I have just read a decision of the Ontario Superior Court of Justice dealing with an important aspect of real estate in receivership in Canada. The case is about when the Debtor/real estate owner does not believe that the court-appointed receiver has made proper decisions about the listing of the property for sale and the sale of a commercial property in receivership.
It also deals with the role of receivers and how they interact with the debtor, secured lenders and unsecured creditors.
A receivership is a legal process available to secured creditors, whereby a company’s affairs, business and property are entrusted to a receiver to manage and eventually sell the assets. Secured lenders may enforce their security to recover loans when the borrower defaults in its payment obligations relating to the secured debt. This remedy available to secured creditors is known as receivership, while the debtor is said to be “in receivership“.
If a business debtor does not make payments or otherwise defaults on a secured loan, the secured creditor would have the right to appoint a receiver to collect the money owed. Before appointing a receiver, a secured creditor must first issue a “Section 244” notice of intention to enforce security. This is a notification that secured creditors must send to defaulting debtors before appointing a receiver. Section 244 refers to that section number in the Bankruptcy and Insolvency Act (Canada) (BIA).
The notice states that the security covers certain assets, that the company in default owes a specified amount to the secured creditor, and that the creditor may enforce the security after 10 days. The company in default may waive the notice period and consent to the appointment of the receiver.
Under the BIA, only a licensed insolvency trustee (formerly called a trustee in bankruptcy) can be a receiver. No other party is licensed to administer the receivership process in Canada.
Types of Receivers In Receiverships
There are two types of receivers in receivership in Canada: (i) privately-appointed receivers; and (ii) Court-appointed receivers.
Privately-Appointed Receivers
A privately-appointed receiver is a licensed trustee who is appointed by a contract between the insolvency trustee and the secured creditor. A private receiver is typically used when there is no dispute to ranking among secured creditors or various claims to ownership of the company’s assets. The powers of a receiver listed in the security document give the privately appointed receiver more limited powers than a court-appointed receiver gets under a court order.
Court-Appointed Receivers
A receiver is court-appointed when the secured creditor makes an application to the court for the appointment of a receiver with more expanded powers. Like a privately-appointed receiver, a court-appointed receiver takes control of a company’s property because of financial distress and when there is a dispute among secured creditors and others regarding the ranking of secured claims and ownership of property.
Both kinds of receivers are tasked with protecting and preserving the value of the company or property and are certainly given broader powers by the court.
Duties and Responsibilities of a Receiver In Receivership
A Receiver is a licensed insolvency trustee appointed to manage and control the assets, property, or business of another person or entity, typically in a situation where the person or entity cannot manage their affairs due to financial difficulties, bankruptcy, or other reasons. In receivership in Ontario, a Receiver can be appointed either privately or through a court order.
Private Appointment
When a Receiver is appointed privately, it is typically done so through a contractual agreement between the Receiver and the secured creditor requiring the Receiver’s services. The Receiver’s duties and responsibilities may include:
Managing and controlling the assets, property, or business of the person or entity.
Collecting and managing debts, accounts receivable, and other financial obligations.
Paying bills, expenses, and other financial obligations.
Managing and overseeing the day-to-day operations of the business or property.
Identifying and realizing assets to convert them into cash.
Negotiating with creditors, suppliers, and other stakeholders to resolve disputes and improve the financial situation.
Preparing and submitting financial reports and statements to the appointing creditor and other stakeholders.
Providing advice and guidance primarily to the appointing creditor.
A privately appointed receiver needs to consult with and get approval from the appointing creditor for its proposed actions and activities. In a private appointment, the Receiver’s duty of care is mainly to the appointing creditor.
Court-Appointment
When in receivership a Receiver is appointed through a court order, many of the court-appointed receiver’s duties are the same as for a privately-appointed Receiver. The main differences though are that in receivership supervised by the Court, the court-appointed receiver:
Owes a duty of care to all parties.
Must obtain the approval of the Court for its actions and activities.
This case was heard in the Ontario Superior Court of Justice involving a court-appointed receiver appointed to sell real property. The Debtor (2184698 Ontario Inc.) challenged the Receiver’s real estate receivership process, alleging that it was not conducted in a commercially reasonable manner and was biased towards the lender (Rathcliffe Properties Inc.).
The Debtor’s Argument
The Debtor, being the property owner, claimed the Receiver breached its duty under s. 247 of the BIA to act in good faith and in a “commercially reasonable manner.” They alleged the Receiver set a low listing price for the real property ($4,500,000) potentially based on “liquidation basis” appraisals rather than “fair market value.” They also argued that the court-appointed receiver showed favouritism by consulting only the Lender about the realtor and listing price, denying the Debtor crucial information.
Finally, they argued that the Receiver withheld crucial information by not sharing its appraisals with the Debtor.
Receiver and Lender’s argument
They argued:
The Receiver acted properly by basing the listing price for the property in question on professional advice and independent appraisals.
Choosing not to share appraisals to avoid giving the Debtor an unfair advantage in the sale was proper.
Consulting the Lender due to their expertise and potential buyer network, while the Debtor lacked relevant information and consistently overestimated the property’s value, was also appropriate.
The Court’s Findings
The Court found it more efficient to address the substance of the motion, providing clarity and avoiding further delays. The Court dismissed the Debtor’s claims of a breach of the BIA, stating:
The Receiver was not obligated to share appraisals.
The listing price, based on professional advice from professinoals working in this kind of real estate market, did not breach the court-appointed receiver’s duties or the BIA.
Consulting the Lender was justifiable, aiming for the best interests of all stakeholders.
The Court considered the motion premature, stating concerns about the sale process can be raised at the Sale Motion, where a complete evidentiary record would be available.
Since the Court found no evidence of a breach of the BIA and dismissed the Debtor’s motion in this real estate receivership, the Court ordered the Debtor to pay costs to both the Receiver and the Lender. The Court also lifted an interim injunction the Debtor obtained stopping the Receiver from continuing the sales process.
Clashing Interests in Receivership: Lender vs. Stakeholders
The receiver’s duty to act in the best interests of all stakeholders can clash with the specific needs of the lender because the lender prioritizes recovering the debt owed to them, even if it means selling the property for a lower price. Conversely, the receiver must consider the interests of all stakeholders, including the debtor, and aim for the highest possible sale price, even if it takes longer.
Here’s how this tension plays out in this case:
The Lender’s Interest: The lender (Rathcliffe Properties Ltd.) wants to recover the $2.9 million loan it provided to the debtor (2184698 Ontario Inc.) as quickly as possible. They likely see the receivership and subsequent sale of the property as the most expedient way to recoup their investment.
The Receiver’s Dilemma: The court-appointed receiver has a fiduciary duty to act in the best interests of all stakeholders, not just the lender. This means they must strive to obtain the highest possible price for the property, under the circumstances, even if it delays the Lender’s recovery.
Conflicting Approaches: The debtor argued that the receiver’s listing price of $4,500,000 was too low and favoured a quick sale to satisfy the Lender’s debt. However, the court found no evidence of this, highlighting that the Receiver based the listing price on professional advice and appraisals. The court emphasized that the market ultimately determines the property’s value, not just the initial listing price.
This case demonstrates the inherent tension in receivership scenarios. While the Lender’s primary concern is recovering their debt, the receiver must balance this against the interests of all stakeholders, including maximizing the sale price for the benefit of all parties involved.
Key Takeaways From This In Receivership Case
This situation highlights the conflicting priorities often found in receivership proceedings. On one hand, financial institutions lenders are focused on getting back their money, while on the other, the Receiver has to consider the needs of all stakeholders involved, aiming to achieve the highest possible sale price to benefit everyone.
In Receivership: Conclusion
We experience these same issues whenever we act as a real estate receiver. We rely on real estate experts both for appraisals and for the receiver sale of real estate. We must rely on real estate professionals in order to show that we properly handled our duties as a real estate receiver.
I hope you enjoyed this real estate receiver in receivership Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring due to distressed real estate or other reasons? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or someone with too much personal debt.
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The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.
Real Estate Receiver Introduction to Real Estate Insolvency
Commercial real estate markets are constantly evolving, and with the recent upswing in defaulted real estate loans on commercial properties, lenders and borrowers are facing unprecedented challenges. I have observed the current market conditions from our ongoing real estate receiver files with keen interest. The landscape is evolving, presenting both challenges and opportunities for developers, lenders and real estate investors alike.
In this Brandon’s Blog post, from my perspective as a real estate receiver, I delve into the intricacies of the growing sector of real estate insolvency, offering (hopefully) valuable insights for both owners and lenders. This includes the challenges faced by developers, the growing demand for remedies in distressed properties, and the overall market dynamics. Join me as I explore the remedies available to navigate through these turbulent times.
