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October 26, 2023

Bankruptcy Basics for Retail Landlords

Issue 21—"Post-Confirmation Process in Retail Tenant Chapter 11 Bankruptcies"

Bankruptcy Basics for Retail Landlords has covered numerous discrete issues in retail bankruptcy cases from a landlord perspective. With the final planned installment of the series, this issue delves into what happens after a Chapter 11 plan is confirmed. While it may seem like the case is over, there are actually more critical dates, deadlines, and other developments that may arise.

Plan Effective Date

Once the tenant’s plan is confirmed by court order, the occurrence of the “plan effective date”—similar to a closing under the plan—still needs to take place for the tenant to fully exit bankruptcy. Typically, various conditions are included in the plan that must be satisfied to finalize the plan process. In a reorganization, that may include corporate restructuring transactions and the appointment of a plan administrator or post-confirmation trust to administer the remaining bankruptcy estate assets and tasks, while a liquidation would only include the latter. 

For leases that were assumed or assumed and assigned during the case, the plan effective date serves as the final step in that process. A lease that was retained under an amendment may explicitly condition assumption or assumption and assignment on the occurrence of the plan effective date, and other amendment terms, such as modified rental obligations, may be triggered as well.

Bar Date for Administrative Claims or Requests for Payment

A plan confirmation order frequently establishes a bar date for landlords under leases that were rejected to file administrative (post-petition rent) claims. If such a landlord is owed anything by the tenant from the post-petition period, it may need to file a claim or request for payment to maintain its ability to collect. Keep in mind that post-petition amounts owed under leases typically have to be paid in full, so closely monitoring this deadline is critical.

Claims Reconciliations

The reorganized debtor or the person in charge of any assets or interests that are not part of a go-forward reorganized debtor following the plan effective date (e.g., a plan administrator or post-confirmation trustee of a trust) is responsible for reconciling the claims filed by creditors, including landlords, and liquidating any other available assets. Any proofs of claim the landlord filed during the case may be subject to objection for many reasons, including that the claims are duplicative of previously filed claims, the amounts asserted are not owed, or the claims are overstated.

This process is intended to set up pro rata payments to creditors with allowed claims (i.e., claims not objected to or the reduced amounts of claims that were objected to), and since significant amounts might be at issue, it is imperative for landlords to track this closely.

Adversary Proceedings

The representative charged with recovering assets for the benefit of creditors may pursue causes of action against third parties. Landlords with rejected leases should be on the lookout for adversary proceedings—lawsuits in bankruptcy court brought against them alleging matters such as preferential payments, fraudulent conveyances, or seeking turnover of property of the estate. These proceedings invoke complex legal issues that landlord-defendants should address with experienced counsel. 

We’ve reached the end of Bankruptcy Basics for Retail Landlords—at least for now. We look forward to producing more thought leadership about tenant bankruptcy issues in the coming months. If you have any questions or want to learn more, please contact Kevin Newman, Nic Ferland, or Scott Fleischer.

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