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Summaries of Published Opinions by Bankruptcy & Creditors' Rights Practice Group
Bankruptcy & Creditor's Rights
In re Twins, Inc., 318 B.R. 90 (Bankr. D.S.C. 2004). Represented Chapter 11 Trustee in prevailing over creditor’s challenge to Trustee’s confirmed Plan. The District Court subsequently affirmed the Bankruptcy Court’s enforcement of the Plan terms. Charles P. Summerall, IV
In re Twins, Inc., 295 B.R. 568 (Bankr. D.S.C. 2003). Represented Chapter 11 Trustee in dispute over timeliness of creditor’s claim filing. Charles P. Summerall, IV
Safety-Kleen, Inc., (Pinewood) v. Wyche, 274 F.3d 846 (4th Cir. 2001). Represented intervening party in successful appeal in which the Fourth Circuit affirmed the District Court’s denial of a hazardous waste landfill operator’s request for a preliminary injunction to prevent closure of the landfill facility. Charles P. Summerall, IV
Bank of America, N.A. v. ORIX Credit Alliance, Inc. (In re K&P Logging, Inc.), 272 B.R. 867 (Bankr. D.S.C. 2001). Represented prevailing secured creditor in a lien priority dispute between a purchase-money lender and a creditor with a floating lien on the debtor’s equipment. Charles P. Summerall, IV
Summerall v. Richland County (In re Ryan Investment Co., Inc.), 517 S.E.2d 692 (S.C. 1999). Served as Chapter 11 Trustee in bringing an action to set aside a tax sale of the debtor corporation's property. The Bankruptcy Court invalidated the sale, finding that Richland County failed to strictly comply with applicable statutes. The buyer appealed to the District Court, claiming that postal regulations did not permit delivery restricted to addressee only mail to a corporation. After the District Court certified the question, the South Carolina Supreme Court held that, since Richland County failed to attempt to comply with the statute, the Court would not consider what other, alternate mailing would satisfy the statute requirements. The District Court subsequently affirmed the Bankruptcy Court's invalidation of the tax sale. Charles P. Summerall, IV
In re Atlantic LittleNeck Clam Farms, Inc., 211 B.R. 827 (Bankr. D.S.C. 1997). Successfully represented Debtor-In-Possession's parent company in obtaining determination that investment contract holders, who asserted claims exceeding $3 million, were not creditors of the estate. Charles P. Summerall, IV
In re Harborview Development 1986 Ltd. Partnership, 152 B.R. 897 (D.S.C 1993). Represented the first mortgage lender working with Chapter 11 Trustee in seeking to reject and terminate debtor's insider lease. In a nationally discussed decision, District Judge David C. Norton affirmed the bankruptcy court order rejecting and terminating the lease. Charles P. Summerall, IV
In re Seabrook Island Ocean Club, Inc., 118 B.R. 410 (Bankr. D.S.C. 1990). Represented Debtor-in-Possession resort owner as the prevailing party in one of the leading South Carolina cases on executory contracts. Charles P. Summerall, IV
Osborn v. Chicaro Development Corp., 294 S.C. 129, 363 S.E.2d 108 (S.Ct. App. 1987). BMSM represented Osborn in action on a note. The court enforced the note, holding that Chicaro could not deny the assignment of the note and lacked standing to assert that the assignment was illegal under Florida law. Charles P. Summerall, IV
Commercial Foreclosure
Federal Deposit Insurance Corporation v. Danzig, 10 F.3d 806 (table) (4th Cir. 1993) (Unpublished disposition, full text available 1993 WL 478842). BMSM represented lender in action on note resulting in judgment against debtor. Appellate argument focused on the applicability of the "good cause" requirement of Federal Rule of Civil Procedure 55 and the different standard applied under Federal Rule of Civil Procedure 60(b). The Fourth Circuit upheld the district court's entry of default judgment against Danzig. Morris A. Ellison
SCN Mortgage Corp. v. White, 420 S.E.2d 514 (S.C. Ct. App. 1992), aff'd, 440 S.E.2d 868 (S.C. 1994). BMSM represented borrower, successfully arguing that a contractual waiver of statutory appraisal rights violates South Carolina public policy. Morris A. Ellison
Piercing the Corporate Veil in South Carolina - In the recent case of Hunting V. Elders, 359 S.C. 217, 597 S.E.2d 803 (Ct. App. 2004) produced the first significant change in the piercing of the corporate veil doctrine in South Carolina in a decade. The ability to pierce the veil of a statutory close corporation or a subchapter “S” corporation has become more difficult as a result of the holdings in this case, concepts of which should carry over to a limited liability company. Published in the November 2006 issue of South Carolina Lawyer, this article by Shawn M. Flanagan provides practical guidance to business lawyers attempting to understand and avoid application of the doctrine.
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