Real Estate Receiver Overview of the Current Market Conditions
The real estate sector is currently navigating through dynamic market conditions that have been shaped by various factors. The recent upswing in defaulted commercial real estate loans serves as a signal of a continued downward trend in the market cycle. Developers, especially those with ongoing residential condominium projects, find themselves particularly vulnerable to unexpected upheavals.
Challenges Faced by Developers with In-Progress Projects
Developers face challenges during the construction phase. Delays, spiking costs, and inflation in construction expenses have eroded profit margins, leading to financial strains on developers.
Developers of residential real estate typically need to presell a significant portion of units to secure financing.
Construction cost inflation and pandemic-related disruptions have further complicated project economics.
Delays in construction schedules have been a common occurrence.
Developers in the real estate market are struggling with unprecedented challenges, with many facing insolvency issues. Adapting to changing market conditions and mitigating financial risks has become paramount. Legal experts note a growing demand for remedies across all types of distressed properties, highlighting the urgency in finding solutions to support developers and real estate investors.
Developers must navigate these challenges effectively by exploring various options such as mezzanine lending, private lending, and workout agreements. The evolving market dynamics require a proactive approach to address financial distress and ensure the successful completion of projects.
Growing Demand for Remedies in Distressed Properties
The growing demand for remedies in distressed properties underscores the need for collaborative efforts between lenders and borrowers to resolve defaults. Workout agreements and restructuring of loans offer potential solutions to mitigate financial risks and stabilize projects facing insolvency.
“It’s essential to establish trust and cooperation between borrowers and lenders to navigate through financial challenges effectively.”
Partnerships such as the conversion of mezzanine loans into equity demonstrate innovative approaches to address insolvency issues and support project completion. By exploring alternative solutions, stakeholders in the real estate sector can work towards sustainable outcomes and mitigate potential losses.
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Real Estate Receivership: Challenges in Residential Condominium Economics
In my role as a real estate receiver, I am intrigued by the complexities of residential condominium project economics, particularly in the face of obstacles such as construction delays and escalating costs. These variables can substantially affect the financial viability of such projects, necessitating developers to implement targeted risk mitigation strategies.
Impact of Construction Delays and Cost Inflation
One of the most critical aspects affecting condo projects is the occurrence of construction delays and cost inflation. During the construction phase, when financing is fixed, any delays can lead to financial strain as developers cannot generate income until the project’s completion. Typically, developers aim to presell a significant percentage of units to secure financing. However, the recent spike in construction costs, coupled with delays, has eroded profit margins.
Statistics Canada reported substantial inflation in construction costs.
Delays in project timelines can lead to increased expenses and reduced profitability.
Preselling units becomes challenging when costs cannot be accurately predicted.
Strategies for Developers to Mitigate Financial Risks
Developers facing these challenges must consider various strategies to safeguard their investments and navigate through uncertain economic conditions. Some effective risk mitigation strategies include:
Diversifying funding sources to reduce dependency on a single financing option.
Implementing robust project management techniques to minimize delays and cost overruns.
Engaging in transparent communication with stakeholders to manage expectations effectively.
Conversion of mezzanine loans into equity.
Real Estate Receiver: Power of Sale vs. Foreclosure Process
When it comes to handling defaulting real estate loans, there are various legal mechanisms available to lenders and borrowers to manage real property insolvency situations effectively without the need for a real estate receiver. In this section, I will compare the processes of power of sale and foreclosure, explore key scenarios where each approach may be beneficial, and discuss the legal considerations that both lenders and borrowers need to take into account.
Comparison of Power of Sale and Foreclosure Processes
Both power of sale and foreclosure are methods that lenders can use to recover funds from defaulted borrowers. The key difference between the two lies in the execution and outcome of the process.
Power of Sale: This approach allows lenders to sell the property without involving court proceedings. It is authorized under Ontario’s Mortgages Act and is generally faster and less costly compared to foreclosure. Lenders have the right to sell the property to recoup the outstanding debt, with any surplus earnings returned to the borrower and any shortfall being the responsibility of both the borrower and any guarantors of the borrower’s mortgage financing.
Foreclosure: In a foreclosure action, lenders take ownership of the property in exchange for the debt owed. This process involves court proceedings, starting with a statement of claim issued by the creditor. Foreclosure can be challenged by the borrower, and in some cases, the court may convert it to a judicial sale, allowing other parties to benefit from any potential surplus proceeds.
Key Scenarios for Each Approach
The choice between the power of sale and foreclosure may depend on the specific circumstances of the defaulting loan and the goals of the lender or borrower.
Power of Sale: This method is often preferred when quick action is required to recover funds. It is suitable for situations where the market value of the property is likely to cover the debt, and lenders want a faster resolution.
Foreclosure: Foreclosure may be more appropriate when the debt exceeds the property value, or when disputes regarding the validity of a sale are likely. Turning foreclosures into judicial sales provides added oversight and protection for borrowers, allowing for a fair distribution of proceeds.
Legal Considerations for Lenders and Borrowers
Both lenders and borrowers need to navigate various legal requirements and considerations when dealing with the power of sale and foreclosure processes.
Lender Responsibilities: Lenders must adhere to statutory and contractual obligations, including providing notification to borrowers and ensuring fair market value in property sales. They have the right to pursue borrowers for any remaining debt after the property sale.
Debtor Rights: In cases of insolvency, borrowers have the right to contest the sale and request evidence of its legitimacy. They may insist that lenders provide proof that the sale price accurately reflects the property’s true market value, supported by appraisals and appropriate marketing efforts.
The decision between utilizing the power of sale and pursuing foreclosure should be based on the specific circumstances of the defaulted loan, the characteristics and interests of all involved parties, and the desired outcomes for both lenders and borrowers. A comprehensive understanding of the variances and consequences associated with each approach is essential for effectively navigating insolvency scenarios within the real estate sector.
real estate receiver
Real Estate Receiver: Workout – The Collaborative Solution
As a real estate receiver, I believe it’s crucial to understand the various mechanisms available to address mortgage defaults and insolvency in addition to a real estate receivership enforcement action in dealing with real estate assets. One such approach that has traction in the right circumstances in dealing with a real estate distressed asset is the concept of workouts as a collaborative solution to resolving defaults. Let’s delve into the key components of a workout plan and forbearance agreements.
Exploring the Concept of Workouts as a Collaborative Approach
When creditors and debtors face insolvency or defaults, engaging in a workout plan can offer a mutually beneficial solution. Unlike traditional enforcement measures like foreclosure or power of sale, workouts emphasize collaboration and finding a middle ground that works for both parties. This approach is based on trust, cooperation, and a shared goal of resolving financial difficulties.
Key Components of a Workout Plan and Forbearance Agreements
A workout plan typically involves amending the original loan agreement or creating a forbearance agreement to outline the terms and conditions for resolving the default. It requires a thorough assessment of the situation, a solid plan to address the financial issues, and a commitment to openness and transparency between the borrower and lender. By setting clear objectives and timelines, both parties can work towards a viable solution that avoids costly legal proceedings.
Real Estate Receiver: A Detailed Overview of a Real Estate Receivership
When comparing receivership with judicial sales and foreclosure processes, it becomes apparent that each approach has its unique advantages and challenges. Receivership, often court-appointed, involves a licensed insolvency trustee acting as the receiver overseeing the property’s recovery and sale to recoup funds owed. While more time-consuming and costly than the power of sale or foreclosure, court-appointed receivership offers a structured way to handle complex real estate insolvencies. Due to the complexity, a real estate receiver requires extensive powers from the court.
Challenges and benefits arise for both lenders and borrowers in the realm of receivership. Lenders may face the risk of insufficient property sale proceeds, prompting the pursuit of borrowers for remaining loan amounts. On the flip side, borrowers have the legal right to challenge the validity of a power sale and must ensure the property’s sale price reflects its market value to protect their interests.
Receivership serves as a court-supervised controlled process that aims to maximize gross sales proceeds and prioritize creditors’ claims transparently and efficiently. By applying to the court to appoint a receiver to handle property recovery and distribution, the complexities of insolvency can be managed effectively, safeguarding the interests of all stakeholders involved.
What is a receivership and how does it function in Canada’s legal framework?
Within the legal landscape of Canada encompassing matters of commercial contention, there is the intricate notion of receivership. This process entails the designation of one of the two types of receivers; either a privately-appointed receiver or a court-appointed receiver. A receiver is vested with the authority to assume dominion over a business’s array of assets and properties. This authority arises from situations of monetary default on their secured loans.
