[CLC-Discussion] Secured creditor

Wed Oct 3 08:49:05 PDT 2012

Although I certainly don't consider myself an expert, I have been involved
in a fair number of construction cases related to bankruptcy proceedings.
My understanding is that a lienor is a secured creditor in bankruptcy if the
debtor is the owner of the property (remember, however, that secured
creditors are only secured in bankruptcy up to the value of the collateral,
so the lienor's secured status can be challenged if there is insufficient
equity in the property to satisfy superior lien claimants, like a
prior-perfected mortgage on the same property). If the bankruptcy debtor is
someone else, (i.e. general contractor), the creditor is not a secured
creditor, but rather has an alternative remedy against a non-debtor, the
property owner.    

As for a bond claim, I don't believe the creditor is a secured claimant, but
likewise has an alternative remedy against an entity who is not a debtor in
bankruptcy: the surety.  You mention that in this case the surety is in
liquidation, by whom?  If the surety is in a bankruptcy proceeding itself, I
don't believe a creditor has a secured claim, but rather a statutory cause
of action, which would most likely be an unsecured claim.

Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of John J.
Thresher
Sent: Wednesday, October 03, 2012 11:04 AM
To: 'Blaik Ross'; 'Weintraub, Lee'; peter at robertsonfirm.com;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor

I do not hold myself out as knowing the first thing about bankruptcy.  That
said, I do not have any support for the notion that a bond holder is a
secured creditor against a bonding company in bankruptcy (and I would think
that the very need to consider the creditworthiness of the bond indicates
the bond would not put the holder in a position of preference over any other
creditors of the Surety).  However, I am familiar with a line of Florida
cases that specifically discuss whether bonds are insurance and conclude
that they are not.  If I recall correctly, the cases were related to
attempts to assert bad faith claims against surety companies.  The opinions
actually allowed bad faith claims but specifically determined bonds were not
insurance.  Subsequently the legislature amended the bad faith statute to
remove sureties from the equation, essentially rendering the line of cases
old news, but they could be helpful to you if you were looking for something
that was intended to show the difference between bonding and insurance.

Sincerely,

John J. Thresher, Esq.

Board Certified Construction Attorney

ThresherAndThresher_Logo_final

400 North Tampa St.
Ste. 1320
Tampa, FL 33602

(813) 229-7744
(813) 228-0367 (Fax)

http://www.ThresherPA.com

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Blaik
Ross
Sent: Wednesday, October 03, 2012 9:13 AM
To: Weintraub, Lee; peter at robertsonfirm.com;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor

How about a bond holder?  I am making a performance bond claim against a
surety in liquidation for money damages and they ask on their proof of claim
form if I am a secured creditor.  I answered yes and attached the bond as
the security agreement, but received a letter from their attorney saying a
bond is not a security agreement but an "insurance policy", therefore my
claim is unsecured.  They cited no authority for the statement.  They said I
will have an opportunity later to object to that classification if I feel
otherwise.  Anyone know the answer?

Thanks!

Capability Integrity and Value.
We look forward to providing our clients with many more years of delivering
the highest quality buildings in our community.
http://www.beauchampco.com

  _____  

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Wednesday, October 03, 2012 8:51 AM
To: peter at robertsonfirm.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor

In bankruptcy cases, a lien holder is deemed a secured creditor even prior
to judgment

 Becker & Poliakoff <http://becker-poliakoff.us/graphics/logo_120.gif> 

Lee A. Weintraub
Board Certified Construction Lawyer

Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub at becker-poliakoff.com
www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority.  The Becker & Poliakoff
Client CARE Center is available for questions, concerns and suggestions.
Please contact us at 954.364.6090 or via email at
<mailto:CARE at becker-poliakoff.com> CARE at becker-poliakoff.com. 

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  _____  

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
peter at robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor

I have a question about secured creditors.  Is a construction lien holder a
secured creditor?  I don't think so until there is a judgment, but can't
find a statutory or case law basis.  I appreciate any help.

Peter A. Robertson

Board Certified Construction Law

Board Certified Civil Trial

The Robertson Firm

5547 A1A South

Suite 108

St. Augustine, FL 32080

T (904)853-2612

F (904)853-2613

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