“This book continues to be the go-to reference manual for anyone seeking to enforce a judgment or lien in Virginia. I agreed to edit this book after many years of using it as a resource in my practice. Each of the chapters are authored by well-known experts in creditors’ rights law, and the collection of these chapters provides a comprehensive, up-to-date, and user-friendly manual for practicing in this area of the law.”
– Tyler Brown, editor Enforcement of Liens and Judgments in Virginia is a practice manual that will help both attorneys accustomed to creditors’ rights work and attorneys who are new to the practice area. The focus of this publication is putting law into practice. It clearly covers each step in enforcement procedures, provides advice on best practices, and includes over 60 forms in electronic format. The chapters provide significant guidance on issues that many lawyers do not face in their everyday practice even if they have prior experience in this area. This 2019 edition is updated through the 2019 session of the General Assembly. Federal legislation and case law have been updated as well.
CHAPTER 1: DEEDS OF TRUST
1.1 INTRODUCTION
1.101: In General
1.102: Limitations Periods
1.103: Foreclosure by a Trustee
1.104: Deed in Lieu of Foreclosure
1.105: Judicial Foreclosure1.2 THE TRUSTEE
1.201: Eligibility
1.202: Duties
1.203: Substitution of Trustee
1.204: Trustee as Purchaser
1.205: Statute of Limitations
1.3 INITIAL PROCEDURES
1.301: Documentation
1.302: Commissioner of Accounts
1.303: Due Diligence
1.304: Title
1.305: Notice
1.306: Advertising
1.4 THE SALE
1.401: Place
1.402: Terms
1.403: Conduct of the Sale
1.404: Postponement
1.405: Adequacy of the Bid
1.406: Conclusion of the Sale
1.5 SETTLEMENT AND ACCOUNTING
1.501: The Trustee’s Deed
1.502: Recordation Tax
1.503: Failure of the Purchaser to Comply with the Bid
1.504: Distribution of the Proceeds
1.505: Release of the Deed of Trust
1.506: Report to the Commissioner of Accounts
1.507: Consumer Protection Act
APPENDIX 1-1: ADDITIONAL FORM FOR CERTIFICATE TO EXTEND ENFORCEABILITY OF THE DEED OF TRUST OR MORTGAGE
APPENDIX 1-2: SUBSTITUTION OF TRUSTEE
APPENDIX 1-3: LETTER TO DEBTOR
APPENDIX 1-4: NOTICE OF ACCELERATION
APPENDIX 1-5: TRUSTEE’S SALE OF REAL ESTATE NEWSPAPER AD
APPENDIX 1-6: LETTER TO NEWSPAPER
APPENDIX 1-7: ADDITIONAL TERMS OF SALE
APPENDIX 1-8: PURCHASER’S CONTRACT WITH TRUSTEE
APPENDIX 1-9: TWO-PARTY TRUSTEE’S DEED
APPENDIX 1-10: THREE-PARTY TRUSTEE’S DEED
APPENDIX 1-11: ACCOUNT OF FORECLOSURE SALE UNDER DEED OF TRUST
APPENDIX 1-12: NOTICE
CHAPTER 2: ENFORCEMENT OF SECURITY INTERESTS
2.1: IN GENERAL
2.2: THE IMPORTANCE OF THE PARTIES’ AGREEMENT IN ESTABLISHING THE RIGHTS AND REMEDIES OF THE SECURED PARTY AND THE DEBTOR
2.201: The Importance of Default
2.202: Rights and Remedies Arising Only from the Parties’ Agreement
2.3 POSSESSION
2.301: In General
2.302: Possession Under the U.C.C.—“Self-Help”
2.303: Judicial Action by the Secured Party to Obtain Possession
2.304: Bankruptcy
2.305: Duties of a Secured Party in Possession
2.4 SALE OR OTHER DISPOSITION
2.401: In General
2.402: Sale of Collateral
2.403: Conditions of Sale
2.404: Provisions of U.C.C. Article 2
2.405: Notice
2.5 PRIVATE SALES
2.501: Commercial Reasonableness
2.502: Notice of Sale to the Debtor
2.503: Purchase by the Secured Party at a Private Sale
2.6 PUBLIC SALES
2.601: Notice
2.602: Waiver of Notice
2.603: Waiver of Public Sale
2.604: Commercial Reasonableness
2.605: Purchase by the Secured Party
2.7 RETENTION OF THE COLLATERAL IN FULL OR PARTIAL SATISFACTION OF OBLIGATIONS
2.701: Proposal to Retain Collateral
2.702: Objection
2.8 SPECIAL RULES FOR THE DISPOSITION OF CONSUMER GOODS AND INVESTMENT SECURITIES
2.801: Consumer Goods
2.802: Compliance With the Securities Act
2.9 APPLICATION OF PROCEEDS OF SALE OR OTHER DISPOSITION
2.901: Priority
2.902: Surplus
2.10 RIGHTS OF REDEMPTION
2.1001: Debtor or Owner
2.1002: Others
2.11 DEBTOR’S REMEDIES FOR IMPROPER DISPOSITION
2.1101: Failure to Follow Title 8.9A Procedures
2.1102: Action in Which Deficiency or Surplus Is in Issue
2.12: “LENDER LIABILITY” ISSUES
APPENDIX 2-1: “EVENTS OF DEFAULT” PROVISION FOR SECURITY AGREEMENT
APPENDIX 2-2: PROVISION FOR SECURITY AGREEMENT COVERING ACCOUNTS, CHATTEL PAPER, OR INSTRUMENTS
APPENDIX 2-3: PROVISION FOR AGREEMENT REQUIRING THE COLLATERAL TO BE ASSEMBLED AT A GIVEN LOCATION
APPENDIX 2-4: ACKNOWLEDGMENT OF DEFAULT AND WAIVER OF RIGHTS OF REDEMPTION AND NOTIFICATION OF SALE
APPENDIX 2-5: PROVISION FOR AGREEMENT ALLOWING THE SECURED PARTY TO ENTER THE DEBTOR’S PREMISES
APPENDIX 2-6: VERIFIED PETITION FOR ENTRY OF AN ORDER OF SEIZURE IN DETINUE
APPENDIX 2-7: ORDER OF SEIZURE IN DETINUE
APPENDIX 2-8: NOTICE OF SALE OR OTHER DISPOSITION
CHAPTER 3: MECHANICS’ LIENS
3.1: IN GENERAL
3.101: Statutory Creation
3.102: Statutory Construction
3.2: WHO MAY CLAIM THE LIEN
3.201: Identifying a Mechanic’s Lien Claimant
3.202: Statement Declaring Intention to Claim the Benefit of a Lien Required.