It is prudent to retain awareness that the role of a receiver can only be filled by a licensed trustee for assuming the mantle of a receiver within the confines of Canada’s legal expanse.
The fulcrum upon which the inception of the receivership mechanism pivots is usually the inability of secured creditors to recoup their financial outlay from a debtor, who in turn is incapacitated in discharging its pecuniary obligations.
The receiver becomes vested with the possession and control of the assets, affects their liquidation, and subsequently allocates the ensuing sale proceeds among the cadre of creditors within the hierarchy delineated by the legal ladder of priority of claims. A court-appointed real estate receiver may also need to retain other real estate experts such as property managers, appraisers and real estate agents.
As an instrumental constituent of the commercial legal architecture in Canada, the receivership process endeavours to safeguard the vested interests of both creditors and debtors. It offers creditors the avenue to recoup either the entirety or a portion of their outstanding amounts due.
Concurrently, beleaguered commercial entities are afforded the prospect of either orchestrating a financial reconfiguration that extricates them from the quagmire of their fiscal problems or facilitating the divestiture of assets with the aspiration of facilitating the uninterrupted continuity of the business, but under new ownership. It, therefore, emerges as an indispensable instrument within the gamut of the Canadian legal paradigm, upholding the equilibrium of economic constancy.
Who is an approved buyer in the context of a receivership sale?
In the detailed context of a receivership sale, an approved buyer describes an individual or entity that has effectively met the specific requirements stated by the designated receiver. These standards encompass a variety of variables, including financial disclosure, a shown understanding of the sale’s terms and conditions, and the tried and tested capacity to finalize the purchase quickly. Usually, the recognition of an approved buyer takes place within a defined bidding procedure, in which potential purchasers compete to meet these developed requirements.
Once identified, an approved buyer ends up being subject to the terms and terms laid out within the sale arrangement. It is the receiver’s responsibility to ensure that the sale is carried out with a commitment to fairness and transparency. This consists of the duty to pick an approved buyer who not only can efficiently wrap up the real estate transaction but also can enhance the overall value of the assets that are being sold.
The fiduciary responsibility of the receiver is paramount throughout this process. The receiver is obliged to act in the very best interests of all parties, which encompasses lenders and other stakeholders. For that reason, the receiver’s duty surpasses the simple identification of an approved buyer; it includes securing the integrity of the sale, guaranteeing fairness for all parties, and ultimately maximizing the value that can stem from the assets being sold within the context of the receivership.
The role of secured creditors and their rights in receiverships
In the world of Canadian receiverships, secured creditors play an essential function in identifying the destiny of troubled companies. Recognizing their rights is essential in going through this complex landscape. Secured creditors have the legal authority to take enforcement proceedings against the assets covered by their security and have a higher priority in payment contrasted to unsecured creditors. They can either privately appoint or apply to the court for the appointment of a receiver.
The court-appointed receiver acts as a neutral party in charge of taking care of and selling the assets. The secured lenders have the right to challenge court-approved buyers if they think the receivership sale process is unfair or if they have a better deal. Nonetheless, safeguarding their legal rights within receiverships calls for a detailed understanding of the legal complexities and efficient timing associated with receiverships.
A secured creditor plays a crucial duty in the sale process. As the main financial stakeholder given their claim against the secured assets, the secured creditor has a vested interest in the result of the sale procedure. The court-appointed sale procedure includes the marketing and sale of the debtor’s assets and properties, which inevitably establishes the amount of funds that will be available to pay against the secured debt.
For that reason, the secured lender has a significant interest in guaranteeing that the sale procedure is conducted in a way that optimizes the recuperation of funds. The secured creditor’s beneficial interest in the sale procedure is shown in their capability to approve or reject the sale of assets in a private appointment and carries a level of weight with the court for a court-approved sale. This power allows them to protect their economic interests and ensure the very best feasible result from the sale process.
The timelines and stages of a receivership sale: The role of the approved buyer in Canadian receiverships
In Canadian receiverships, the role of the approved buyer is essential to the successful outcome of a receivership. In a court-appointed receivership, approved buyers are court-approved purchasers who typically offer the highest and most beneficial bid for the debtor company’s assets. They play a crucial role in maximizing the value of the distressed company and ensuring the best outcome for all parties involved. Their timely participation in the receivership process is instrumental in achieving sale finality and ultimately shaping the fate of the distressed entity.
In the world of Canadian receiverships, the involvement of court-approved buyers functions as a cornerstone in supporting an equitable and clear process. This essential process makes certain that every interested party can take part in the bidding process for the assets being sold. The result of this bidding process finishes with the choice of the best overall bidder. This mechanism of operation is rooted in concepts of justness, striving to eliminate any type of unnecessary benefit that a solitary party might have over others.
When a company is placed into receivership, the assigned receiver assumes command over the assets as well as operational elements of the business. The purpose behind the orchestration of a receivership sale revolves around the liquidation of the firm’s holdings to get them out of the insolvent troubled company and into the hands of a buyer who can maximize their value. The timing and stages integral within receiverships have a level of fluidity depending upon the intricacy and complexity of the business’s operations and assets.
Generally, the receiver’s starting point is the meticulous groundwork and strategy in setting up the sale procedure. Typically, the initial stage involves the preparation and marketing of the sale of the assets. This is followed by the negotiation and acceptance of offers from interested parties. In court-appointed receiverships, once an offer is accepted, the sale is subject to court approval and then the transfer of ownership is completed.
As this complex process unravels, the receiver must follow rigid lawful as well as regulatory requirements, thereby promoting an environment of impartiality and transparency that emphasizes a fair sale process. In its totality, the underlying purpose of a receivership sale opens up as the optimization of the company’s asset values, a pursuit carried out in the service of all stakeholders’ well-being.
real estate receiver
Real Estate Receiver: What the Court Requires To Approve A Real Estate Receivership Sale
Being involved as a bidder in real estate receivership sales can be both exciting and daunting, laden with unique challenges and opportunities. Let’s delve into the intricacies of what the Court requires for the legal process to approve a particular sales process and sale of assets when the company is in receivership.
The Soundair principles
The Soundair principles are a collection of lawful standards developed by the Court of Appeal for Ontario in 1991 in the case of Royal Bank of Canada v. Soundair Corp., 1991 CanLII 2727 (ON CA). All Canadian courts follow these principles.
The Soundair principles are aimed at creating fairness and transparency in the sale of assets throughout real estate receivership cases. Thirty-one years later, it is still the leading case in Canadian insolvency asset sales rules and regulations. These concepts guide courts in evaluating whether the sale procedure carried out by a receiver has been fair and suitable.
Here are the Soundair principles in detail:
Diligent Efforts to Secure the Best Price: The receiver/trustee is obliged to exert sensible efforts to secure the highest possible price for the assets for the general benefit of creditors. This entails thoroughly advertising the assets for sale, soliciting competing bids, and ensuring that prospective purchasers have sufficient information to submit proper offers to purchase. The goal is to get the highest sales price possible under the circumstances, to maximize the return for the benefit of creditors.
Fairness and Integrity in the Sale Process: It is essential to give all interested parties an equivalent opportunity to join the sales process and to avoid any potential purchaser from obtaining an unreasonable edge. Transparency and impartiality are vital, and conflicts of interest cannot be tolerated.
All Stakeholders’ Interests: The receiver/trustee must look out for the interests of all parties, secured creditors and unsecured creditors, shareholders, and any other appropriate stakeholders. It is very important for the licensed insolvency trustee to avoid preference for any party and to strive for a fair equilibrium of the interests among everybody affected because the company is insolvent.
Input from significant creditors: This is a crucial consideration for the licensed insolvency trustee. While the trustee retains the ultimate decision-making authority, it is essential to carefully weigh and consider the recommendations and preferences of major creditors. Given that these creditors will bear financial implications based on the sale outcomes, their input carries substantial significance in the decision-making process.
Application of the Soundair principles
In practice, when a sale of assets is held because the company is in receivership, there are two stages of court review. First, the licensed insolvency trustee needs to get approval for the actual sales process itself. Then, the Court will review the process as implemented by the licensed insolvency trustee.
The Court’s reviews are to ensure conformity with these Soundair principles. This is the case if this is not a sale at arm’s length purchaser. The court will take into consideration the following elements:
Marketing Efforts: How the assets were advertised and marketed, including the period and reach of the advertising and marketing initiatives.
Number and Quality of Offers: The variety of offers obtained and whether they reflect reasonable market price. To assist the Court in determining the reasonableness of the offers received, the Trustee must provide evidence to the Court. An independent appraisal of the assets and other market data is the normal kind of evidence usedwhat a fair valuation of the assets is.
