrong” way. Therefore it is important for a vendor to contact its creditor counsel to devise the strategy for making the claim timely and in the correct way.

 

Brad Hissing is a Bankruptcy Attorney with over 26 years of experience in representing creditors, Trustees and other parties in bankruptcy cases. He has extensive experience in Creditors Rights and Insolvency matters in both consumer and Chapter 11 commercial cases. He can be reached at BradH@whhlaw.com or by phone at (813) 676-9075.

07
May

On April 14, 2018, the Habitat for Humanity Blueprint Gala was held at the Vinoy Hotel, Palm Ballroom. It was a sold out event, where the food and wine were spectacular, the entertainment top notch, and the dance band fabulous. With a silent auction, a live auction, sponsorships and table sales, Habitat raised enough money to build seven houses. Seven houses!

Where I am today is a result of each crossroad I came to in my life and each decision I made when I got there. I have been quite lucky. Generally, my decisions have eventually led to a desirable result. I enjoy my work and I love my life.

Two years ago, I found myself with the opportunity to serve on the Board of Directors for Habitat for Humanity of Pinellas County, Florida.

Let’s be clear – Habitat for Humanity doesn’t give free houses to poor people. An applicant must have a reasonable source of income, and the funds to pay for the insurance, real property taxes, and closing costs. Applicants must take 16 classes and then spend 350 to 400 hours of sweat equity building their own and other homes. And they pay a mortgage, which carries zero interest charges.

Now, I understood that serving on the Board of this not for profit corporation would be about helping them raise the money to carry out the Habitat for Humanity mission to provide affordable and safe housing for families and individuals who haven’t been so lucky in life, but are willing to work hard and want nothing more than to put a decent roof over their loved ones and themselves. And, I also knew that I didn’t have a list of corporate connections or philanthropic foundations to tap for donations, but I had some legal knowledge I could contribute and I wanted to be of service. Yet, somehow, I have managed to raise money and make a difference. It turns out you just have to ask. People are remarkably willing to contribute.

Every time I go to the dedication of a Habitat for Humanity home and hear the stories, and see the children’s faces and the bright hope in the eyes of the adults, I feel happy that I can contribute in any way at all to making the dreams come true.

I have been practicing community association law for 34 years. And, I have been teaching and providing motivational presentations for 32 of those years. Sometimes, I am fortunate enough to hear just the thing I need to hear at just that moment. Sometimes, I am fortunate enough to say just the thing someone else needs to hear at just that moment.

The messages are: Yes, you are more than good enough. You are certainly smart enough. You are exceptionally qualified to do your jobs, care for your loved ones, and make a difference everywhere you go. Be mindful. Realize that the biggest bully in your life is the person you see in the mirror.

And, I get to re-experience the energy and rejuvenation that comes from repeating my messages. Sometimes, I too need to be reminded of the messages as the vagaries of the outside world assert themselves, and throw those speed bumps onto the daily roads of our lives.

Every day we get up, have breakfast, help get the family organized for the day, get in our cars and head off to our jobs. We take all of that for granted. We complain about the traffic and the heat. We think about where we will have lunch. What if we lived in a neighborhood so dangerous, the children could not go outside to play? What if there were holes in the roof and the floor? What if we had no hot water, no working toilet, and no closets? What if we had no air conditioning or heat? What if the rent for that home was more than 1/2 of our monthly income? What if the landlord ignored requests for repairs? What if, what if? And, how many people live in those conditions all around us?

I worry when I read the stories. Isn’t there something that can be done about these slum landlords? But, where will these people go? No one would choose to live that way if there were any viable alternatives. Habitat for Humanity continues to create affordable housing, and the affiliate expects to build its 500th house this year.

So, I am happy that I found Habitat for Humanity, and that I can give back since I have been so fortunate to live the life I have. Yes, I am grateful.

 

Community Association Attorney Ellen Hirsch de HaanEllen Hirsch de Haan has over 30 years of experience practicing homeowners and community association law. She regularly teaches classes on the subject to further educate homeowners and property managers alike. Ask to join our email list to learn more by contacting marketing@whhlaw.com.

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