3.203: Laborers and Suppliers
3.204: Architects, Engineers, and Surveyors
3.205: General Contractors and Subcontractors
3.3: PROPERTY SUBJECT TO THE LIEN
3.301: In General
3.302: Public Property
3.303: Multiple Contracts, Lots, Units, or Buildings
3.304: Utility and Paving Contractors
3.305: Leased Property
3.306: Condominiums
3.307: Time-Share Property
3.4: PERFECTING THE LIEN
3.401: The 90-Day Rule
3.402: “Completed or Otherwise Terminated”
3.403: Replacement Materials; Open Accounts
3.404: Certification of Mailing
3.5: MECHANICS’ LIEN AGENTS
3.501: In General
3.502: Designating the Mechanics’ Lien Agent
3.503: Posting the Building Permit
3.504: Sufficiency of the Building Permit
3.505: Notice Requirements
3.506: Evidence of Receipt
3.507: Inaccurate Description of the Property
3.508: Time Period for Notice
3.509: Notice After the 30-Day Period
3.510: Determining Whether a Proper Building Permit Has Been Issued
3.511: Amendment of Building Permit
3.512: Exceptions to the Requirement to Notify the Mechanics’ Lien Agent
3.6: AFFIDAVIT VERIFYING PAYMENT FOR LABOR AND MATERIALS 167
3.601: Purchaser to Be Provided Affidavit or Statement at Settlement
3.602: Penalty for Failure to Provide
3.7: THE 150-DAY RULE
3.701: Statutory Basis of Rule
3.702: Cases Construing the Rule
3.8: STATUTORY FORMS FOR THE MEMORANDUM OF LIEN
3.801: The Contractor’s Memorandum
3.802: The Subcontractor’s Memorandum
3.803: Statement Declaring Intention to Claim the Benefit of a Lien Required
3.9: DEFENSES
3.901: Owner’s Priority
3.902: Limitation on the Amount Claimed by Subcontractors and Sub-Subcontractors
3.903: Licensure of Claimant
3.10: PERSONAL LIABILITY OF OWNER OR GENERAL CONTRACTOR 182
3.1001: Remedy Created by Section 43-11 of the Virginia Code
3.1002: Creation of Personal Liability of Owner and General Contractor
3.1003: Priority of the Section 43-11 Claim
3.1004: Owner’s Right to Setoff for Work Not Completed by General Contractor
3.1005: Limitations on Owner’s or General Contractor’s Liability
3.11: ENFORCEMENT OF THE LIEN
3.1101: Complaint
3.1102: Intervening Petition by Other Lienholders
3.1103: Parties
3.1104: When the Suit Must Be Brought
3.1105: Automatic Stay in Bankruptcy
3.1106: Scope of Jurisdiction
3.1107: Sale of the Property
3.1108: Challenging the Validity of Lien
3.1109: Court-Ordered Release
3.1110: Diverting Funds
3.12: PRIORITY OF LIENS
3.1201: In General
3.1202: Priority over Deeds of Trust
3.1203: Priority over Security Interest in Accounts Receivable
3.1204: Priority Among Mechanics’ Liens.
3.1205: Removal of Materials Affixed to the Structure
3.1206: Federal Liens
3.13: ALTERNATIVES TO MECHANICS’ LIENS
3.1301: Civil Suit
3.1302: Statutory Alternatives
3.1303: Threat of Filing
3.1304: Contract Provisions
3.14: MISCELLANEOUS CONSIDERATIONS
3.1401: Assignment
3.1402: Waiver
3.1403: Slander of Title
3.1404: Forfeiture
3.1405: Release or Discharge
3.1406: Attorney Fees
3.15: PRACTICAL EFFECTS OF FILING A LIEN
3.1501: Effect on the Owner
3.1502: Effect on the Claimant’s Business
3.1503: Effect on the General Contractor
3.1504: Effect on the Construction Lender
3.1505: Effect on the Title Agency
APPENDIX 3-1: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY GENERAL CONTRACTOR UNDER SECTION 43-4 OF THE VIRGINIA CODE
APPENDIX 3-2: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUBCONTRACTOR UNDER SECTION 43-7 OF THE VIRGINIA CODE
APPENDIX 3-3: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUB-SUBCONTRACTOR UNDER SECTION 43-9 OF THE VIRGINIA CODE
APPENDIX 3-4: COMPLAINT TO ASSERT CLAIM AGAINST BOND ON STATE BUILDING OR PROJECT
APPENDIX 3-5: DISCLOSURE STATEMENT FOR SITE DEVELOPMENT IMPROVEMENTS
APPENDIX 3-6: NOTICE TO MECHANICS’ LIEN AGENT PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE
APPENDIX 3-7: OWNERS’ AFFIDAVIT AS TO MECHANICS’ LIENS AND POSSESSION (With “Gap” Coverage)
APPENDIX 3-8: COMPLAINT TO ENFORCE MECHANIC’S LIEN
APPENDIX 3-9: STATEMENT OF ACCOUNT
APPENDIX 3-10: PETITION TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 3-11: BOND TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 3-12: DECREE TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 3-13: ATTORNEY CHECKLIST FOR MECHANIC’S LIEN CASE
CHAPTER 4: ATTACHMENTS
4.2: STATUTORY BASIS
4.201: To Whom Available
4.202: Grounds
4.203: Attachment of Vessels
4.204: Judicial Interpretations
4.205: Jurisdiction and Venue
4.3: PLEADINGS AND PROCEDURE
4.301: Petition
4.302: Defendants
4.303: Issuance of the Attachment
4.304: Bond and Levy
4.305: Legal Risks
4.4: THE LIEN OF ATTACHMENT
4.401: Commencement
4.402: Property Affected
4.5: DEFENSES TO ATTACHMENTS AND JUDGMENTS
4.501: In General
4.502: Statutory Exemptions
4.503: Parties and Procedure
4.504: Bankruptcy
4.505: Dismissal of the Petition
4.7: PETITION FOR REHEARING
4.8: PENDING ACTIONS
APPENDIX 4-1: ATTACHMENT PETITION (CIRCUIT COURT)
APPENDIX 4-2: APPLICATION FOR AN ADDITIONAL ATTACHMENT
APPENDIX 4-3: PLAINTIFF’S BOND FOR LEVY OR SEIZURE (DC-447)
