Although real estate bankruptcy cases no longer dominate the bankruptcy courts' dockets as they did in the early nineties, but they continue to be filed with great frequency in UK. At its essence, the real estate bankruptcy is a two party dispute between mortgagee and mortgagor. Real estate bankruptcy cases are typically filed after a foreclosure sale has been set. Upon learning of the bankruptcy filing, a secured creditor has a number of available options, all or some of which should be exercised, depending on the facts of the case, to maximize loan recovery.

A lender can ask the court to dismiss the bankruptcy case as a "bad faith" filing. A creditor asserting bad faith must prove the subjective bad faith of the debtor and that any reorganization by the debtor is objectively futile. For subjective bad faith, the court will examine whether the debtor invoked the protections of the Bankruptcy Code without either the intention or ability to reorganize its financial affairs. To determine objective futility, the court will examine whether there is indeed a "going concern" to preserve and whether there is any realistic chance for the debtor to reorganize. Most courts require a very strong showing to dismiss a case for bad faith at the outset of a case.

Under the Bankruptcy Code a motion for relief from stay will also be granted where the secured creditor can prove that there is no equity in the real property over and above the secured claims, and that the property is not necessary to the debtor's effective reorganization. This basis for relief is typically alleged as an alternative to bad faith, in the same motion. Almost all controversies surround the value of the real property, making the expert report and testimony of a licensed real estate appraiser essential to the successful prosecution of a motion for relief from the automatic stay on these grounds. The same factors relied upon to support objective futility in the bad faith filing analysis are used to establish that the property is not necessary to an effective reorganization.

An alternate ground for relief from the automatic stay is lack of adequate protection of the secured creditor's interest in the property. For example, if the real property is deteriorating in value and the lender is not receiving post-petition payments, the lender's security interest in the property is not adequately protected. A creditor holding a properly perfected assignment of rents has a lien on "cash collateral" under the Bankruptcy Code. If the assignment of rents was properly perfected pre-petition, it usually attaches to the post-petition rents generated by the debtor's real property. A debtor may not use cash collateral without either a court order or the consent of the secured creditor. While it is common in nonsingle asset realty cases for a debtor to negotiate a cash collateral agreement with the secured creditor before filing for bankruptcy, in single asset real estate cases, which are typically filed at the eleventh hour for the express purpose of stopping a foreclosure, such negotiations are virtually nonexistent.

Unless, within the first day or two of the case, the debtor requests a cash collateral agreement with the lender, or files a motion with the court to authorize the debtor's use of post-petition rents, a lender should immediately advise the debtor in writing that it may not use cash collateral absent an agreement. If an agreement is not reached, the debtor will usually petition the court for authorization on an emergency basis. The lender can also petition the court to deny authorization on the basis that the debtor lacks the ability to adequately protect its interests in the rents. In the final analysis, most secured creditors share the same objective when faced with a real estate case: to extract their collateral, including rents, from the bankruptcy as quickly and inexpensively as possible.

Writer of this article is working as a webmaster of www.ukadvice.com. Also writes business related articles for different article sites. For further details and free bankruptcy advice:

Naylor Parkes Associates Ltd.

Lawford House, Lawford Close

Birmingham

B7 4HJ

West Midlands

United Kingdom.

http://www.ukadvice.com

webmaster@ukadvice.com

Sajjad Ahmad

corporate bankruptcy

Bankruptcy can be the biggest burden to an individual, small business or a multi million dollar corporation. Bankruptcy is a condition where the business cannot meet its debt obligations and petitions as well. In the action, the debtor pays his property to the creditors. This action is maybe voluntary or involuntary, and conducted as prescribed by the National Bankrupt Act. When this happens, there should be no worries because there is a bankruptcy attorney to help you to set your assets in order, and smoothly take care of the files for bankruptcy. Finding a lawyer for this kind of devastating problem is relatively easy. Bankruptcy attorneys specialize in bankruptcy law and can
Click here to read more from this article ...

A bankruptcy credit card is basically a card that you can get despite bad credit.If you have been in bankruptcy in the past, you are probably finding it difficult to build up your credit rating again. One of the reasons for this is that most of the major companies will not offer you a credit card or other loan due to your past bankruptcy. There are a few things that you can do in order to lessen the effect that that bankruptcy has on your credit now, but one of those options (wait until it is no longer on your
Click here to read more from this article ...