Tag Archives: Bankruptcy Chapters Explained

Chapter 11 Summary

A chapter 11 bankruptcy is an extremely potent tool in the hands of the debtor. The filing of the chapter 11 case invokes the automatic stay under 11 U.S.C. §362. This section completely stops all actions on the part of any creditor of the estate to attempt to collect on the debt or to even improve the creditor’s position or security of their debt.

After the filing of the chapter 11 case, the Debtor(s) remain in exclusive control of all of the properties and their other assets. The public policy behind the bankruptcy law strongly favors debtors and is designed to allow debtors to reorganize. Once a chapter 11 case is filed, there are six months during which no party, except the debtors, can effectively take any action whatsoever. During this period of time, the debtors will take a variety of actions to minimize their exposure to the parties in litigation and to maintain control of the properties to the extent they may be able to profit from doing so. To the extent parties hold secured debt, through the bankruptcy process, some of that debt may be determined to be unsecured, and “peeled off” of the property. Thus, in bankruptcy, debt of lenders/sellers that may be secured under California law may be deemed unsecured claims. Judgment creditors who have secured their claims may have the secured status stripped off. To the extent a claim is determined to be unsecured, the claim would only require payment in the amount that the claim would be paid in a chapter 7 case.

Similarly, to the extent debtors can demonstrate that any property is reasonably necessary for the effective reorganization , the debtor may be able to retain control over that property for as long as two years after the case is filed, without payment to a lender. To the extent the debtor will incorporate a property into the debtor’s reorganization, the debtor can “impair” the claim of a creditor whose debt is secured by the property. As one example, the debtor may be able to have the court greatly reduce the interest rate, as necessary for the reorganization of the debtor.

The bankruptcy prevents lenders from taking action against the debtor during this time. However, it does not prevent the debtor taking action against creditors.

The ultimate goal in a Chapter 11 is to emerge from bankruptcy without debts, judgments, security interests or ongoing contractual obligations (such as leases or employee agreements) that may have placed the debtor into bankruptcy in the first place. Aside from reducing the status of various claims as described above, the debtor must come up with and get approved a plan of reorganization.

Requirements of a Plan

In order to confirm a Chapter 11 plan, there are a number of requirements. Among them are:

  1. Similar claims must be treated similarly and putting one creditor in another class separate from other similarly situated creditors may be prohibited where the primary purpose is to get a confirmable plan (In re Barakat (9th Cir. 1996) 99 F.3d 1520, 1525). But, subordination of claims can occur (FRBP 7001) and makes the subordinated claim different from general unsecured claims. In re US Financial Inc. 648 F.2d 515, 523 (9th Cir. 1980).
  2. The plan must be in good faith and feasible, meaning among other things able to be carried out in a reasonable period of time, and must have “adequate means” for implementation (e.g., based in reality on projected sales prices, income, etc.) 11 USC § 1123(a)(5).
  3. Unsecured claims have to be paid within five years in an individual case. 11 USC § 1129(a)(15).
  4. Unsecured creditors must get at least as much in plan payments as they would in a Chapter 7 liquidation.
  5. Individual debtors must devote their monthly disposable income (as measured by a Chapter 13 means test) unless they are to be paid in full by other methods such as by sale of assets. 11 USC § 1129(a)(15).
  6. The plan can be formed other than just from disposable income, such as a liquidating plan in which payments are funded by the sale of assets.
  7. If a plan is to pay any class of creditors less than the full amount, the class is “impaired” and at least one “impaired class” must approve the plan.
  8. Administrative claimants must have their fees approved, and must be paid at the commencement of the plan unless lesser treatment is agreed to by the claimants. 11 USC § 1129(a)(9).
  9. The debtor must continue to file taxes, report to the OUST, and pay US Trustee fees for the life of the plan or until the case is converted or dismissed. 28 USC § 1930; 11 USC § 1106.

While these hurdles can appear daunting, the Chapter 11 debtor’s ability to have the court modify contracts, subordinate claims or strip liens, and other powers can assist in creating an environment where creditors become more willing to negotiate in a bankruptcy case than they would have been outside a bankruptcy.

Overview of the Bankruptcy Process

In today’s economic climate, basic knowledge of the Code is a valuable tool that every civil litigator and business lawyer should have in his or her toolbox.