Transparency: Whether the sale process was conducted fairly and transparently, with appropriate details provided to all possible purchasers.
Stakeholder Consultation: Whether the licensed insolvency trustee has spoken with and taken into consideration the views of significant creditors and other stakeholders.
Authorization of Sale: Whether the proposed sale is supported by the significant creditors or as a minimum, is not being opposed.
The Soundair principles assist when a company is in receivership, in guaranteeing that the sale of assets in an insolvency context is carried out in a fashion that maximizes value, keeps fairness, and appreciates the interests of all the major stakeholders. By adhering to these concepts, the court aims to supply confidence in the integrity and fairness of the process and protect the rights of all stakeholders.
Real Estate Receiver FAQs on Real Estate Receivership and Insolvency
What is a Real Estate Receiver? Answer: A real estate receiver is a court-appointed licensed insolvency trustee individual or firm responsible for managing, operating, and sometimes selling a property that is in financial distress. The receiver acts as a neutral third party to preserve the value of the property for the benefit of creditors and stakeholders.
What is Real Estate Insolvency? Answer: Real estate insolvency occurs when a property or the owner of a property is unable to meet financial obligations. This often leads to legal proceedings where creditors seek to recover owed amounts, potentially resulting in foreclosure or receivership.
When is a Receiver Appointed in Real Estate Cases? Answer: A receiver is typically appointed when a property is in financial distress, and there is a risk of losing significant value. This can occur during foreclosure proceedings, bankruptcy cases, or other situations where the property’s income and management are compromised.
What Are the Duties of a Real Estate Receiver? Answer: The responsibilities of a real estate receiver encompass overseeing the daily activities of the property, collecting rental payments, maintaining the property, facilitating required repairs, and occasionally coordinating the property’s readiness for potential sale. The primary objective of the receiver is to optimize the property’s value and uphold equitable treatment of all stakeholders.
How Does the Receivership Process Work? Answer: The receivership process commences upon the issuance of a court order appointing a receiver. The receiver assumes control of the property, evaluates its condition, and executes a management strategy. Regular reports are submitted to the court, and the receiver adheres to the court’s instructions until the property is stabilized, sold, or resolved in another manner.
What Are the Benefits of Appointing a Receiver? Answer: Appointing a receiver offers numerous advantages, including the stabilization of distressed properties, prevention of waste and loss, and provision of a neutral party to impartially manage the property. This can prove highly beneficial to creditors, owners, and tenants alike, safeguarding the property’s value and potentially optimizing its worth.
Can Property Owners Regain Control of Their Property After Receivership? Answer: Yes, property owners can regain control of their property if they resolve the financial issues and the court approves the termination of the receivership. This often requires paying off debts, restructuring finances, or meeting other conditions set by the court.
What Happens to Tenants During Receivership? Answer: Tenants generally continue their leases under the receivership. The receiver collects rents and manages the property as usual, ensuring that the property remains operational. Tenants may experience improved management and maintenance under a receiver’s oversight.
How Are Receivers Compensated? Answer: Receivers are compensated from the income generated by the property or from the proceeds of a property sale. Their fees and expenses must be approved by the court and are given priority over both secured and unsecured creditor claims by the court.
What Is the Difference Between Receivership and Foreclosure? Answer: Receivership and foreclosure are distinct legal processes in real estate management. Foreclosure refers to a legal action taken by a lender to recover the outstanding loan balance from a borrower who has defaulted on payments, often leading to the sale of the property. On the other hand, receivership entails the appointment of an impartial third party to oversee and stabilize the property, to potentially prevent foreclosure, maintain the property’s value and ultimately sell it.
Can a Receiver Sell the Property? Answer: Yes, a receiver can sell the property if authorized by the court. The sale process is usually supervised by the court to ensure it is conducted fairly and that the proceeds are distributed according to the court’s directives.
What Challenges Might a Receiver Face? Answer: Challenges include dealing with neglected maintenance, unpaid taxes, existing liens, tenant disputes, and market conditions. The receiver must navigate these issues while adhering to legal requirements and court orders.
How Long Does a Receivership Last? Answer: The duration of a receivership is contingent upon the intricacy of the case, the state of the property, and the objectives of the receivership. The timeline can range from several months to multiple years.
Who Can Request the Appointment of a Receiver? Answer: Interested parties such as creditors, lienholders, property owners, or other relevant entities have the option to seek the appointment of a receiver. The court will evaluate such requests by taking into account the specific circumstances and the necessity of safeguarding the property’s value.
These FAQs provide a comprehensive overview of key concepts related to real estate receivership and insolvency.
Real Estate Receiver Conclusion
I hope you have enjoyed this real estate receiver Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt.
You are worried because you are facing significant financial challenges. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.
The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. The way we take the load off of your shoulders and devise a plan, we know that we can help you.
We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.
That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious about finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.
Call us now for a free consultation. We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.
The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.
Imagine a prestigious Canadian law firm, typically the epitome of stability and justice, suddenly hit by a financial storm. The once robust balance sheets now shake, and partners are left to navigate a legal and financial labyrinth they never expected. This Brandon’s Blog takes you on a journey through the intersection of law and finance, revealing the truth behind what happens when even the legal giants fall on hard times.
Financial turbulence is a universal challenge affecting any business, including law firms. In the context of Canadian law firms, the concept of receivers and receiverships is unique, and the Court of King’s Bench of Alberta grappled with this issue in a recent case. Join us as we explore the legal strategies, regulations, and complexities of a financially challenged Canadian law firm placed in receivership.
Definition of receivers and receiverships
What Is Receivership?
Receivers and receiverships are a legal process that includes the retention of a 3rd party, referred to as a receiver, to take control of a company’s assets, finances and operations in an effort to resolve the underlying economic problems. Receivership is a lawful remedy used when a company, sole proprietorship, partnership or person, even including a law office, encounters impossible monetary issues. Receivers and receiverships can be used either to restructure a business by separating the good assets from the horrific financial problems or for a straight liquidation.
Receivership is a legal system where a secured creditor either independently designates or petitions the court to appoint a 3rd party, described as a receiver, to manage the properties and affairs of a business or person. Receivers and receiverships become a multifaceted process imbued with complexity. This option regularly serves as an avenue for the reconfiguration of a faltering business or the resolution of financial disagreements among diverse parties.
Navigating receivership involves a formidable blend of legal acumen and also the capability to make wise financial judgments. It is incumbent upon companies and people alike to realize the far-reaching ramifications of receivers and receiverships as well as the prospective scenarios that might ensue from its invocation. Among these considerations lies the essential issue of its repercussions on stakeholders, including employees, unsecured creditors, as well as lenders.
Within Canadian territory, the mantle of a receiver can solely be born by an appropriately qualified licensed insolvency trustee to manage this intricate legal process.
When Is Receivership Considered?
Receivership ends up being a factor to consider when a business experiences severe financial distress, such as mounting financial debts, operational inadequacies, or the inability to satisfy financial commitments. It works as a last resource to salvage what continues to be of the firm’s assets.
receivers and receiverships
Receivers and receiverships laws in Canadian provinces: Overview of the legal framework for receivership in Canada
Canada’s legal landscape is complicated, with federal and provincial laws and guidelines controlling the process of receivership. Let us explore this further.
Federal Laws
In Canada, the procedure of receivership is regulated mostly by federal government regulation, the Bankruptcy and Insolvency Act. The receiver must act lawfully. In a court appointment, the receiver must act in the very best interests of all parties involved. In this type of appointment, receivers as well as receiverships go through oversight by the court. The procedure of receivership can be complicated as well as calls for well-informed legal and financial recommendations to guarantee an effective outcome.
Provincial Regulations
Provinces in Canada also have their own laws which intersect with receivers and receiverships. Examples of provincial regulations that could affect receivers and receiverships are:
the actual statute under which a court supervises receivers and receiverships;
food and beverage service;
landlord and tenant.issues;
real property laws;
employment laws; and
environmental regulations.
Receivers and receiverships: Signs of financial troubles in Canadian law firms
Early signs of law firm financial distress may manifest discreetly initially; however, they possess the potential to swiftly burgeon into more significant predicaments if they remain unaddressed. These initial cues often comprise a diminution in earnings or profits, the gradual accumulation of aged or unrecoverable accounts receivable, protracted deferrals in settling obligations with suppliers, elevated turnover ratios among the workforce, and a conspicuous dearth of financial commitment to technological advancements or educational initiatives.
