Daily Archives: September 28, 2023

Meridian Restaurants is selling 67 of its 91 restaurants following an auction. | Photo: Shutterstock.

Several different buyers are acquiring Burger King restaurants out of bankruptcy after winning an auction for the assets of large franchisee Meridian Restaurants Unlimited earlier this month.

But the biggest buyer is, apparently, Burger King itself.

Sixty-seven of the 91 restaurants still operated by Meridian were sold in a 10-hour auction held earlier this month, according to court documents, for a total of about $17.5 million.

Four franchisees, mostly existing Burger King franchisees, are buying restaurants in specific states. But Burger King was the largest individual buyer, agreeing to pay $4.4 million for 29 restaurants in Utah and Montana.

KRAF Inc., an Arizona Burger King franchisee that had provided the initial stalking horse bid for the restaurants out of bankruptcy, is paying $7 million for seven locations in that state, though $1.5 million of that is reserved for construction to repair hurricane damage on one of the locations.

Kansas King is acquiring 16 locations in Nebraska and Kansas for $2.2 million, a deal that includes $1.5 million in support funding from Burger King itself.

Dakota Restaurant Partners is acquiring a dozen locations in North and South Dakota, Minnesota and Montana for $3.4 million. Snake River Foods, a Burger King operator out of Idaho, is buying three Montana units for just over $600,000.

A bankruptcy court was set to approve the deals this week.

It is unclear as of yet what will happen to the restaurants that are not sold but there are some local reports of closed locations in the aftermath of the auction. It also suggests that only just more than half of the 120 restaurants Meridian did operate before it filed for bankruptcy in March will survive the process still open.

Burger King struggled coming out of the pandemic, as perpetually lower-than-average unit volumes proved problematic as costs surged in late 2021 and 2022 and the chains sales did not grow like those of rivals McDonalds, Wendys and Taco Bell. The brand closed about 60 locations last year and more have closed so far this year amid bankruptcy filings and other closures.

Meridian was one of two major Burger King operators to file for bankruptcy earlier this year when it filed in March. It closed restaurants entering the filing and closed several others after seeking debt protection. And, though the company said its sales and profits were coming back, Burger King itself demanded a sale, arguing that the operator was spread too far and wasnt a strong enough operator to warrant continuing in the system.

Meridians restaurants are in several states, from Minnesota to Utah. Burger King is pushing to focus on smaller operators with 50 or fewer locations, and not so far apart. In an ideal world, Id like it if they could drive to all their restaurants, Josh Kobza, CEO of Burger King parent company Restaurant Brands International, said in May.

Burger King has shown some improvement of late, however, as sales have improved and franchisees have worked on operations. The other operator that filed for bankruptcy this year, Toms King, sold for $33 million in April to multiple buyers.

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Restaurant Business Editor-in-Chief Jonathan Maze is a longtime industry journalist who writes about restaurant finance, mergers and acquisitions and the economy, with a particular focus on quick-service restaurants.

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A Burger King franchisee gets sold out of bankruptcy, and a big buyer is Burger King - Restaurant Business Online

September 27, 2023

It also created a new position player in the reorganization game the Subchapter V Trustee. The primary role of the Subchapter V Trustee is to facilitate a consensual plan of reorganization. In other words, to be a mediator between the debtor and its creditors.

In certain cases, however, a Subchapter V Trustee's role can be expanded from facilitator to investigator. This can occur when there is a reasonable suspicion of bad behavior by the debtor. The standard is "cause," a little word with an expansive definition. Depending on the case, it can mean mismanagement by the debtor or the debtors insiders or principals, failure to provide documents or accounting records, failure to account for assets, criminal charges against the debtor or a principal of the debtor, squandering of estate assets, potential insider or intercompany claims, or significant questions about the debtor's true financial condition.

If the Bankruptcy Court finds cause, then it can order a Subchapter V Trustee to investigate the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtors business, and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation of a plan.

