McNider Marine Trustee Brings Lawsuit To Recover $600K Allegedly Paid Under Forbearance Agreement
June 15, 2021, Southern District of Alabama – Trustee Terrie S. Owens for the bankruptcy estate of McNider Marine, LLC & John Brice McNider (“Debtors”) accuses Cain & Daniels, Inc., Keersten Heskin Martinez, PA a/k/a The Heskin Martinez Law Group ( Heskin), White and Williams LLP ( White), Business GPS, LLC (GPS) and multiple other defendants to deliver, pay and turnover the amounts “previously paid and received pursuant to a judgment” in a lawsuit and under a “forbearance agreement”.
The Trustee claims that Cain and two of the other defendants entered into a “forbearance agreement” with the Debtors to forebear collection of the judgments against the defendants in a lawsuit in exchange for $15,000.00 monthly payments. The judgment was allegedly entered against the defendants in the lawsuit for $623,948.00. The complaint contends that from the $623,948.00 judgment, White, Heskin, and GPS allocated $595,930.00 to themselves and $28,018.00 to Wells Fargo, a purported creditor of the Debtors. Thus, the Trustee claims that “Debtors did not receive any payments” from the judgment in the lawsuit.
The Trustee initiates an adversary proceeding, alleging that he possesses the avoidance powers outlined in 11 USC §544 and that his “rights supersede” the rights of White, Haskin, and GPS to collect any of the funds payable under the forbearance agreement, including the payments that are made within the 90 days before the petition filing date, payments made by the defendants in the lawsuit and received by White, Heskin, and GPS after the filing date. The Trustee contends that the judgment, rights to payment under the judgment, and rights to payment under the forbearance agreement are property of the estate under 11 USC §541 of the Bankruptcy Code.
Accordingly, the Trustee requests the Court to direct the defendants to deliver, pay, and turnover the amounts previously paid and received pursuant to the judgment and under the forbearance agreement. The Trustee also urges the Court to declare the payments received under the forbearance agreement as avoidable preferences and direct the defendants to pay to the Trustee the amount of the preference payments received plus interest and the cost of the lawsuit.