Furthermore, additional red flags might encompass extravagant expenditures on non-essential items, an absence of transparency in financial disclosures, and an excessive reliance upon a select few pivotal clientele for the lion’s share of the generated income. It is of paramount importance for legal practitioners to diligently oversee their fiscal well-being and to adopt assertive measures for rectification as soon as such issues come to the fore. These remedial actions may encompass the implementation of cost-saving measures, the pursuit of novel revenue streams, and judicious investments in pivotal facets of their enterprise to maintain a competitive edge within the industry.
receivers and receiverships
Receivers and receiverships: Initiating receivership proceedings
Secured creditors and their loans
In the intricate tapestry of the Canadian receivership process, secured creditors assume a pivotal role, being the foremost lenders vested with a security interest in the debtor company assets. This security interest, the secured loan being a legal tether of paramount significance, empowers them to wield their influence with precision, invoking either the private appointment of a receiver or the judicial machinery to issue an order for a court-appointed receiver.
In the realm of receivers and receiverships, this designated receiver takes upon themselves the onerous task of seizing the reins and stewarding the debtor company’s possessions.
Empowered by their position, secured creditors hold sway over the inception of the receivership process, their voices resonating in the selection of the receiver, a decision of paramount consequence. This influence is not merely titular; it is wielded to safeguard their interests and optimize the potential for recovery.
Types of receivers and receiverships: Role of receivers in legal proceedings
There are two types of receivers and receiverships:
Privately-appointed receiver
In privately appointed receiverships, the receiver bears the weighty mantle of responsibility, owing a fiduciary duty to the secured lender, a commitment to act in their utmost interest. Secured creditors, in turn, possess the authority to interpose their veto, casting judgment upon select decisions proposed by the receiver.
Court-appointed receiverships
However, when the path leads to court-appointed receivership, a different dynamic emerges, for here, the receiver is an independent arbiter, an officer of the court, rendering decisions with impartiality. No doubt secured creditors will attempt to wield their influence, but the court-appointed receiver must be seen to be even-handed.
In the grand scheme of the Canadian receivership process, secured creditors emerge as the linchpin upon which rests the beginning of efficient oversight and resolution of a debtor’s financial quagmire.
receivers and receiverships
Receivers and receiverships case study: A recent instance of a Canadian law firm receivership process
The recent decision of the Court of King’s Bench of Alberta is in the case of Law Society of Alberta v Higgerty, 2023 ABKB 499. This case involves an application to put a law firm into receivership. Notwithstanding that it is not one of the larger firms, it is, in my view, having been involved in both the receiverships and bankruptcies of law firms, a complete analysis of all the important considerations that insolvency practitioners and non-insolvency lawyers must be aware of in either advising or dealing with an insolvent law firm.
Law firm receivers and receiverships: Background
The Law Society of Alberta (“LSA”) and Mr. Richard E. Harrison are the applicants on this matter (collectively, the “Applicants”). The Applicants seek an order appointing a receiver or a receiver and manager over certain undertakings, personal property, real property and assets of the law practices of Patrick B. Higgerty and Patrick B. Higgerty Professional Corporation (collectively, “Higgerty Law”).
The receivership order sought by the Applicants is unique because of the circumstances underlying this application (the “Application”). The tension in this Application concerns: (i) the desire of a secured lender to enforce its rights and entitlements under the security it holds over the assets held by Higgerty Law; and (ii) the desire of the LSA to ensure the parties are acting in the public interest and to protect solicitor-client privilege that is a component of the files of Higgerty Law.
Easy Legal Finance Inc (“ELFCo”) is a secured lender to Higgerty Law. It seeks the right to enforce its security which is part of the loan agreement. It proposes a process that it alleges will ensure confidentiality and solicitor-client privilege are maintained for stakeholders, and not strip ELFCo of substantially all of its contractual, legal and beneficial rights.
Law firm receivers and receiverships: Facts
During its years of operation, Higgerty Law focused on personal injury law and class action litigation. Compensation for those files was often based on contingency fee agreements, payable when the matter concluded. On March 10, 2023, Higgerty Law was placed under custodianship pursuant to an Order of this Court (the “Custodianship Order”). Mr. Harrison was named the custodian (the “Custodian”).
On the date the Custodianship Order was issued, Higgerty Law had a substantial number of creditors. ELFCo asserted it held security over all present and after-acquired personal property of Higgerty Law. ELFCo claims that its security gives it priority over the proceeds of the class action lawsuits.
Higgerty Law has a debt of around $1.4 million to ELFCo. The interest rate charged on the ELFCo Loan is a whopping 18% per year! Last April, ELFCo served a demand for payment and a notice to enforce security under section 244(1) of the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) (“BIA”).
The President of ELFCo swore in an affidavit that he believed there was no reasonable prospect of Higgerty Law repaying the ELFCo Loan.
Law firm receivers and receiverships: What the Court needed to address
Initially, several issues were to be addressed in the Application, including: (i) whether a receiver and manager should be appointed; (ii) whether the interest payable on the ELFCo Loan should be stayed; and (iii) the scope of the ELFCo Loan security. The parties agreed to restrict the hearing to the issue of whether a receiver and manager should be appointed. The other issues were deferred to a subsequent hearing.
ELFCo challenges the proposal to appoint a receiver and manager. It asserts there is no business of Higgerty Law to manage and no material estate to administer. ELFCo also asserted that a receiver and manager in these circumstances would be limited to the negotiation of the transfer of a limited number of legal files to new lawyers. It submits that this is not an appropriate mandate for a receiver and manager and that it would not be commercially reasonable in view of the needless cost and redundancy a receivership would create.
As an alternative, ELFCo made an application for approval of a basic process to enforce its security. It asserts that this alternative process would ensure that confidentiality and solicitor-client privilege are maintained for stakeholders. Further, ELFCo asserted that this alternative process would not strip it of substantially all its rights and entitlements under its security, which would occur under the Custodian’s proposal. The one thing that the ELFCo proposal failed to recognize is that under section 244(4) of the BIA, only a licensed insolvency trustee can act as a receiver.
The unique circumstances of this case presented a challenge for the Court because there are various stakeholders with different rights that must be balanced, including:
the rights of the Higgerty Law clients to have their solicitor-client privileged communications protected;
the entitlement of a secured creditor to enforce its legal and beneficial rights;
the rights of Higgerty Law clients whose funds appear to have been misappropriated;
the rights of Higgerty Law clients to access their file material; and
the rights of unsecured creditors, including clients of Higgerty Law.
A wide array of factors should be taken into consideration when considering receivers and receiverships
The Court considered a list of important factors in considering a receivership appointment:
whether irreparable harm might be caused if no order were made, although it is not essential for a creditor to establish irreparable harm if a receiver is not appointed, particularly where the appointment of a receiver is authorized by the security documentation;
the risk to the security holder, taking into consideration the size of the debtor’s equity in the assets and the need for protection or safeguarding of the assets while litigation takes place;
the nature of the property;
the apprehended or actual waste of the debtor’s assets;
the preservation and protection of the property pending judicial resolution;
the balance of convenience to the parties;
the fact that the creditor has the right to appoint a receiver under the documentation provided for the loan;
the enforcement of rights under a security instrument where the security-holder encounters or expects to encounter difficulty with the debtor and others;
the principle that the appointment of a receiver is extraordinary relief, which should be granted cautiously and sparingly;
the consideration of whether a court appointment is necessary to enable the receiver to carry out its duties more efficiently;
the effect of the order upon the parties;
the conduct of the parties;
the length of time that a receiver may be in place;
the cost to the parties;
the likelihood of maximizing return to the parties;
the goal of facilitating the duties of the receiver.
Ultimately, the Court has to decide if, under provincial law, on the balance of the evidence, is it just and convenient to appoint a receiver.
Receivers and receiverships: The evidence and the Court’s analysis
The evidence, in this case, is that:
there are trust account improprieties in the range of $419,000; and
there is no reasonable prospect of the Applicants or Higgerty Law repaying the ELFCo Loan or continuing to make loan payments.
By virtue of being members of the LSA, custodians can maintain solicitor-client privilege over files and information within their custody. Both the LSA and the Custodian are stakeholders in ensuring the maintenance of solicitor-client privileged information.
There is an important distinction between secured creditors, who are interested in protecting themselves and usually do so through a receiver that they appoint, and a custodian who is typically interested in protecting the clients of the financially troubled law firm and their respective rights and entitlements, including their respective rights to solicitor-client privilege.
From the perspective of the secured creditors, the results which flow from the appointment of a custodian are no happier. A custodian is obliged by the to protect the interests of clients of the firm, including confidentiality, and is consequently unable to collect accounts receivable either efficiently or economically. The task of the custodian is significantly dissimilar from that of the receiver in that the primary objective of the custodian is the protection of clients’ interests. Receivers, by contrast, act in accordance with the interests of creditors. Any benefit enjoyed by creditors which results from the appointment of the custodian is merely incidental to the primary function of the custodian, which is the protection of the clients.