Related to the investigation, the Trustee must file a statement of any investigation, including any fact ascertained pertaining to fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor, or to a cause of action available to the estate.

The Court can enhance the Trustee's powers on its own. A creditor also can move the Court to turn the Trustee into a private investigator. As a general rule, the debtor pays the fees and expenses of the Trustee, so the debtor could find itself paying to be investigated. This is not a remedy available in every case. But where a creditor believes the debtor is not being honest, it can be a powerful weapon. In some cases, the mere threat of a motion might cause a debtor to be more cooperative and transparent about its affairs.

This article is based on a presentation Mr. Martin gave at the 2023 National Association of Bankruptcy Trustees in Washington, DC.

-- 2023 Ward and Smith, P.A. For further information regarding the issues described above, please contact Lance P. Martin.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

We are your established legal network with offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington, NC.

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How to Get Your Own "Free" Private Investigator in Bankruptcy - Ward and Smith, PA

Noble House Home Furnishings joined the ranks of furniture suppliers to file for bankruptcy earlier this month, with the company blaming cost inflation and past supply chain disruptions, among other challenges.

When the company filed for Chapter 11, it owed suppliers and warehousers in its supply chain some $10 million from the period leading up to its bankruptcy, according to a court filing. Trade debts from importers and vendors in China and Vietnam make up a majority of the largest claims by the companys unsecured creditors.

Since filing, Noble House asked for and received court permission to make emergency payments to keep its suppliers in good stead and prevent warehousers from seizing inventory. Without the ability to pay claims to vendors as they arise, Noble House would face significant disruption to [the companys] operations at this critical time, it said in the filing.

Founded in 1992, the family-owned company drop-ships merchandise for some of the largest retailers in the U.S., including Amazon, Walmart, Costco, Wayfair, Overstock, Target and Home Depot, the companys current CFO, Gayla Bella, said in court papers. Among its wholesale customers are off-price giants Ross Stores and TJX Cos.

For Noble House, rising lead times and inventory costs contributed to its financial malaise.

Bella noted that rising and persistent inflation, and supply chain challenges have put significant downward pressure on the Companys business. Those challenges, combined with liquidity shortfalls and falling sales, became a crisis.

Noble House carries a core product base of 8,000 SKUs and sources from a network of more than 50 suppliers, based mainly in China, Malaysia, Vietnam and India. With the majority of its merchandise originating in China, it was prone to logistics and production disruptions during the COVID-19 pandemic.

As it tried to stem the bleeding this year, the company cut costs by reducing headcount and optimizing its inventory management, according to Bella. It also vacated a distribution facility in Edgewater, New Jersey.

But those efforts werent enough to keep the company out of bankruptcy. Now in Chapter 11, Noble House is looking to sell itself.

The company entered bankruptcy with a baseline bid from the logistics and technology firm GigaCloud Technology to buy it for $85 million.

Noble Houses filing comes shortly after that of fellow home goods supplier Mitchell Gold Co., which shut down abruptly, citing a shortfall of cash and dispute with its lender in its Chapter 11 filing.

Among Mitchell Gold Co.s customers is the luxury furniture retailer RH. The latter companys CEO, Gary Friedman, said that RH did not anticipate any interruptions from its suppliers bankruptcy or from broader risk in the supply chain.

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Furniture-maker Noble House falls into bankruptcy, owes overseas ... - Retail Dive

The increase in large corporate bankruptcies in the first half of 2023 marked a reversal from a gradual decline in filings since the start of 2021, according to a report released by Cornerstone Research.

The report, Trends in Large Corporate Bankruptcy and Financial DistressMidyear 2023 Update, found that the number of bankruptcies filed by public and private companies with over $100 million in assets increased during the first half of 2023 to 72 filings, already surpassing the 53 bankruptcy filings in 2022. While the number of bankruptcies increased, the average assets at the time of filing, $780 million, were well below the 20052022 average of $2.05 billion and the 2022 average of $1.62 billion.