APPENDIX 4-4: MEMORANDUM OF ATTACHMENT
CHAPTER 5: OTHER STATUTORY LIENS, STATUTORY EXEMPTIONS, AND FRAUDULENT AND VOLUNTARY CONVEYANCES
5.1: THE LANDLORD’S LIEN
5.101: In General
5.102: Nature and Extent of the Lien
5.103: Enforcement of the Lien
5.104: Liens of Landlords and Farmers for Advances
5.2: MISCELLANEOUS LIENS UNDER TITLE 43
5.201: Introduction
5.202: Innkeepers and Boardinghouse Owners
5.203: Keepers of Livery Stables, Hangars, Tie-Downs, Marinas, and Garages
5.204: Towing and Recovery
5.205: Alterations and Repairs
5.206: Competing Liens
5.207: Leased Goods
5.208: Offspring of a Stallion or Jackass
5.209: Offspring of a Bull
5.210: Consigned Farm Products
5.211: Cleaners and Launderers
5.212: Enforcement of Liens for Storage, Alterations, and Repairs and Enforcement of Hotel and Innkeepers’ Liens
5.213: Disputing the Validity of the Lien
5.3: WAREHOUSE OWNER’S AND CARRIER’S LIENS
5.301: Creation of the Warehouse Owner’s Lien
5.302: Enforcement of the Warehouse Owner’s Lien
5.303: Creation of the Carrier’s Lien
5.304: Enforcement of the Carrier’s Lien
5.305: Liability for Noncompliance
5.306: Other Remedies
5.4: ATTORNEY’S LIEN
5.5: LIEN FOR MEDICAL, NURSING, PHARMACIST, AMBULANCE, AND HOSPITAL SERVICES
5.6: HOMESTEAD AND OTHER EXEMPTIONS
5.601: In General
5.602: Homestead Exemption
5.603: Other Exemptions
5.604: Exemptions for Estates
5.605: Claim of Exemption; Hearing
5.7: FRAUDULENT AND VOLUNTARY CONVEYANCES
5.701: Introduction
5.702: Fraudulent Conveyances
5.703: Voluntary Conveyances
5.704: Property That May Be Recovered
5.705: Validity of the Transaction
5.706: Remedies
APPENDIX 5-1: WARRANT FOR DISTRESS
APPENDIX 5-2: FRAUDULENT CONVEYANCE
APPENDIX 5-3: VOLUNTARY CONVEYANCE
APPENDIX 5-4: MEMORANDUM OF LIS PENDENS
CHAPTER 6: JUDGMENTS
6.1: INTRODUCTION
6.2: ENFORCEMENT OF AN EQUITABLE DECREE
6.3: PERFECTION OF A JUDGMENT LIEN ON REAL ESTATE
6.301: Docketing the Judgment
6.302: When the Judgment Lien Arises
6.303: Jurisdiction
6.304: Duration of the Judgment Lien
6.305: Protection of a Junior Lienor
6.306: Release of the Judgment Lien
6.4: EXECUTION AGAINST TANGIBLE PERSONAL PROPERTY
6.401: Types of Execution
6.402: When Execution Can Issue
6.403: Against Whom Execution Can Issue
6.404: Execution of the Lien
6.405: Property Subject to Levy
6.406: Exemptions from Levy
6.407: Fraudulent Conveyances
6.408: Conflicts
6.409: What Constitutes a Levy
6.410: Sale
6.5: EXECUTION AGAINST INTANGIBLE PERSONAL PROPERTY
6.501: The Execution Lien
6.502: Duration of the Lien
6.503: Property Subject to the Lien
6.504: Practical Considerations
6.6: GARNISHMENT
6.601: Definition
6.602: Institution of Garnishment Proceedings
6.603: Proceedings
6.604: Money Other Than Wages Subject to Garnishment
6.7: INTERROGATORIES TO A DEBTOR
6.701: In General
6.702: Procedure in Circuit Court
6.703: Procedure in District Court
6.704: Discovery of New Assets
6.8: CREDITORS’ SUIT TO ENFORCE A JUDGMENT LIEN
6.801: Introduction
6.802: Prerequisites
6.803: Preliminary Considerations
6.804: Which Property to Pursue?
6.805: Proper Parties
6.806: Where to Bring Suit
6.807: Pleading
6.808: Proceedings
6.809: Conclusion
6.9: SUSPENSION OF DRIVING PRIVILEGES
6.901: Introduction
6.902: Prerequisites
6.903: Procedure
6.904: Exceptions
6.905: Suspension of Driving Privileges Because of an Out-of-State Judgment
6.906: Satisfaction Defined
6.907: Installment Payments
6.908: Duration of Suspension
6.909: Registration of Vehicle in Another’s Name
6.910: Application to Nonresidents
6.911: Escrow of Funds Pending Judgment
APPENDIX 6-1: WRIT OF FIERI FACIAS (CIRCUIT COURT, CC-1477)
APPENDIX 6-2: LETTER TO CLERK
APPENDIX 6-3: LETTER TO SHERIFF
APPENDIX 6-4: NOTICE OF LIEN
APPENDIX 6-5: LETTER TO ASSET HOLDER
APPENDIX 6-6: (reserved)
APPENDIX 6-7: COMPLAINT
APPENDIX 6-8: NOTICECMOTION FOR APPOINTMENT OF COMMISSIONER IN CHANCERY
APPENDIX 6-9: DECREE OF REFERENCE APPOINTING A COMMISSIONER IN CHANCERY
APPENDIX 6-10: NOTICE THAT COMMISSIONER IN CHANCERY WILL FILE REPORT
APPENDIX 6-11: REPORT OF COMMISSIONER IN CHANCERY
APPENDIX 6-12: DECREE FOLLOWING COMMISSIONER’S REPORT (APPROVING THE REPORT, APPOINTING A SPECIAL COMMISSIONER, AND ORDERING SALE OF THE PROPERTY)
APPENDIX 6-13: ADVERTISEMENT OF SALE
APPENDIX 6-14: NOTICECMOTION TO CONFIRM SALE
APPENDIX 6-15: DECREE CONFIRMING SALE
APPENDIX 6-16: SUPPLEMENTAL REPORT OF COMMISSIONER IN CHANCERY
APPENDIX 6-17: NOTICE–MOTION TO CONFIRM REPORT OF SPECIAL COMMISSIONER
APPENDIX 6-18: REPORT OF SPECIAL COMMISSIONER
APPENDIX 6-19: SPECIAL WARRANTY DEED
APPENDIX 6-20: SECOND REPORT OF SPECIAL COMMISSIONER
APPENDIX 6-21: DECREE CONFIRMING REPORT AND DISCHARGING SPECIAL COMMISSIONER
APPENDIX 6-22: ABSTRACT OF JUDGMENT (FORM DC-465)
APPENDIX 6-23: DETINUE SEIZURE ORDER (FORM DC-416)
APPENDIX 6-24: WRITS OF POSSESSION AND FIERI FACIAS IN DETINUE (FORM DC-468)
APPENDIX 6-25: WRIT OF FIERI FACIAS (FORM DC-467)
APPENDIX 6-26: GARNISHMENT DISPOSITION (FORM DC-453)
CHAPTER 7: FEDERAL, FOREIGN, AND FOREIGN STATE JUDGMENTS