Solicitor-client privilege is a fundamental underpinning of the legal profession in Canada. It is near absolute and merits protection.
Solicitor-client privilege cannot be breached by the interests and entitlement of a secured creditor. Any risks in that regard must be carefully considered. To illustrate this point, the Supreme Court of Canada has held that Anton Piller orders must ensure the protection of the solicitor-client communications of the party being searched. There is no right to disclosure of such communications in discovery because they are protected by privilege.
The Judge determined that the higher duty in the circumstances of this case is to protect the public interest, which includes the protection of privilege associated with the files of Higgerty Law. Given the inherent concerns associated with the issues touching on the “Property” as that term is defined in the Draft Receiver Order, it is inevitable that matters concerning the solicitor-client privilege over the Higgerty Law files will be engaged. As a regulator, the LSA has an obligation to ensure the parties are acting in the public interest and to protect privilege over the Higgerty Law files.
The Judge’s view was that protecting solicitor-client privilege is an essential element of this custodianship. The unique circumstances of this case presented a challenge for the Court because there are various stakeholders with different rights that must be balanced, including:
the rights of the Higgerty Law clients to have their solicitor-client privileged communications protected;
the entitlement of a secured creditor to enforce its legal and beneficial rights;
the rights of Higgerty Law clients whose funds appear to have been misappropriated;
the rights of Higgerty Law clients to access their file material; and
the rights of unsecured creditors, including clients of Higgerty Law.
Receivers and receiverships: The Court’s decision
Based on the Judge’s review of the evidence and analysis of the law, the Judge found that it was just or convenient to appoint a receiver and manager of Higgerty Law. The unique circumstance, in this case, calls for a receiver and manager to be appointed in order to best ensure the protection of the solicitor-client privilege associated with the files of Higgerty Law.
The Judge also directed that the Draft Receiver Order obligate the receiver and manager to come back to the Court for an order whenever a Higgerty Law file is proposed to be transferred to a third party. The Draft Receiver Order must stipulate the notice that is to be given to the stakeholders whenever there is a proposed file transfer.
receivers and receiverships
Receivers and receiverships: Impact of receivership on law firm clients
Client confidences
Maintaining client confidence is a paramount concern during receivership. The receiver must uphold ethical standards and protect sensitive information.
Continuing legal obligations
Receivership does not absolve a law firm from its ongoing legal obligations, including representing existing clients and fulfilling contractual commitments.
Receivers and receiverships: Pros and cons of legal firm receivership
Advantages
Receivership can offer advantages such as a structured approach to resolving financial issues and protecting creditor interests.
Disadvantages
However, it also comes with disadvantages, including the potential loss of control for the firm’s owners and uncertainty for employees.
receivers and receiverships
Alternatives to receivership for law firms: Restructuring options available to a law firm
Restructuring
When confronted with financial difficulties, a Canadian law practice has a range of alternatives to think about prior to being put in receivership. Bankruptcy, restructuring either by merging with another firm or financial help in the form of additional partner capital contributions could be potential options that must be explored. Restructuring permits firms to rearrange their operations and debt structure to bring back financial security.
Bankruptcy
Receivership or bankruptcy, on the other hand, ought to be taken into consideration when the company’s financial situation is irreparable. It is necessary for an insolvent law practice to carefully evaluate and take into consideration these choices in order to determine the very best strategy to resolve their financial difficulties.
Receivers and receiverships: Frequently asked questions
1. What triggers the need for receivership in a law firm?
Receivership may be triggered in a law firm when the organization is no longer able to meet its financial obligations. This can be due to several factors, including a significant decrease in client demand, mismanagement of funds, or overwhelming debt. The need for receivership can also arise from legal action, such as a lawsuit against the firm.
When the organization is unable to pay its debts, receivership becomes necessary to protect the interests of clients, creditors and stakeholders. In such cases, a court-appointed receiver takes control of the firm’s assets and operations to manage the liquidation process and ensure the equitable distribution of funds from the sale of assets.
2. Can a law firm continue to operate during receivership?
Being in receivership can be a roller coaster ride for a law practice! The future of the firm lies in the hands of the receiver and their assessment of the scenario. If the receiver believes that the law office has the prospective to create revenue by continuing business operations, then the firm might be allowed to continue operating in some fashion in continuing legal services and moving the clients’ legal proceedings forward, while a realization strategy is being developed. But, if the receiver thinks that the firm cannot operate profitably and therefore it’s better for the firm’s assets should be sold, the receiver will seek court approval for that strategy.
3. How does receivership impact the firm’s clients?
The influence of receivership on a law firm’s clients can be significant. Clients may experience hold-ups in obtaining legal services, provided the sanctity of solicitor-client privilege. Furthermore, clients may be worried about the stability and dependability of the firm during the receivership process, which can impact their self-confidence in the firm’s capability to continue to supply essential legal solutions. It is important for both the receiver as well as the law firm in receivership to interact transparently with the clients during the receivership to maintain their confidence as well as minimize the impact of the process.
4. What alternatives exist to receivership for struggling law firms?
When confronted with financial difficulties, a Canadian law practice has a range of alternatives to think about prior to being put in receivership. Bankruptcy, restructuring either by merging with another firm or financial help in the form of additional partner capital contributions could be potential options that must be explored. Restructuring permits firms to rearrange their operations and debt structure to bring back financial security.
5. Are there differences in receivership laws across Canadian provinces?
As indicated above, receivership is governed first by the BIA, a federal statute. Although there may be differences in provincial law in the areas described above that have an effect on receivership proceedings, the base laws governing receivers and receiverships are the same across all provinces.
Receivers and Receiverships: Conclusion
In conclusion, receivers and receiverships are a complex but vital legal process that can be initiated when a Canadian law firm faces insurmountable financial challenges. It involves the appointment of a receiver to manage the firm’s assets and affairs, with the ultimate goal of protecting stakeholder interests. While receivership is a significant step, it is essential to understand its pros and cons and explore alternative solutions before proceeding.
Individuals and business owners must take proactive measures to address financial difficulties and promptly seek assistance when necessary. It is crucial to recognize that financial stress is a prevalent concern and seeking help is a demonstration of fortitude, rather than vulnerability. Should you encounter challenges in managing your finances and find yourself burdened by stress, do not delay in pursuing aid.
Revenue and cash flow shortages are critical issues facing people, entrepreneurs and their companies and businesses with debt problems that are in financial distress. Are you now worried about just how you or your business are going to survive? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns are obviously on your mind.
The Ira Smith Team understands these financial health concerns. More significantly, we know the requirements of the business owner or the individual who has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.
It is not your fault you can’t fix this problem on your own and it does not mean that you are a bad person. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Trustee & Receiver Inc. Team uses innovative and cutting-edge methodologies, to adeptly navigate you through the intricacies of your financial challenges, ensuring a resolution to your debt-related predicaments without resorting to the rigours of the bankruptcy process. We can get you debt relief now!
We have helped many entrepreneurs and their insolvent companies who thought that consulting with a Trustee and receiver meant their company would go bankrupt. On the contrary. We helped turn their companies around through financial restructuring.
We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.
The Ira Smith Trustee & Receiver Inc. team understands that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.
Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.
How long do receiverships last in Canada? Introduction
In my September 2021 Brandon’s Blog, THE CANADIAN RECEIVERSHIP EASY BEGINNERS GUIDE, I provided an easy-to-understand guide to understand the receivership process. To summarize, I described that in Canada, a receivership is a legal remedy available to secured creditors to recover outstanding amounts under a secured loan if a company defaults on its loan payments. It may also be used in shareholder disputes to complete a project, liquidate assets, or sell a business.
A court may appoint a receiver to take possession of assets, oversee liquidation proceedings, and distribute the proceeds according to the applicable legal priorities as outlined in Canada’s Bankruptcy and Insolvency Act (BIA). Or, a secured creditor may issue a letter of appointment to the same effect.
It is essential to recognize that receivership and bankruptcy are distinct legal proceedings. Bankruptcy is a formal proceeding, regulated by the BIA, to provide debtors with debt relief when they are financially incapable of paying their unsecured creditors. Conversely, a receivership is a process available to secured creditors to recuperate outstanding debt arising from a secured loan or to address shareholder disputes.
The purpose of this Brandon’s Blog is to answer the question I am often asked: “how long do receiverships last in Canada?”.
how long do receiverships last
How long do receiverships last in Canada? Understanding what receivership is
There are two types of receiverships in Canada: court-appointed receiverships and private receiverships. Court-appointed receivers are appointed by a court to oversee the management and disposition of a debtor’s assets. Private receivers are appointed by secured creditors as part of a loan agreement and the security agreement between the debtor company and the creditor.to manage and sell a business debtor’s assets outside of the court system.