Retail Trade, Services, and Manufacturing saw the most notable increases in bankruptcy filings in the first half of the year, while Mining, Oil, and Gas continued to decline. Manufacturing has already seen nearly twice as many bankruptcies as in the previous year (24 filings in 1H 2023 compared to 13 in 2022) and accounted for 33% of all bankruptcies filed in the first half of 2023.

"The surge in large corporate bankruptcy filings in the first half of 2023 is consistent with economic conditions posing heightened bankruptcy risk for highly leveraged companies," said Matt Osborn, a principal at Cornerstone Research and coauthor of the report. "Along with a general rise in interest rates, credit spreads for highly leveraged corporate issuers compared to investment grade issuers began widening in mid-2022, a shift that generally persisted into the first half of 2023."

The number of mega bankruptcies, those filed by companies with over $1 billion in reported assets, also increased. In the first half of 2023, the number of mega bankruptcies already matched the full-year total for 2022 of 16 and surpassed the 20052022 half-year average of 11. The largest bankruptcy was filed by SVB Financial Group, with $19.68 billion in assets at the time of filing. The largest non-financial-firm bankruptcy filing was by Bed Bath & Beyond Inc., with $4.40 billion in assets at the time of filing. Six mega bankruptcies were filed by companies in the Services industry.

Additional Statistics and Trends

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Large Corporate Bankruptcy Filings Surged in First Half of 2023 ... - ABL Advisor

The company that has been sued by various states for alleged deceptive business practices surrounding 40-listing agreements, has filed for Chapter 11 bankruptcy protection in 33 states.

Florida-based MV Realty came under scrutiny for allegedly paying homeowners a few hundred dollars in exchange for the right to be the listing agent in the event a homeowner decided to sell their home, CBS News reported.

Under the 40-year contracts, MV Realty would receive money if the company sold the property, the homeowner canceled the agreement or if the property was transferred in some other way, including foreclosure or a transfer when the owner dies.

The contracts also allegedly permitted MV Realty to obtain mortgages on the homes, unbeknownst to the homeowners.

North Carolina, Florida, Pennsylvania, and Massachusetts, among others, have sued MV Realty for alleged deceptive, unfair trade practices.

I was shocked, Philadelphia homeowner Timothy Calhoun, who entered into a contract with MV Realty, said at a hearing concerning MV Realtys practices earlier this year. They never told me that I was signing a mortgage. If I had known that I was gonna put a mortgage on my house, I would have never had signed the agreement.

The lawsuits in every state seek to stop MV Realty from entering into new contracts, void the existing contracts and have courts assign civil penalties to the company.

MV Realty, which operates in 33 states nationwide, previously denied it engaged in any false or deceptive practices.

We are confident that after a full airing of the facts, the conclusion will be that MV Realtys business transactions are legal and ethical and that our team has operated in full compliance with [Massachusetts] law, the firm said in a statement to CBS Boston.

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MV Realty Files For Chapter 11 Bankruptcy - The Real Deal

The judge in Vesttoos Chapter 11 bankruptcy case has called for all sides to stop litigating and start cooperating to find a common ground on key issues that have been holding back progress at a hearing yesterday. Meeting to discuss whether the joint provisional liquidators (JPLs) to the segregated cells of Aons White Rock SAC should be able to attend a Bermuda court hearing without fear of violating the stay that has been imposed, Judge Mary F Walrath concluded that they should, as long as they take no action that would violate it.

As we reported yesterday, the battle over control of and access to segregated cells used for Vesttoo linked reinsurance contracts affected by the fraudulent letters of credit (LOC) continues.

Yesterdays hearing was driven by the JPLs seeking clarity over their attendance of an upcoming Bermuda Supreme Court hearing regarding the liquidation of cells linked to Aon intellectual property reinsurance transactions.

What came out of it was an approval that they and White Rock should be able to attend, but in doing so they must not take any actions that would violate the current interim stay orders and automatic stay.