Bankruptcy is for everyone’s benefit

In economist Adam Smith’s book Wealth of Nations, he uses the phrase “invisible hand” metaphorically to demonstrate how each person acting in his own interest combines to promote the good of the community. The same is true in bankruptcy proceedings.

For debtors, a discharge (11 USC §727) offers a fresh start to the honest but unfortunate, or simply a chance through the automatic stay to regroup and analyze how to handle financial problems. For creditors, the bankruptcy process offers disclosure of the debtor’s actual financial situation, and an orderly liquidation or payment plan without the time, cost and uncertainty of costly traditional litigation, and it further stops the race between creditors to be first to grab dwindling assets of the debtor. Still other creditors may not want current management in place and may seek the replacement of the debtor-in-possession with a trustee or examiner in a reorganization case.

The U.S. Trustee’s goal in bankruptcy is to ensure the debtor acts honestly and equitably toward the creditors. This may occur by reviewing the petition, past tax returns, or examining the debtor throughout the case to evaluate which, if any, type of bankruptcy is best for all concerned and if needs be, file a motion to convert a case to one under another chapter or have it dismissed entirely.

The bankruptcy case trustee (different from the US Trustee’s office) has the goal of getting as many assets into and disbursed through bankruptcy estate, as the trustee makes a commission based on this throughput.

Overview

The Bankruptcy Code is found in Title 11 of the United States Code. It is divided into nine chapters, all but one of which is odd-numbered. Generally, Chapters 1, 3 and 5 apply to all bankruptcies (§103). Chapter 1 deals with global issues such as definitions (§101), the powers of the bankruptcy courts (§105), and limits on who may be a debtor in bankruptcy (§109). Chapter 3 addresses case administration for all bankruptcies such as how cases are commenced (§301, 303), who are the officers of the case, including the US Trustee (§307), the case trustee (§321), employment and compensation of professionals (§§327-330), the effect of the automatic stay and when it may be lifted (§362), and how to deal with “executory contracts”, meaning those not fully performed save for payment of money (§365). Chapter 5 covers the claims process including allowance of claims, determination of secured status and the like (§§501-511), the debtor’s duties to list all assets and liabilities (§521), the definition of property of the estate (§541) and the trustee’s powers to compel turnover of estate property held by others or return of assets to the estate that had been disbursed to some creditors before the case was commenced (§§542-553).

Chapter 7 is known as a liquidation bankruptcy, and is the most common form of bankruptcy. 22,330 Chapter 7 cases were filed in the Northern District of California in 2011, but that number had fallen to 11,471 filings in 2015. In a Chapter 7 case, a debtor gives up all non-exempt property to pay creditors and in return, receives a discharge from most debts (§§541(property of the estate), 522 (exemptions for individuals), 523 (debts excepted from discharge) 727 (discharge)). Corporations do not have exemptions because they do not need to eat, clothe themselves or otherwise prepare for life after bankruptcy (§522, Cal. Civ. Proc. Code §703.020, §703.130 et seq.). Similarly, corporations do not receive a discharge under Chapter 7 because there is no need for the fresh start. The corporation is no longer engaged in business (§727). Where the debtor is an individual or are joint individuals, they may be precluded from being Chapter 7 debtors by the “means test”, a mechanism found in §707 and intended to prohibit high wage earners from obtaining a discharge when they can repay a substantial portion of their debt. If they fail the means test, the debtors must file under Chapter 13 or Chapter 11.

Chapter 13 is the next most common form of bankruptcy, accounting for nearly 34% of all bankruptcy filings in the Northern District of California during the second quarter of 2011. Only an individual or married person can be a debtor under Chapter 13, often dubbed the “wage earner plan” bankruptcy (§§109, 1301). In addition, to be a debtor under Chapter 13, the debtor must not have more than $1,081,400 in secured debt and $360,475 in unsecured debt. Generally, the debtor who qualifies for and must file a Chapter 13 case due to excessive income in the months leading up to bankruptcy must file and have approved by the Court a repayment plan that commits to paying all of the debtor’s “monthly disposable income” for a five year period, at the end of which, the debtor will receive a discharge. The estate property includes these post-petition earnings in addition to the normal definition of “estate property” under §541 (§1306). The easiest way to describe a Chapter 13 case is to compare it to a Chapter 11 reorganization case. Chapter 13 is a streamlined and simplified reorganization and partial repayment of debts.