7.2: ENFORCEMENT OF JUDGMENTS AGAINST THE REAL PROPERTY OF A JUDGMENT DEBTOR
7.201: Judgments of Federal Courts Located in Virginia
7.202: Judgments of Federal Courts Located Outside Virginia
7.203: Enforcement of a Federal Judgment by a Judicial Sale
7.3: ENFORCEMENT OF FEDERAL JUDGMENTS AGAINST THE PERSONAL PROPERTY OF THE JUDGMENT DEBTOR
7.301: Writ of Execution
7.302: Prejudgment Remedies
7.303: Discovery of Assets
7.4: ENFORCEMENT OF FOREIGN STATE COURT JUDGMENTS
7.401: In General
7.402: Registration
7.403: Action on a Judgment
7.5: ENFORCEMENT OF FOREIGN COUNTRY MONEY JUDGMENTS
7.501: In General
7.502: Definition of “Foreign Country Money Judgment”
7.503: Enforceable Judgments
7.504: Standards for Recognition of a Foreign-Country Judgment
7.505: Relevance of Personal Jurisdiction
7.506: Permissive Stay of Proceedings
7.6: EXEMPTIONS FROM EXECUTION AND OTHER LEGAL PROCESSES
7.601: In General
7.602: Exemptions
APPENDIX 7-1: ABSTRACT OF JUDGMENT (FEDERAL COURT)
APPENDIX 7-2: CERTIFICATION OF JUDGMENT
APPENDIX 7-3: POSTJUDGMENT INTERROGATORIES
APPENDIX 7-4: LETTER TO CLERK
APPENDIX 7-5: AFFIDAVIT OF LAST KNOWN ADDRESSES
APPENDIX 7-6: COMPLAINT (FEDERAL COURT)
CHAPTER 8: THE FEDERAL INSOLVENCY STATUTE AND THE FEDERAL TAX LIEN
8.2: THE FEDERAL INSOLVENCY STATUTE
8.201: In General
8.202: Exception for Federal Tax Liens and Certain Other Federal Liabilities.
8.203: Situations to Which the Federal Insolvency Statute Applies.
8.204: Act of Bankruptcy
8.3: THE FEDERAL TAX LIEN
8.301: In General
8.302: Assessment
8.303: Notice and Demand
8.304: Failure to Pay
8.305: Duration
8.4: PROPERTY TO WHICH THE FEDERAL TAX LIEN ATTACHES
8.5: FILING OF THE FEDERAL TAX LIEN
8.6: PRIORITY OF THE FEDERAL TAX LIEN
8.7: PARTIES DEFEATING THE UNFILED FEDERAL TAX LIEN
8.701: In General
8.702: Purchasers
8.703: Mechanics’ Lienors
8.704: Holders of Security Interests
8.705: Judgment Lien Creditors
8.706: Simultaneous Attachment
8.8: PARTIES DEFEATING THE FILED FEDERAL TAX LIEN
8.801: In General
8.802: Securities
8.803: Motor Vehicles
8.804: Personal Property Purchased at Retail
8.805: Personal Property Purchased in Casual Sale
8.806: Personal Property Subject to Possessory Lien
8.807: Real Property Tax and Special Assessment Liens
8.808: Residential Property Subject to Mechanics’ Liens for Repairs and Improvements
8.809: Attorneys’ Liens
8.810: Certain Insurance Contracts
8.811: Deposit Secured Loans
8.9: PURCHASE MONEY SECURITY INTERESTS
8.10: STATE TAX LIENS
8.11: FUTURE ADVANCES
8.12: REQUESTING IRS TO REMOVE A FEDERAL TAX LIEN
8.1201: In General
8.1202: Statute of Limitations
8.1203: Release
8.1204: Withdrawal
8.1205: Discharge
8.1206: Subordination
8.1207: Nonattachment
8.13: PROCEEDINGS TO REMOVE A FEDERAL TAX LIEN
8.1301: In General
8.1302: Collection Due Process
8.1303: Judicial Sales
8.1304: Nonjudicial Sales (Sales by a Trustee of a Deed of Trust)
8.14: ESTATE AND GIFT TAX LIENS
APPENDIX 8-1: NOTICE OF FEDERAL TAX LIEN
CHAPTER 9: BANKRUPTCY: ITS EFFECT ON THE ENFORCEMENT OF LIENS AND JUDGMENTS
9.1: INTRODUCTION
9.101: In General
9.102: Subject Matter Jurisdiction
9.103: Common Types of Bankruptcy Relief
9.104: Types of Bankruptcy Claims
9.105: The Bankruptcy Estate
9.106: The Automatic Stay
9.107: Adequate Protection
9.2: THE TREATMENT AFFORDED CERTAIN ASSETS DURING BANKRUPTCY
9.201: Exempt Property
9.202: Entirety Property
9.203: Cash Collateral
9.3: PROTECTION AND ENFORCEMENT OF LIENS AND JUDGMENTS DURING BANKRUPTCY
9.301: Initial Proceedings
9.302: Proof of Claim
9.303: Motions Concerning the Use of Cash Collateral
9.304: Objections to Discharge and to Dischargeability
9.305: Motions to Lift the Automatic Stay
9.306: Reaffirmation Agreements
9.4: SALE OR OTHER USE DURING BANKRUPTCY OF ASSETS SUBJECT TO LIENS
9.401: Sales Free and Clear of Liens
9.402: Imposition of Junior or Senior Liens
9.403: Imposition of Administrative Charges
9.5: AVOIDANCE OR SUBORDINATION OF LIENS IN BANKRUPTCY
9.501: Preferences
9.502: Fraudulent Transfers Under the Bankruptcy Code
9.503: Fraudulent and Voluntary Transfers Under State Law
9.504: Leveraged Buyouts
9.505: Disallowance Under Section 502(d)
9.506: Equitable Subordination
9.507: Lien Avoidance Under Section 506
9.6: LETTERS OF CREDIT IN BANKRUPTCY
9.601: In General
9.602: Enforcement: Twist Cap and Beyond
9.7: MOTIONS TO DISMISS ON THE BASIS OF A BAD-FAITH FILING 574
9.8: TREATMENT OF COLLATERAL THAT IS NOT DISPOSED OF DURING BANKRUPTCY
9.801: Methods of Disposition
9.802: Chapter 11 Plans
9.803: Chapter 13 Plans
APPENDIX 9-1: NOTICE OF APPEARANCE
APPENDIX 9-2: MOTION FOR RELIEF FROM STAY
CHAPTER 10: RECEIVERSHIP AS A MEANS OF SATISFYING OBLIGATIONS DUE A CREDITOR
10.1: THE RECEIVERSHIP: AN OVERVIEW
10.101: Introduction
10.102: Types of Receivers and Their Roles
10.103: Statutory Remedies or Equity Jurisprudence
10.2: STATUTORY REMEDIES: CORPORATE DISSOLUTION AND APPOINTMENT OF A RECEIVER TO SATISFY A CREDITOR’S CLAIM
10.201: In General