The receiver, regardless if it is a court-appointed receiver or privately appointed receiver, takes control of a company’s assets and business operations to repay outstanding debts to creditors. The receiver’s primary duty is to maximize the value of the assets and distribute the proceeds to the creditors according to their priority ranking. The receiver has the power to sell, manage, or liquidate the assets and may also negotiate with creditors to restructure the company’s debt.
Some key players in a receivership process are:
Borrower: The owner of the property who defaults on their loan obligations or faces financial distress.
Lender: The secured lender, normally a financial institution, who initiates the receivership action to protect their interest in the property and recover their debt.
Receiver: The neutral third party who is a licensed insolvency trustee (formerly called bankruptcy trustees) and is appointed either privately or by the court to take charge of the property and manage it toward a sale or resolution.
Court: The judicial authority that grants or denies the receivership request, sets the terms and conditions for the receiver’s appointment and oversees the receivership process.
Law firm: The lawyers who are acting for the lender, the borrower and the court-appointed receiver.
The powers and duties of a receiver can vary depending on the nature of the assets or the court order appointing them. Generally, it includes taking control of the assets, managing them in a financially responsible manner, and reporting to the court and parties involved in the dispute.
The duration of receiverships in Canada can vary depending on the specific circumstances of the case, but it typically lasts for a few months to over a year.
how long do receiverships last
How long do receiverships last in Canada?
Several factors will affect the duration of receivership in Canada, including:
the complexity of the case;
the number and nature of the assets involved;
the cooperation of the parties involved; and
the efficiency of the court system.
Other factors may include the availability of qualified professionals to manage and sell the assets, the level of creditor involvement and negotiation, and the overall economic and market conditions at the time. Ultimately, the length of receivership will depend on the specific circumstances of each case.
Court supervision is the oversight provided by a court in a court-appointed receivership. The purpose of court supervision is to appoint the receiver, to allow for the receiver to obtain the approval of the court to decisions and actions the court-appointed receiver wishes to take, to ensure that the receiver acts in the best interest of all parties involved and follows the court’s orders and to allow a forum for any aggrieved party to bring their dispute to the court for adjudication.
Termination of a receivership occurs when the court is satisfied that the receiver has fulfilled their duties and objectives or when the receiver’s appointment is no longer necessary. The court terminates a receivership by court order after approving the receiver’s final report and accounts.
how long do receiverships last
How long do receiverships last in Canada? Frequently asked questions (FAQs)
Navigating receiverships can be a tricky and complex situation. Asking questions like “how long do receiverships last in Canada?” is essential to any company dealing with financial hardship. Here I will cover some of the common FAQs associated with receiverships in Canada, and provide an in-depth look at the timeline of these proceedings. It is essential to have a thorough comprehension of receiverships to successfully manage this situation.
What are the differences between bankruptcy vs. receivership?
Receivership is a process to secure the rights of secured creditors, allowing for the control and eventual sale of the assets of a distressed company. Bankruptcy, on the other hand, is a legal process which allows a company in financial difficulty to reorganize its affairs or liquidate its assets under the guidance of an insolvency trustee – providing a safety net to unsecured creditors.
What happens during a receivership process in Canada?
As part of the receivership process in Canada, a receiver is appointed to handle a company’s assets and activities, facilitating the sale of these to settle the company’s debt to creditors.
How does a receiver sell a business or assets?
To sell a business or assets, a receiver has many options available. A receiver can:
advertise the assets for sale by running a tender bid sales process;
a tender bid sales process could be stand-alone or could be combined with a stalking horse sales process;
the assets could be liquidated through a public auction using the services of an auctioneer;
the receiver could hand all the assets over to a liquidator in order to sell the assets in an online auction;
in certain circumstances, the receiver may wish to hire a professional business broker experienced in that particular industry or assets the receiver took possession of; or
for retail store assets, the receiver may sell the entire package of assets and will then run a retail sale to the public.
Regardless of the process chosen, the receiver’s aim is to market and sell the assets or business and obtain the best price for the assets or business under the circumstances.
How does a creditor apply for receivership in Canada?
Secured lenders can apply for receivership in Canada by filing an application to the court under a federal or provincial statute or enforcing their security rights by appointing a receiver privately through a security instrument by way of an appointment letter. A receivership is a remedy that allows a secured creditor to take control of and sell the debtor’s property and assets to collect their secured debt through a private or court appointment process.
Can a receivership be stopped or avoided?
Receivership can sometimes be stopped or avoided through negotiation with the secured creditor(s), restructuring or refinancing of debts, or by finding alternative sources of funding. However, whether or not it can be stopped or avoided depends on the specific circumstances of each case. The cessation of receivership will not be easy unless the secured creditor is being paid out.
how long do receiverships last
How does a creditor enforce a secured loan in Canada?
In Canada, a creditor can enforce a secured loan by appointing a receiver under a private contract or through the court process. Upon appointment, the receiver will seize and sell the secured assets or the assets set out in the court order to recover the amount owed.
However, before being able to appoint the Receiver, there have to be one or more events of default as described in the loan agreement. Then, the lender must be reasonable in allowing the company borrower to cure the default. If the company in default does not remedy the default(s) and the lender has lost confidence, the lender can then make a written demand on the company to repay the entire loan, plus interest and costs and also serve the necessary statutory form on the defaulting borrower.
The lender must give the borrower a reasonable period of time to repay the secured lender’s debt. Reasonable time will vary depending on the unique circumstances of the situation. In Canada, the minimum amount of time that has to be given is 10 days, unless the borrower acknowledges in writing that they can never repay the debt and is waiving the notice period.
What are the legal options available to recover outstanding loan payments?
Legal options available to recover outstanding loan payments may include sending demand letters, filing a lawsuit, obtaining a judgment and using collection methods such as wage garnishment or asset seizure.
How long does the bankruptcy process take in Canada?
The timeline of a corporate bankruptcy process depends on the uniqueness and complexity of each individual situation. There is no typical timeline, but, it could be a year or more from the start of the bankruptcy until the licensed insolvency trustee is discharged.
How do I liquidate assets in Canada?
When seeking to divest yourself of some assets you have a plethora of choices – in the case of an asset like real estate, you can list it on the public market. Alternatively, you can try to find the right buyer on your own. Or, if you’d like some professional assistance, enlist the help of a savvy broker or financial adviser.
What are the consequences of not paying off secured loans in Canada?
In Canada, if you don’t pay back a secured loan, the lender may reclaim the collateral you put up, personal property like a car or real property such as a house. Don’t let your possessions be taken away! Be sure to make all loan payments in a timely manner.
how long do receiverships last
How long do receiverships last in Canada? Conclusion
So I hope that you now have a good appreciation for receiverships in Canada including the answer to the question “how long do receiverships last in Canada?”. If your company or business is under financial pressure and your secured creditor is about to demand full repayment of all loans, you need immediate professional advice.
Revenue and cash flow shortages are critical issues facing entrepreneurs and their companies and businesses. Are you now worried about just how you or your business are going to survive? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns are obviously on your mind. Coming out of the pandemic, we are also now worried about the economic effects of inflation and a potential recession.
The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.
It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now.
We have helped many entrepreneurs and their insolvent companies who thought that consulting with a trustee and receiver meant their company would go bankrupt. On the contrary. We helped turn their companies around through financial restructuring.
We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.
The Ira Smith Trustee & Receiver Inc. team understands that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.
Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.
We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.
Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.
If you wish to listen to an audio version of this Brandon Blog, please scroll to the very bottom of the page and click play on the podcast.
What is Receivership?
Last week I wrote an easy beginner’s guide on bankruptcy. This Brandon Blog is for anybody interested in finding out what type of insolvency process receivership is and how it differs from some other insolvency processes. I will explain the receivership process, provide an overview of what happens in a receivership, explaining what is sought to achieve, and the consequences of receivership.
Receiverships occur when a secured lender enforces its security to recover loans that have been defaulted on by a borrower. Secured creditors appoint an insolvency trustee to serve as receiver or receiver-manager depending on the terms of their security documents when the corporate debtor defaults.
Receivers and secured lenders can enter into a private contract appointing a receiver. Alternatively, the secured lender may seek an order from the court appointing a receiver. I’ll talk more about that shortly.
If the corporate debtor defaults on a secured loan, the creditor may be entitled to appoint a receiver to collect their money. In Canada, “Section 244” notices are specific forms of notification that secured creditors must send to defaulting companies.
