CBA Record April-May 2017

42 / 52

Young Lawyers Section Member Survey
We Asked, You Answered!
We recently sent out a survey asking Section members what you want from the CBA…and you
answered! Here are some of the key responses and ways the Section plans to implement
your suggestions into future programming:
Get involved today!
CLE, practice area committees, networking/social events,
volunteer opportunities, career events and more.
65% asked for more
networking opportunities.
In 2017-2018 we will look to
host even more practice
area committee meetings
and receptions, round table
events, and socials at a
variety of times during the
day to meet your schedule.
56% asked for evening
educational events.
Young lawyers are busier
than ever before and
find it hard to get away
at lunchtime. Watch for
evening (after 5 p.m.) CLE
and committee meeting
opportunities coming this Fall.
70% value our career
services and want more.
In addition to career
counseling, an online job
board, and career events, the
Section hopes to add more
on demand video and events
to help young lawyers take
the next step in their careers.
ing, as that is what would happen under
the Bankruptcy Code’s priority scheme in
any event. It is not difficult to imagine a
situation where the Real Estate was under
contract, but the Equipment and Crops
were sold first (and both FCB and WCFS
could recover in full). In theory, this would
be a situation where the Bankruptcy Court
may have allowed marshaling. Yet, it is also
not difficult to imagine a situation where
the Real Estate is not sold pursuant to that
contract and ends up selling for an amount
that could no longer make both FCB and
WCFS whole. Unfortunately, the Seventh
Circuit declined to hear an appeal of Fer-
guson III on appellate jurisdiction grounds
because the District Court’s ruling was
not a final order; the District Court ruled
on the “issue” of whether marshaling was
appropriate, not the “dispute” of “[w]ho
gets how much money.”
Practical Considerations
There are a great number of considerations
which must be made when counseling a
client who receives a notice of bankruptcy
filing. If your client is a junior secured
creditor who may suffer through a senior
lender’s foreclosure, then a marshaling
claimmay be appropriate. However, as Fer-
guson I demonstrates, an often-overlooked
aspect to a motion to enforce marshaling
upon a senior creditor is the potential for
prejudice to the senior creditor. Ferguson I
was clear in that prejudice would exist in
a court forcing the senior lender to accept
the risk associated with payments over
time considering the senior creditor could
otherwise simply satisfy its claims through
foreclosure upon its security interests.
A successful marshaling request must
not only demonstrate why the petitioning
creditors will be benefited, but also why the
request for relief will not prejudice the senior
creditors. For this reason, a creditor must not
only understand the relative priority of its
security interests, but must also ascertain the
debtor’s intention as to the collateral secur-
ing those interests. It is difficult to imagine
that any creditors, other than FCB and the
IRS, got what they wanted in Ferguson. As
is often the case in bankruptcy proceedings,
the unsecured creditors in Ferguson are likely
to receive pennies on the dollar. However, a
detailed and reasonable marshaling request
may be the difference to a junior or under-
secured creditor from receiving a pro rata
distribution and exercising its rights as a
secured lender.
Sean P. Williams is an associate with Gold-
stein & McClintock LLLP and represents
debtors, creditors’ committees, and purchasers
of assets in bankruptcy courts throughout the
nation. Alex J. Whitt is an associate with
Hiltz & Zanzig LLC representing busi-
nesses and individuals in bankruptcy and
reorganization matters. E. Philip Groben is
an associate with Gensburg Calandriello &
Kanter, P.C. and represents debtors, secured
and unsecured creditors, and equity interests
in bankruptcy proceedings, commercial litiga-
tion, and non-bankruptcy workouts.
Y O U N G L A W Y E R S J O U R N A L
42 APRIL/MAY 2017