Judge Mary Walrath stated, Let me address the narrow issue that is before me. It is whether or not the JPLs else can attend Fridays hearing to answer any questions that the Bermuda court, which appointed them, may ask and I think the answer to that is clearly yes.

I do not see that as violating the automatic stay or the terms of the interim stay orders.

They are a fiduciary appointed by the Bermuda court under the Bermuda courts purview and if the circumstances were reversed, I would expect the fiduciary that I had appointed in a bankruptcy case to appear at a hearing I scheduled to address my questions about what is going on, in both that case, and any related Chapter 15 case.

I dont think another order is necessary, we already have four interim orders regarding the effect of the stay, we have the automatic stay and I understand that the JPLs and White Rock have stated that they do not intend to violate the automatic stay.

If they do, the debtor has remedies.

Clearer still, was the frustration of the judge in having to mediate between the parties over matters they had failed to agree on.

Leading her to say, I am not deciding any property interests in the Vesttoo segregated cells that are implicated by the debtors bankruptcy, but I do have the jurisdiction to decide that issue at the appropriate time.

I also have jurisdiction to decide the motion that the debtor has filed regarding whether or not White Rock has or the JPLs have already violated the stay and that is scheduled and will be heard.

But I agree with the committee and the debtor, that we ought to stop litigating and start cooperating.

She went on to discuss the importance of protecting the bankruptcy estate, which perhaps provides a glimpse into how the US court may deal with the subject of segregated cells, their ownership and whether they constitute part of the bankruptcy estate or not.

For the judge, it seems to all be about protecting value and maximising it for the benefit of creditors, which speaks to the very reason for bankruptcy courts in the first place.

Saying, There is limited property, as in any bankruptcy or wind up proceeding. It is in the interest of both parties, I believe, to maximise the value of that property and it ought to be done before the parties, as in any bankruptcy, often it is appropriate to preserve and or sell property of the estate before anybody fights over their share of that pie.

In addition, Judge Walrath called for the establishment of a protocol that would allow a level of coordination between the Chapter 11 bankruptcy court in Delaware and the Bermuda Supreme Court where the White Rock cell liquidation and restructuring case is set to be heard.

There also should be an appropriate protocol that will allow this court to communicate with the Bermuda court and vice versa to try and set up procedures that will assist the parties in working cooperatively to the end that both of them hope and that is maximising the value of the estate, Walrath said.

Judge Walrath went on to advise the parties that a mediator may be able to assist, in finding common ground between them, particularly related to the topics of the functioning of a protocol between the courts, of how far the automatic stay extends, whether the property of the White Rock cells is the property of the bankruptcy estate, and so whether Vesttoo as debtor should be allowed to control them.

These are topics where there remains a substantial amount of disagreement, particularly on the White Rock cells and their ownership.

Summarising, the judge explained, I think the JPLs as fiduciaries in the Bermuda case, are obligated to appear at the hearing to answer the courts questions. They have committed that they will not seek affirmative relief that would violate the automatic stay and Im satisfied with that representation today.

I understand the debtor would be permitted to attend the Bermuda hearing and can protect its interests there.

The call for cooperation is timely, as with the Bermuda hearing nearing there is every possibility that after that the disagreement over the way forward, in relation to the fraud affected cells, their ownership and whether they form part of the bankruptcy estate, may escalate.

Interestingly though, there was no mention in yesterdays hearing of the creditor committee statement that counsel had discovered that a large amount of cash may have been withdrawn from certain of the Vesttoo Segregated Accounts since mid-July 2023.

That seems an important piece of the puzzle and one were likely to learn more about as this saga continues.

Read all of our coverage of the alleged fraudulent or forged letter-of-credit (LOC) collateral linked to Vesttoo deals.

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Vesttoo case: Time to "stop litigating and start cooperating" says ... - Artemis.bm

In a significant development, digital asset lender BlockFi has seen its bankruptcy plan receive approval. Indeed, bankrupt judge Michael Kaplan has approved the crypto firms Chapter 11 bankruptcy plan, as noted in a court hearing that took place this week.