The notice specifies the assets covered by the security, the amount owed by the company in default, and that the secured creditor has the right to enforce the security after 10 days. The debtor company in default can consent to the appointment of the receiver before the expiration of the 10 day notice period.
A Section 244 notice is prescribed under the Bankruptcy and Insolvency Act (Canada) (BIA), and it is usually the last notice a creditor receives before the receiver takes possession of the debtor’s assets, properties, and undertakings.
Receivers then liquidate the assets of a business in order to pay secured creditors.
How Receivership Works
Parliament amended the BIA insolvency legislation in 1992 by enacting Part XI. BIA sections 243 through 252 to deal with secured creditors and receivers. Prior to that time, there was no federal statute insolvency legislation dealing with receivership matters. These provisions provide information about the court that hears bankruptcy and insolvency cases control over receivership matters that involve all or substantially all of the inventory, the accounts receivable, or the other property of a debtor. There are also restrictions imposed on the duties of secured creditors and receivers. It also stipulates that only a licensed insolvency trustee can act as a receiver. Part XI applies to both privately-appointed and court-appointed receivers.
These sections do not confer any powers available to a trustee of a bankrupt estate on secured creditors or receivers. Only those powers conferred upon the receiver in the appointment letter are granted to private receivers, and those are the powers specified in the security instrument. However, the receiver may also exercise certain statutory powers. If certain powers are required to administer the estate but are omitted under the security instrument, a receiver cannot act. Receivers are generally appointed by the secured creditor pursuant to security that at least states:
the collateral secured under the security; and
the receiver has the right to dispose of the collateral, including operating the insolvent debtor‘s business.
In a court-appointed receivership, the powers of the receiver come from the receivership appointment court order appointing the court-appointed receiver.
Receivership: Notice and Statement of the Receiver
From the 1992 amendments to the BIA, a receiver is required to provide notice to all known creditors of an insolvent debtor in receivership. Previously, creditors were not required to be notified.
When the receiver has become the receiver of an insolvent debtor‘s property, the receiver must provide notice of receivership as soon as reasonably possible but within 10 days of its appointment. Notice of the receivership must be sent to all creditors, the Office of the Superintendent of Bankruptcy and the insolvent debtor.
If the debtor is also bankrupt, rather than sending the notice to all creditors, the receiver sends the notice to the bankruptcy trustee. Since the creditors are already represented in corporate bankruptcy by the Trustee, the bankruptcy process will deal with them.
A receivership notice states, among other things, that the receiver has been appointed, whether it is a private appointment or a court appointment, and what the receiver’s plan of action is. Additionally, it contains a list of all known creditors.
As part of the receivership process, the receiver must provide interim reports every six months as well as a final report when the receivership is concluded. A copy of the receiver’s final receipts and disbursements statement must also be included in the final notice.
What’s The Difference Between a Court-Appointed Receiver and a Privately Appointed Receiver?
A court-appointed receiver vs. a privately appointed receiver is something people always want to know the answer to. I will explain the difference to you. It is pretty simple. Based on what I have already written, you have probably guessed it by now.
In a Court-appointed receivership, when the Court appoints a receiver, it does so through an Order on the application of the secured creditor. As between a secured creditor and a debtor, a privately appointed receiver is a receiver who is appointed by the secured creditor as provided in the Security Agreement. The Court-appointed receiver’s administration is supervised by the Court.
How is Receivership Different from Bankruptcy? Bankruptcy / receivership
Bankruptcy vs. receivership is also something people want to know. Many times, people confuse the two and use the terms receivership and bankruptcy, mistakenly, interchangeably. Often, receiverships and bankruptcy are confused, but the differences between the two are fairly straightforward. Whether it is a private appointment or a Court-appointed receivership, it is still different.
There are several main differences between bankruptcy and receivership. A receivership is a remedy available to secured creditors, as stated above. In order to enforce the secured creditor’s security rights against a defaulting debtor, a receiver is appointed.
Bankruptcy is a separate legal process. Trustees do not represent secured creditors in bankruptcy. Instead, they represent unsecured creditors. Corporate bankruptcy can occur simultaneously with a receivership of the same corporate debtor. The process of a corporate bankruptcy would be the subject of another Brandon Blog. To find other Brandon Blogs about corporate bankruptcy, use the search function at the top of this page.
What’s the Difference Between Receivership and Liquidation?
By now you know what the definition of receivership is. So I won’t repeat it because I do not want to sound like a broken record (younger people may not catch that reference!)!
Liquidation is not governed by the federal BIA. Rather, it is done under the provincial Business Corporations Act or Wind-Up Act. A liquidation is for a solvent company where the shareholders, Officers and Directors decide to cease business operations by running off any existing contracts and selling off the assets. The cash obtained is then used first to pay off the creditors. Any funds leftover is then distributed to the shareholders.
Just like a receiver, a liquidator can be appointed either privately by resolution of the Directors or by Court order. Liquidation is not a receivership or bankruptcy.
Employee Rights in Bankruptcy Protection and Bankruptcy⁄Receivership
A device was created by the BIA for employees of a company that went bankrupt or into receivership. It does not apply to employees of a company trying to rightsize itself through reorganization; either a BIA Proposal or a Plan of Arrangement under the CCAA. The Wage Earner Protection Program Act (WEPPA) protects wages or benefits, including termination and severance pay, accumulated in the 6 months prior to a business going bankrupt or going into receivership.
The WEPPA ended up being enacted due to the federal government’s concern that when a company went bankrupt and employees were not paid their wages, there was rarely an opportunity for them to recoup any of their income. There are limits or caps on what employees can receive.
In the period in which amounts are past due to you, you will not qualify for WEPPA if:
you are a Director or Officer of the business;
or you have worked as a manager for the company
you are part of the management responsible for negotiating or refusing to pay amounts owed.
You may qualify if:
the previous employer has gone bankrupt or into receivership.
The firm owes you wages, salaries, vacation pay, or unreimbursed costs throughout the six months prior to the date of bankruptcy or receivership.
When an employer enters bankruptcy or receivership, the WEPPA provides funds to employees owed money. Those employees who qualify are paid as soon as possible. An employee’s qualifying earnings are equal to seven times their maximum regular insurance earnings under the Employment Insurance Act. According to Service Canada, the maximum amount of $56,300 a year is the limit for insurable earnings as of January 1, 2021. Thus, in 2021 the maximum amount a former employee can claim under WEPPA is $7,578.83.
Trustees and receivers are required to inform employees about the WEPPA program and provide information about amounts due. In the event of bankruptcy or receivership, trustees, as well as receivers, have 45 days to submit to Service Canada the Trustee Information Forms showing the amounts owed to each employee.
In other words, WEPPA‘s payment for former employees is something, but it may not be enough to fully compensate each. As a result of the amount paid by Service Canada, which administers the employment insurance system, $2,000 per employee is a super-priority against the company’s current assets. All remaining amounts paid to each employee, up to the maximum, are unsecured claims.
Receivership summary
I hope you found this receivership Brandon Blog informative and that the differences between receivership, bankruptcy, restructuring and liquidation legal proceedings are now clearer. Because it all has to do with corporate insolvency, the provincial Bankruptcy Courts also deal with receivership matters to adjudicate under the applicable insolvency law.
With too high debt levels and not enough wealth, you are insolvent. You can choose from several insolvency processes to get the debt relief that you need and deserve. It may not be necessary for you to file for bankruptcy.
If you or your business are dealing with substantial debt challenges, you need debt help, and you assume bankruptcy is the only option, call me.
If you’re thinking about bankruptcy, you’re probably in a situation where you’re overwhelmed, frightened, and feel like you’re alone. That’s natural and it is not your fault.
It’s good that you’ve come to this site, where you’ll find answers to your questions, sort through your options, and discover that you can get help. You’re not alone, and the professionals at Ira Smith Trustee & Receiver Inc. are committed to helping you find a debt solution that’s best for you.
It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.
The Ira Smith Teamutilizes new modern-day ways to get you out of your debt difficulties with debt relief options as analternative to bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.
You are under a lot of pressure. Our team knows how you feel. You and your financial and emotional problems will be the focus of a new approach designed specifically for you. With our help, you will be able to blow away the dark cloud over your head. We will design a debt settlement strategy for you. We know that we can help you now.
We understand that people with credit cards maxed out and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do as we know the alternatives to bankruptcy. We help many people and companies stay clear of filing an assignment in bankruptcy.
Because of this, we can develop a new method for paying down your debt that will be built specifically for you. It will be as unique as the economic problems and discomfort you are experiencing. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free,contact the Ira Smith Trustee & Receiver Inc. group today.
We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.
Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.
