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As such, candidates for liquidation trustee positions must consider the exposure potential to liabilities for acts and omissions occurring while administering the liquidation trust. Other penalties may be imposed, such as reducing the liquidation trustee's compensation or imposing a surcharge on the liquidation trustee. The United States Bankruptcy Court of the Northern District of Texas recently held that a confirmed chapter 11 plan of a liquidated company, R. In the non-dischargeability action, the principal moved to dismiss the liquidating trustee’s claims for lack of subject matter jurisdiction, based on the fact that the Corporation’s confirmed plan did not specifically mention that non-dischargeability claims under the Bankruptcy Code were included as retained claims. In Spicer, the Fifth Circuit held that a plan properly reserved avoidance claims when it reserved “claims under Chapter 5 of the Bankruptcy Code” and the related disclosure statement described “various potential avoidable transfers that can be recovered under Chapter 5.” at 549, 552. This enables creditors to properly vote on the chapter 11 plan, a requirement for plan confirmation. Thus, some may wonder why having an underlying claim, like breach of fiduciary duty, deemed non-dischargeable is not a valuable “interest” that belongs to a debtor or its bankruptcy estate. Indeed, even in cases where a substantial portion of the business is sold, the ultimate value to general, unsecured creditors is often derived from the liquidation of other assets.While chapter 11 of the Bankruptcy Code is entitled "Reorganization," it is well settled that chapter 11 may be used to facilitate the orderly liquidation of assets.

In other words, a chapter 11 debtor is generally allowed to operate in the same manner it operated outside of bankruptcy. Section 523 of the Bankruptcy Code, however, excepts certain pre-bankruptcy debts from being discharged. Instead, such action merely determines whether an underlying claim is dischargeable in bankruptcy.Liquidation trusts typically allow for a larger return than a "fire sale" of the debtor's assets, which are transferred into a trust for the benefit of creditors upon confirmation of a liquidating plan. A liquidating plan usually contemplates establishing a liquidation trust, assigning assets and causes of action, and appointing a liquidation trustee. 1989) ("Trustees of an estate in bankruptcy are subject to personal liability for willful violations of fiduciary duties."). To avoid such personal liability, trustees must take the utmost care in their duties, particularly considering the differing causes of action that could accrue. Supreme Court held that under the Internal Revenue Code, a liquidation trustee must "pay the tax due on the income attributable to the corporate debtors' property because [26 U. C.] §6012(b)(3) requires him to make a return as the 'assignee' of the 'property..a corporation.'" Holywell Corp. Chapter 11 Liquidations The Bankruptcy Code's ultimate goal as it relates to businesses is to maximize value for creditors.In recent months liquidations, as opposed to reorganizations or going concern sales, have become a common method of achieving this goal.

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