10.202: Present Statutory Provisions
10.203: Insolvency
10.204: Effectuating and Ordering the Judicial Dissolution of a Corporation
10.205: The Appointment of a Receiver for a Corporation
10.206: The Permanent Receiver Charged with Liquidation of a Corporation
10.3: THE UNSECURED CREDITOR’S NON-STATUTORY REMEDIES
10.301: In General
10.302: The Nunnally Rule
10.303: Continuing Validity of the Nunnally Rule
10.4: APPOINTMENT OF A RECEIVER TO ENABLE A SECURED CREDITOR TO ENFORCE ITS CLAIM AND PRESERVE AND PROTECT THE LIENHOLDER’S COLLATERAL
10.401: Real Property
10.402: Personal Property
10.403: The Receiver’s Expenses
10.5: CONSIDERATIONS OF THE COURT IN APPOINTING A RECEIVER
10.501: Discretionary Standard
10.502: Considerations
10.503: Presumption Against the Appointment of a Receiver
10.504: Showing Required
10.6: THE THREE TYPES OF SPECIAL RECEIVERS AND THEIR DUTIES
10.601: The Permanent Receiver
10.602: The Receiver Pendente Lite (Custodian)
10.603: The Emergency Receiver
10.7: THE MECHANICS OF APPOINTING A RECEIVER
10.701: Appointment of a Receiver
10.8: OTHER CONSIDERATIONS IN THE APPOINTMENT OF A RECEIVER
10.801: Who May Be a Receiver?
10.802: The Receiver’s Bond
10.803: Compensation of the Receiver
10.804: Receiver’s Certificates
10.805: Priority for Certain Administrative Claims
10.806: Termination of the Receivership
10.9: PROPERTY IN THE HANDS OF A RECEIVER
10.901: The Receivership Does Not Alter Creditor Priorities
10.902: The Assets Held by the Receiver Are Immune from Creditor Interference
10.903: The Receiver Holds the Property Subject to the Court’s Directions
10.904: Preservation and Distribution of Real Estate
10.10: THE CREDITOR’S RIGHT TO BE COMPENSATED FOR ITS CLAIM WHEN A RECEIVER HAS BEEN APPOINTED
10.1001: In General
10.1002: .The Secured Creditor
10.1003: The Unsecured Creditor
10.1004: Unmatured and Contingent Claims
10.11: INTERPLAY OF RECEIVERSHIP LAW WITH THE BANKRUPTCY CODE
10.1101: Receiver’s Role When the Entity Files for Bankruptcy Protection
10.1102: Involuntary Filing Considerations
10.1103: Environmental Law Considerations
10.12: KEY DIFFERENCES BETWEEN THE VIRGINIA CODE AND THE UNIFORM COMMERCIAL REAL RECEIVERSHIP ACT
10.1201: In General
10.1202: Appointment
10.1203: Rights and Powers of Receivers
10.1204: Bonds
10.1205: Receiver as a Lien Creditor
10.1206: Security Agreement Covering After-Acquired Property
10.1207: Stay; Injunction
APPENDIX 10-1: VERIFIED PETITION FOR APPOINTMENT OF A SPECIAL RECEIVER
APPENDIX 10-2: CONSENT ORDER APPOINTING SPECIAL RECEIVER PURSUANT TO VIRGINIA CODE § 8.01-591
CHAPTER 11: FAIR DEBT COLLECTION PRACTICES ACT
11.2: RESEARCH MATERIALS AND PROFESSIONAL ASSOCIATIONS
11.3: NATURE OF THE FAIR DEBT COLLECTION PRACTICES ACT
11.301: Congressional Purpose
11.302: Applicability to Attorneys
11.303: Exception for Formal Pleadings
11.304: Initial Communication
11.305: Applicability Limited to “Consumer” Debt
11.306: Applicability to Particular Types of Debts
11.307: Applicability Limited to “Debt Collectors”
11.308: Applicability to Subsequent Debt Collectors
11.309: Applicability to Litigation
11.310: Applicability to Attorneys
11.4: VIOLATIONS OF THE FDCPA
11.401: Communications
11.402: Harassment or Abuse
11.403: False or Misleading Representations
11.404: Unfair Practices
11.405: Application of Payments
11.406: Venue
11.5: REMEDIES
11.501: Civil Liability
11.502: Administrative Enforcement
11.503: Equitable Relief
11.504: Setoff
11.505: Jurisdiction
11.506: Standing
11.507: Right to Jury Trial
11.508: Statute of Limitations
11.6: DEFENSES
11.601: “Bona Fide Error”
11.602: “Good Faith Reliance”
11.7: BANKRUPTCY CASES
11.701: Applicability of the FDCPA in Bankruptcy Cases
11.702: Proofs of Claim
11.703: Property of the Estate
11.704: Standing of the Trustee or Debtor in Possession
11.705: Jurisdiction
11.706: Statute of Limitations
11.707: Abandonment
11.708: Effect of Closing the Case
11.709: Post-Discharge Collection Efforts
APPENDIX 11-1: CROSS-REFERENCE TABLE
APPENDIX 11-2: FDCPA NOTICE
APPENDIX 11-3: COVER LETTER
APPENDIX 11-4: “SAFE HARBOR” LETTER
TABLE OF AUTHORITIES
Tyler P. Brown, Hunton & Williams / Richmond
Tyler P. Brown, editor of this book, is a partner with Hunton & Williams LLP in Richmond, and is chair of the firm’s Bankruptcy, Restructuring & Creditors’ Rights Practice Group. Tyler has substantial experience handling complex bankruptcy matters from both the creditor and the debtor sides. He regularly represents creditors committees and handles loan workouts, lender liability claims, contract disputes, landlord-tenant disputes and other commercial litigation at the trial and appellate levels. Mr. Brown provides transactional and lending advice to commercial, consumer and mortgage lenders, private equity firms and hedge funds, and public and private companies. He has extensive litigation experience with adversary proceedings and contested matters in U.S. Bankruptcy Court and commercial litigation in Virginia state and federal courts.