With the possible exception of a bankruptcy by a municipality under Chapter 9, a Chapter 11 bankruptcy is easily the most complicated and nuanced of the bankruptcies. Typically dubbed a “reorganization” case, it can take on many forms and outcomes. Under a Chapter 11 case, the debtor remains in possession of the estate property and is called a “debtor in possession” or “DIP”. If it is an ongoing business, the debtor is authorized to continue operating the business (§1107-1108) unless ousted by the appointment of a trustee under §1104, usually for misconduct or mismanagement by the DIP. In addition to scheduling all of the assets, liabilities and ongoing executory contracts (such as leases, financing agreements, collective bargaining agreements and the like) (§521, Fed. R. Bankr. Proc 1007), a DIP must both (1) seek approval of the Court to undertake “out of the ordinary” expenses such as employing professionals like lawyers and accountants, and (2) regularly report to the Court by filing monthly operating and income and expense reports. Additionally, DIPs have a limited time to propose a plan of reorganization, create and get approved a “disclosure statement” and lobby creditors to accept the plan (§§1121-1126, §1129). Creditors’ committees are usually appointed under §§1102-1103 to represent unsecured creditors at large and these committees often seek representation, also at the expense of the estate. This continuous oversight adds to the ongoing cost of running any business and can overtax it to such an extent that many Chapter 11 cases are doomed in the first several months. The vast majority of Chapter 11 cases end up being converted to Chapter 7 liquidations when no feasible plan of reorganization can be created or approved before this additional burden becomes overwhelming. One may ask why, then, anyone would file a Chapter 11 case. The debtor’s goals in filing for bankruptcy include getting an automatic stay in order to have some breathing room to reassess how to handle the situation. For businesses in bankruptcy, this also permits the debtor a chance to renegotiate leases, alter borrowing relationships with lenders (sometimes to a lower interest rate or principal reduction), or sometimes reject onerous agreements with labor unions. This higher level of negotiating and maneuvering often escapes the normal unsecured creditor’s notice.

The effect of the automatic stay

One of the effects of bankruptcy is the “automatic stay” imposed by §362 of the Code. The automatic stay stops the vast majority of creditor actions against a debtor. It operates as an injunction to stop:

  • the commencement, continuation of lawsuits, and administrative proceedings;
  • efforts to enforce money judgments;
  • garnishments and attachments in pre-judgment collection litigation
  • any act to create, perfect or enforce most liens; and offset of debts owing to debtor.

It does not, however, stop:

  • criminal proceedings;
  • professional or drivers’ license revocation proceedings;
  • paternity, domestic support obligations;
  • marriage dissolution cases (except for division of property that is estate property);
  • domestic violence proceedings;
  • interception of tax refunds under the Social Security Act;
  • tax audits or notices of deficiency from the IRS;
  • eviction proceedings of non-residential real property where the lease has expired of its own terms;
  • continued withholding from earnings (Chapters 11, 13);
  • acts to enforce against property that was the subject of a successful relief motion within the previous 2 years in prior case;
  • continued eviction of residential property if judgment was entered before the bankruptcy petition was filed;
  • acts to perfect or continue perfection of lien that relates back (such mechanics’ liens).

What the bankruptcy estate is made of

The filing of a bankruptcy petition creates a bankruptcy estate. It generally is comprised of:

  • all assets of the debtor, and of spouse’s interest in community property;
  • all inheritances, bequests, devises, amounts received from divorce decrees or life insurance policies received within following 180 days;
  • in a Chapter 13, the debtor’s earnings through the life of repayment plan;
  • the proceeds, product, rents and profits of property of the estate
  • all transfers avoided by the trustee such as fraudulent conveyances or preferential transfers;
minus
  • exemptions allowed to be taken by individuals under applicable law once allowed.
  • (§§541, 522, Cal. Civ. Proc. Code §703.010 et seq.; Fed. R. Bankr. Proc. 4003).

What are California’s exemptions?

California has two sets of exemptions laws. One is permitted to be used by anyone and includes the statutory homestead exemption; the other is limited to bankruptcy debtors who elect to use the alternative “bankruptcy-like” exemptions (§522, Civ. Proc. Code §703.010 et seq.).

What debts cannot be discharged?