BlockFi still owed over 1,000 creditors a sum of nearly $10 billion. Moreover, the lender owes Three Arrows Capital $220 million, with its top creditor being owed $1 billion. Now, the approval creates a pathway for customers to be paid back.

Also Read: SEC to Delay $30 Million BlockFi Fine Until Investors are repaid

Digital asset lender BlockFi has seen its bankruptcy plan receive official court approval in a court hearing on Tuesday. Indeed, customers of the platform are now on a journey toward their repayment. Subsequently, the $10 billion owed is likely to begin being paid back in the near future.

US bankruptcy judge Michael Kaplan approved the plan as part of a hearing with the US Bankruptcy Court of New Jersey. Yet, unsecured creditors may still have to wait for their funds to be returned. Specifically, the reimbursement may rely on BlockFis positive results in its legal conflict with FTX.

Also Read: BlockFi Will Refund $297 Million to Users

BlockFi had submitted its liquidation plan in late November, with revisions following, according to Crypto Potato. Specifically, three different amended plans were filed between May and July, according to court records. However, the plan was ultimately approved by Kaplan this week

Alternatively, the court filing notes the contentious bankruptcy proceedings that had been taking place. Yet they also pointed out that the settlement that was reached curbed certain administrative costs. Therefore, maximizing customer recovery remained their priority.

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BlockFi Bankruptcy Plan Receives Approval - Watcher Guru

A recent incident involving a former CEO of a local US bank has been the latest reminder of the risks tied to the crypto world. As the industry grows despite tales of fortunes made and lost abound, this particular story paints a cautionary tale of corporate responsibility gone awry.

Heartland Tri-State Bank, a cornerstone in Kansas, primarily served the financial needs of local farmers and businesses. According to a recent report from Bloomberg, this institution, known for its deep-rooted community connections, suddenly became thrust into the spotlight of an investment scandal.

At the helm of this financial whirlwind was its then-CEO, Shan Hanes. Hanes redirected the banks assets to a crypto venture based in Hong Kong. His actions were not immediately apparent until a significant decision caught the attention of many.

Bloombergs investigative piece revealed the first signs of Hanes predicament. In what appeared to be an act of desperation, the CEO reached out to one of his wealthiest clients with a proposal to borrow $12 million.

Trying to justify his request, Hanes disclosed his involvement in the crypto world. The then-CEO spoke of an individual guiding him through crypto investments. But all was not going well.

Hanes shared that due to some unforeseen complications related to wire transfers, Hanes needed significant funds to salvage the situation. To sweeten the deal and perhaps win over the clients trust, Hanes offered $1 million in interest on the loan.

The repercussions of Shan Hanes investment decisions cast a long shadow over Heartland Tri-State Banks future. Notably, The Federal Deposit Insurance Corporation (FDIC) eventually intervened, setting aside over $54 million to safeguard the interests of the banks patrons, shielding them from the fallout of the banks financial insolvency.

Although specific details of Hanes transactions remain enigmatic, the report points fingers at a probable pig-butchering scam. Such schemes, as outlined by US regulatory bodies, cunningly entice victims into channeling more funds under the illusion of recovering their assets.

Bloomberg cited Law enforcement data indicating that billions have evaporated from the pockets of individuals trapped by these predatory tactics.

As the financial storm Hanes stirred intensified, Heartland Tri-State Banks viability stood shaky. Questions about the banks ability to remain solvent amid the financial chaos began circulating.

Amid the turbulence, a silver lining emerged for the banks clients. According to the report, Dream First, a fellow banking entity, entered the fray, acquiring the banks assets. This acquisition ensured that Heartlands customers did not lose any deposited funds.

However, while Heartland Tri-State bankers could sigh relief, the banks original shareholders bear the brunt, facing significant financial repercussions.

Featured image from Unsplash, Chart from TradingView

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From Bank To Bankruptcy: How This Crypto Scam Toppled A US ... - Bitcoinist