Mr. Brown received his J.D. in 1987 from Washington & Lee School of Law, where he served as Editor-in-Chief of the Washington & Lee Law Review. Following law school, he clerked for the Honorable Richard H. Poff, Justice of the Supreme Court of Virginia, before joining Hunton & Williams in 1988. Mr. Brown is a Fellow in the American College of Bankruptcy, is a member of the Board of Directors of the Greater Richmond Bar Foundation, previously served as a member of the Board of Governors of the Bankruptcy Section of the Virginia State Bar, and is a past President of the Bar Association of the City of Richmond.
Harold E. Bell, Stokes Timms Bell & Vaiden, P.C. / Norfolk
Harold E. Bell, author of Chapter 4, is a member of Stokes Timms Bell & Vaiden, P.C. in Norfolk. Mr. Bell received a B.S. from Wofford College in 1975, an M.B.A. from Old Dominion University in 1978, and a J.D. from the T. C. Williams School of Law, University of Richmond, where he served as a member of the University of Richmond Law Review, in 1984. Mr. Bell’s practice focuses on corporate and business law, shareholder agreements and disputes, employment law/compensation arrangements, commercial transactions, mergers and acquisitions, commercial real property (acquisitions, dispositions, leases, finance), and estate planning. He is member of the Virginia State Bar and the Norfolk and Portsmouth Bar Associations.
Paul S. Bliley, Jr., Williams Mullen / Richmond
Mr. Bliley, author of Chapter 1, is a partner at Williams Mullen’s Richmond office. Chip Bliley’s practice is focused on bankruptcy, creditor’s rights, problem loans, foreclosures, workouts, collateral liquidation and commercial litigation.
Mr. Bliley has dealt with a broad range of creditor’s rights and bankruptcy issues. He has extensive experience in asset sales and acquisitions, protection of secured positions, negotiation of reorganization plans, foreclosures and other issues that frequently arise in the debtor/creditor relationship. He has also represented lending institutions in a broad variety of real estate title issues, including title insurance claims, mechanic’s lien coverage issues and related issues. He has represented banks, lending institutions, consumer finance companies, mortgage companies and mortgage servicers routinely in connection with business and consumer bankruptcies and financial restructures.
Most recently Mr. Bliley has been engaged in the representation of numerous landlords in various bankruptcy cases, enforcing and protecting the landlords’ rights in bankruptcy. Mr. Bliley also has extensive experience in complex motions for relief from the stay in bankruptcy representing both secured lenders and landlords in bankruptcy.
He is a member of the Bankruptcy Section of the Richmond Bar Association and has serviced as its chairman. He also speaks often to various groups on creditor’s rights issues, including foreclosure and eviction issues. Mr. Bliley is the author to The Enforcement of Deeds of Trust Section in the publication of the Virginia State Bar entitled “Enforcement of Liens and Judgments in Virginia.” Mr. Bliley is listed among Virginia Business magazine’s “Legal Elite,” The Best Lawyers in America for Banking Law and Bankruptcy and Creditor-Debtor Rights Law and Virginia Super Lawyers magazine for Banking, and is recognized as a leading bankruptcy attorney in the U.S. by Chambers USA.
His professional affiliations include membership in the Virginia State Bar, the Virginia Bar Association, the American Bar Association and the Richmond Bar Association. He is admitted to practice before the U.S. Supreme Court, the Virginia Supreme Court, the U.S. Court of Appeals for the Fourth Circuit, and all Bankruptcy Courts in the Eastern and Western Districts of Virginia.
A 1974 graduate of the University of Virginia School of Law, Mr. Bliley received his bachelor’s degree in business administration (accounting) with high honors from the University of Notre Dame in 1971. In addition, Martindale Hubbell has rated Mr. Bliley an AV attorney, its highest rating available.
Sarah Beckett Boehm, McGuireWoods LLP / Richmond
Sarah B. Boehm, co-author of Chapter 2, is a senior counsel at McGuireWoods LLP in Richmond. Her practice focuses on representing corporate debtors, lenders, and creditors in a variety of business Chapter 11 cases. Sarah also has experience representing creditors in matters involving Chapter 5 causes of action, automatic stay, and discharge injunction violations. She received her J.D. from the University of Richmond and joined the firm after clerking for the Honorable Blackwell N. Shelley and the Honorable Douglas O. Tice, Jr., both from the U.S. Bankruptcy Court for the Eastern District of Virginia. She is the Chair of the Bankruptcy Section of the Virginia State Bar and the Chair-Elect of the Bankruptcy Section of the Bar Association of the City of Richmond.
Thomas E. duB. “Ted” Fauls, Troutman Sanders LLP / Richmond
Thomas E. duB. “Ted” Fauls, author of Chapter 5, is a partner with Troutman Sanders LLP and is the managing partner of the Richmond office. Mr. Fauls’ primary practice areas are banking, commercial lending, workout, and bankruptcy and creditors’ rights. He earned a B.A. from William and Mary in 1983 and a law degree from the Marshall-Wythe School of Law at William & Mary in 1986.
Mr. Fauls is a member of the Virginia Bar Association’s Business Bankruptcy and Business Law Sections as well as the American Bar Association’s Subcommittee on Secured Creditors of the Business Bankruptcy Committee and Subcommittee on Secured Transactions of the Uniform Commercial Code Committee. His professional recognitions include Best Lawyers’ 2012 Richmond Securitization and Structured Finance Law Lawyer of the Year; Best Lawyers in America in Banking Law (2008-present); Financial Services Regulation Law (2008-present); Securitization & Structured Finance Law (2008-Present); and Consumer Law, 2014; and Virginia Super Lawyer in Securities & Corporate Finance Law (2006, 2008) and in Banking Law (2009-2015). He has achieved Martindale-Hubbell’s highest rating for legal ability and ethical standards.