A discharge generally operates to discharge the debtor from all debts arising before the petition was filed, except:

  • most recent taxes due and unpaid;
  • taxes due for fraudulent returns or unfiled returns;
  • domestic support obligations;
  • fines, penalties and forfeitures;
  • student loans unless the court determines that requiring payment would impose and undue hardship;
  • death, personal injury injuries caused by DUI or under illegal controlled substances;
  • criminal restitution orders;
  • divorce obligations ordered by family court;
  • HOA fees or assessments due after the petition was filed;
  • amounts owed under repayment to pension or profit sharing plans under ERISA;
  • judgments for fraud or defalcation under securities laws;

If a creditor establishes the following in proceedings in the bankruptcy court:

  • debt for money, property or services obtained by false pretenses ( for example credit card debts incurred just before the bankruptcy petition is filed);
  • fraud while acting as a fiduciary; or
  • willful and malicious injury,

these debts may be found nondischargeable and may survive the bankruptcy process (§§523, 727, 1141, 1328).

Provisions to discourage multiple filings

Finally, there are provisions to discourage frequent resort to bankruptcy:

  • A Chapter 7 debtor may not receive a discharge if one was received in a previous Chapter 7 case filed within the past 8 years;
  • A Chapter 7 debtor may not receive a discharge if one was received in a previous Chapter 13 case filed within the past 6 years;
  • A Chapter 13 debtor cannot receive a discharge if one was received in a Chapter 7 case filed within the past 4 years;
  • A Chapter 13 debtor cannot receive a discharge if one was received in a previous Chapter 13 case filed within the past 2 years; and
  • No natural person may be a debtor whose prior case has been dismissed within the previous 180 days for willful failure to prosecute the prior case.

What Must a Chapter 13 Plan Do?

What Must a Chapter 13 Plan Do?

When a debtor cannot file for bankruptcy under Chapter 7, either because he cannot pass the means test, because of a too recent prior bankruptcy, or other reason, he usually will file for protection under Chapter 13 of the Bankruptcy code. Chapter 13 is somewhat like Chapter 7 in that the filing of the petition results in the imposition of an automatic stay and the property of the estate is used to pay creditors.  However, there are several significant differences between Chapter 7 and Chapter 13. First, the property of the bankruptcy estate includes not only the debtor’s assets but also all earnings of the debtor for the duration of the case or until it is converted to a case under a different chapter.  Second, the debtor must propose a plan, similar to a plan of reorganization under Chapter 11. 

This plan, which must be confirmed by the Court at a hearing, must contain several elements:

It must:
  • Pay all priority claims in full unless the claimant agrees to a different treatment.  Priority claims include such things as administrative expenses of the case, trustee fees, filing fees, domestic support obligations, recent tax obligations, and allowed claims for death or personal injury occasioned by the debtor’s operation of a motor vehicle while under the influence.  For a full list of “priority claims”, see 11 USC 507 (http://www.law.cornell.edu/uscode/11/507.html);
  • As to secured claims, provide either that the debtor surrender the collateral, or the secured claim is paid in full and the creditor retains the security interest until then or until discharge;
  •  Provide for payments on unsecured claims that equal or exceed what each creditor would receive if the bankruptcy had proceeded under Chapter 7; and
  •  Be proposed “in good faith”.

In addition, the debtor must demonstrate he can make all payments required under the plan, has paid all domestic support obligations since filing for bankruptcy, and has filed all tax returns that are due.

Finally, if the Chapter 13 trustee or an unsecured creditor objects to confirmation of the plan, the Court may only confirm the plan if the unsecured claim is paid in full, or the debtor devotes all disposable income during the life of the plan to paying unsecured creditors’ claims.  “Projected disposable income” is generally described as all of the debtor’s income less amounts reasonably necessary for the maintenance and support of the debtor and his dependents or household.  If the debtor’s household income exceeds the median in that state, the calculation of what is “reasonably necessary for the maintenance and support” is calculated by a special “means test” formula created in 2005 by Congress.

The length of the plan can be less than three years if it pays all unsecured claims before then, or is three years if the debtor’s household income is less than the median income for households of that size in the state where the debtor lives, or five years if the debtor’s income is greater than the median income in that state for a household that size.

These myriad requirements often result in a debtor’s first proposed plan being objected to or not confirmable.