He is a member of the Virginia State Bar, the Virginia Bar Association, and the American Bar Association.
Leon P. Ferrance, Roanoke
Leon P. Ferrance, author of Chapter 6, earned a B.A. from the University of Rhode Island in 1972 and a J.D. from Washington and Lee University in 1976. He worked for the Roanoke Commonwealth’s Attorney’s Office from 1976 until 1979 and has been in private practice since 1979. Mr. Ferrance is a member of the American Collectors Association, the National Health Care Collectors Association, and the National List of Attorneys. He is a frequent speaker and author on debt collection issues for Virginia CLE and local civic groups.
Mr. Ferrance is the author of numerous articles on creditor rights, was a keynote speaker at the National Healthcare Collectors Association regarding Medicare Compliance and Fraud, a lecturer on the Fair Debt Collection Act, and has lectured on several occasions for the Virginia State Bar’s continuing legal education courses. He has authored for the Virginia State Bar Enforcement of Judgment Liens on Attachments and Collection of Debt and has lectured on several occasions on issues involving landlord-tenant issues and mechanic’s liens. Mr. Ferrance’s active practice encompasses much of southwest Virginia in the areas of debt collection, construction litigation, and divorce.
Douglas M. Foley, McGuireWoods LLP / Norfolk
Douglas M. Foley, author of Chapter 2, is a partner in the Norfolk office of McGuireWoods LLP. Mr. Foley’s practice consists primarily of bankruptcy, creditors’ rights, and commercial litigation. He is admitted to practice before all Virginia and North Carolina courts, the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit, the United States Court of Appeals for the Federal Circuit, and the United States Court of Federal Claims. Mr. Foley earned a B.A., cum laude, from Mary Washington College and a J.D., cum laude, from George Mason University School of Law. He is a member of the Virginia State Bar and the North Carolina State Bar.
Mr. Foley has substantial experience representing large and small creditors and debtors in a variety of business Chapter 11 proceedings. He has had significant involvement in many of the largest Chapter 11 cases filed in the Eastern District of Virginia, including Workflow Management Inc., Circuit City Stores Inc., Movie Gallery Inc., Rowe Furniture Inc., US Airways Group, Inc., AMF Bowling Worldwide, Inc., Best Products Company, Inc., Heilig-Meyers Company, Trak Auto Corporation, and FasMart Convenience Stores.
In 2001, he became certified in business bankruptcy law by the American Board of Certification Standards Committee, an affiliate of the American Bankruptcy Institute. He focuses his practice on all aspects of insolvency and debtor-creditor issues and has spoken at various bankruptcy bar and trade association meetings on bankruptcy topics.
Mr. Foley also served as chairperson of McGuireWoods’ Restructuring and Insolvency Department from September 2006 through August 2012. In 2011, Mr. Foley was inducted into the American College of Bankruptcy (Class XXII).
He is also a past chairperson of the Virginia State Bar Bankruptcy Law Section Board of Governors.
Mr. Foley is a past president of the Tidewater Bankruptcy Bar Association and is a past member of The Virginia Bar Association Bankruptcy Law Section Council. In 2003, he was named one of Virginia’s “Legal Elite” in the field of bankruptcy and creditors’ rights by Virginia Business magazine and was named a Virginia “Super Lawyer” by Law & Politics, 2006-2009, Corporate Counsel Edition. He was also named one of the “Best Lawyers in America” by Woodward and White, 2005-2010.
Dion W. Hayes, McGuireWoods LLP / Richmond
Dion W. Hayes, co-author of Chapter 9, is a partner in the Richmond office of McGuireWoods LLP. Mr. Hayes received his B.A. from the University of Virginia and his J.D. from the William and Mary School of Law. Since 1992, he has focused his practice on insolvency law and financial restructuring, including bankruptcy, out-of-court workouts, distressed asset acquisitions and recapitalizations, and related litigation. He is experienced in representing corporate debtors, official and unofficial committees of creditors or equity holders, asset acquirers, post-confirmation plan administrators, liquidating trustees, indenture trustees, senior lenders, bondholders, and other stakeholders, in bankruptcy courts and other courts throughout the United States. He has recently appeared in bankruptcy courts and other federal courts in Delaware, Florida, New York, Texas, and Virginia. He also has substantial cross-border insolvency experience.
Mr. Hayes has also been selected for inclusion in The Best Lawyers in America (Bankruptcy and Creditor/Debtor Rights), Virginia Super Lawyers (Bankruptcy & Creditor/Debtor Rights, Banking, Business Litigation), and Virginia’s Legal Elite (Bankruptcy). He is admitted to the bars of Maryland, New York, Virginia, and Washington, D.C.
In the area of Ponzi scheme cases, he has recently represented a major bank, litigation target, and plan sponsor in the Rothstein, Rosenfeldt, & Adler, P.L. chapter 11 case in the Southern District of Florida and in numerous related litigations in state and federal courts in South Florida.
Steven L. Higgs, Steven L. Higgs, P.C. / Roanoke
Steven L. Higgs, author of Chapter 11, is the principal of Steven L. Higgs, P.C., in Roanoke. He is certified in Creditors’ Rights and in Consumer Bankruptcy Law by the American Board of Certification. His areas of practice include representing creditors in bankruptcy cases, creditors’ rights, civil litigation, and commercial real estate. Mr. Higgs earned a B.A. from Washington and Lee University in 1980 and a J.D. in 1983 from the T.C. Williams School of Law, University of Richmond. He is a frequent speaker for Virginia CLE and is a contributing author of four Virginia Lawyers Practice Deskbooks: Bankruptcy Practice in Virginia (3d ed. 2012), Debt Collection for Virginia Lawyers—A Systematic Approach (6th ed. 2015), Enforcement of Liens and Judgments in Virginia (7th ed. 2015), and The Virginia Lawyer—A Deskbook for Practitioners (5th ed. 2015). Mr. Higgs is the author or co-author of more than 100 articles, seminar outlines, and book chapters on bankruptcy law, creditors’ rights law, legal ethics, and real estate foreclosures. He is a past president of the Roanoke Bar Association and a member of the American Bar Association, the Virginia State Bar, and the American Bankruptcy Institute. He is a Fellow of the American Bar Association, the Virginia Law Foundation, the Roanoke Law Foundation, the Litigation Counsel of America, and the National Conference of Bar Presidents.
John H. Maddock III, McGuireWoods LLP / Richmond
John H. Maddock III, co-author of Chapter 9, is a partner in the Richmond office of McGuireWoods LLP. His practice focuses on insolvency and debtor-creditor issues, including bankruptcy, state creditors’ rights law, and commercial litigation. He joined the firm after clerking for the Honorable Douglas O. Tice, Jr., United States Bankruptcy Judge in Richmond, Virginia, and the Honorable Conrad B. Dubenstein, Chief United States Bankruptcy Judge in Brooklyn, New York. He has been named a Virginia Legal Elite in business bankruptcy law and is a past chair of the Bankruptcy Section of the Richmond Bar Association.
Richard C. Maxwell, Woods Rogers PLC / Roanoke
Richard C. Maxwell, author of Chapter 7, is a member of the firm of Woods Rogers PLC. He is head of the firm’s Bankruptcy and Creditors’ Rights Group. His practice area includes bankruptcy and creditors’ rights, commercial law, and equine law. He is a Fellow in the American College of Bankruptcy. He is also the former Director and Chairman of the Bankruptcy Section of the Virginia State Bar, the former Chairman of the Advanced Consumer Bankruptcy Law Conference, and serves on the planning committee for the Mid-Atlantic Institute on Bankruptcy and Reorganization Practice. He is the editor of the materials on Enforcement of Federal Liens and Foreign State Court Judgments contained in Enforcement of Liens and Judgments in Virginia published by the Virginia Law Foundation. Mr. Maxwell earned a bachelor’s degree from Lafayette College, a masters of business administration degree from Eastern Michigan University, and a law degree, cum laude, from the University of Richmond where he was a member of the Order of the Coif. He has been recognized in the Best Lawyers in America, Super Lawyers, and named as a Legal Elite by the Virginia Business magazine.
Jane Ostdiek, Roanoke
Jane Ostdiek, co-author of Chapter 6, is an associate at the Law Offices of Leon P. Ferrance, P.C. in Roanoke. Ms. Ostdiek received her B.A. from the University of Maryland, College Park in 2012, and her J.D. from William & Mary School of Law in 2015, served as the Senior Notes Editor of the Business Law Review. She competed with William & Mary’s Moot Court team, and received an “Outstanding Oral Advocate” award at the 23d Annual Duberstein Bankruptcy Moot Court Competition in 2015, and worked as a graduate fellow at the Center of Legal and Court Technology from 2012-2015. Ms. Ostdiek’s practice focuses on collections law, domestic law, and estate planning. She is a member of the Virginia State Bar.
Doan T. Phan, McGuireWoods LLP / Tysons
Doan T. Phan, co-author of Chapter 2, is an associate at McGuireWoods where she focuses her practice on bankruptcy and financial restructuring, including corporate bankruptcy proceedings, out-of-court workouts, and debtor-creditor issues. She also has experience representing landlords, tenants, and parties to executory contracts and defendants in bankruptcy litigation. Prior to joining McGuireWoods, Ms. Phan served as a law clerk to the Honorable Brian F. Kenney in the U.S. Bankruptcy Court for the Eastern District of Virginia. Ms. Phan’s articles include “Chapter 13 and Domestic Support Obligations”, Virginia State Bar Bankruptcy Law News, Fall 2018, and “Redefining Lincoln’s Law: How to Shape the Theory of Implied Certifications Post-Escobar,” J. L. Econ & Pol’y, 2017.
Nancy A. Rossner, The Community Tax Law Project/ Richmond
Nancy A. Rossner, author of Chapter 8, is a senior attorney with The Community Tax Law Project (CTLP), the first independent low income taxpayer clinic in the nation. She received her B.A. Summa Cum Laude from the University of Binghamton, State University of New York, where she became a member of the Phi Eta Sigma National Honor Society and the Phi Beta Kappa Society and served as a teaching assistant for the course Philosophy: Law and Justice. She received her J.D. from the University of Richmond, T.C. Williams School of Law where she served as the Annual Survey Editor for the Journal of Law and Technology. Ms. Rossner is a member of the Virginia State Bar, the Metro Richmond Women’s Bar Association, and the American Bar Association Tax Section’s Pro Bono and Tax Clinic Committee. She contributed to the 6th Edition of the ABA Tax Section publication, “Effectively Representing Your Client Before the IRS” and co-authored an article for Virginia Lawyer, “Affordable Care Act and the IRS: Implementation and Now Enforcement.” Ms. Rossner represents lowincome taxpayers in disputes with the Internal Revenue Service and the Virginia Department of Taxation at all levels of controversy including audits, collections, innocent spouse relief, and U.S. Tax Court. Ms. Rossner has served on numerous panels, at both regional CLE’s and national conferences, addressing income tax matters and regularly presents at community events on tax issues affecting Virginia taxpayers.
Jessica O. Taylor, McGuireWoods LLP/ Richmond
Jessica O. Taylor, co-author of Chapter 9, is an associate in the Richmond office of McGuireWoods LLP. Her practice focuses on insolvency and debtorcreditor issues, including bankruptcy, state creditors’ rights law, and commercial litigation. She joined the firm after clerking for the Honorable Brian F. Kenney, United States Bankruptcy Judge in Alexandria, Virginia. Her judicial experience extends to the U.S. Bankruptcy Court for the Southern District of New York, where she interned for the Honorable Allan L. Gropper during her second year of law school.
James L. Windsor, Kaufman & Canoles, P.C. / Newport News
James L. Windsor, author of Chapter 3, is the Managing Director of the Virginia Beach office of Kaufman & Canoles, P.C. and is the Chairman of the firm’s Real Estate Claims, Title Insurance and Mortgage Default Solutions Group. Mr. Windsor is an AV Preeminent-rated lawyer with over 30 years of experience and expertise in counseling and litigation involving title insurance, real property, construction, mechanics’ liens, bond claims, mortgage lending, creditors’ rights, and commercial and banking law. He earned a B.S. degree, cum laude, from James Madison University and a J.D. from the T.C. Williams School of Law at the University of Richmond. Mr. Windsor is a member of the Virginia State Bar, the American Bar Association, the Virginia Beach Bar Association, and the Virginia Land Title Association. Mr. Windsor lectures frequently before construction and real estate professionals, lenders, lawyers, and others involved in construction and real estate law. He has written a book, a law review article, and other articles on topics of interest to the construction and real estate industry. Mr. Windsor was selected by peers and recognized by Virginia Business Magazine as a member of “Virginia’s Legal Elite” in 2003, 2004, 2007-2014 in the area of Construction Law. He was also listed in Virginia Super Lawyers for 2006, 2010-2013, and 2015 in the area of Real Estate.
