Chapter 11 bankruptcy is a great way for your business to get the financial help it needs to recover from a major financial crisis. However, there are some drawbacks to filing for this type of bankruptcy. You must be sure that you have a clear understanding of the ins and outs of the process and the limitations it imposes on you. It is also important that you understand how to protect your rights during the process.
Chapter 11 is a bankruptcy procedure that allows businesses to discharge debts and gain a rehabilitative period. Many large, financially troubled companies, including General Motors, Delta Airlines, and K-Mart, have filed for protection under Chapter 11, which is referred to as a corporate reorganization.
When a business files for a Chapter 11, the company can continue to operate but has to pay back creditors according to a plan approved by the court. A plan of reorganization is designed to help the company restructure its assets and make payments. The court may allow the debtor to remain in possession of property but must use it only for legitimate business purposes. The company must also operate with an intent to satisfy creditors’ liens.
A bankruptcy judge can deny a discharge for any of these reasons: fraudulently incurred debts, false claims, or failure to obey a court order. In addition to these reasons, the bankruptcy judge may deny a discharge for failing to adequately explain the loss of property or assets.
A Chapter 11 debtor must submit a list of all of their assets and creditors. They must also describe their financial situation and disclose any special circumstances. The creditors’ committee may consult with the debtor to formulate a reorganization plan.
A plan of reorganization requires the approval of the majority of the creditors. A reorganization plan must also account for two-thirds of the debts owed. A debtor can keep his or her assets if the plan of reorganization is approved.
Once the plan of reorganization is approved, the court grants the creditor’s claim. The claim must be listed in the schedules of the debtor. After the claim is filed, the debtor must provide proof of the claim in order to receive payment.
If the plan of reorganization is successful, a discharge is granted. In most cases, a moratorium will apply for six to twelve months. During this time, the debtor can pay secured creditors for their business properties, but not unsecured creditors.
A discharge is part of the confirmation process in a Chapter 11 case. It is a formal order prohibiting collection activity. In addition, the discharge relieves the debtor from liability.
Limitations of small business debtors
The limitations of small business debtors in chapter 11 bankruptcy can vary considerably. In general, a subchapter V case requires a smaller debt limit than a non-Subchapter V case. The limits are also subject to some restrictions. For example, in a subchapter V case, the debtor must have a total of $7,500,000 or less. The amount of money owed by a subchapter V debtor must be derived from commercial or business activities. Those that owe affiliates, public companies, or farmers are not eligible to file under Subchapter V.
While these rules can be restrictive, they do not limit the options that are available to small business owners. As long as the business owner is able to keep ownership of the company, the debtor can reorganize his or her debts under a liquidating plan. In addition, a debtor may sell some assets to pay off creditors. In some cases, a creditor’s committee may be appointed to help administer a case.
A creditors’ committee can be a significant safeguard for the proper management of a business by a debtor in possession. The committee, which includes seven largest unsecured claims, consults with the debtor in possession and investigates the conduct of the business. It is not automatically appointed, but the court can order it to be so. It can hire professionals to assist in the administration of the case. The committee must be approved by the court and only after a showing of cause is made by the debtor in possession.
As with any bankruptcy, the cost of a chapter 11 bankruptcy is a considerable factor. Generally, a lawyer’s fee will run between $15,000 and $30,000. It is important to note that the fees for chapter 13 will be significantly lower. In some cases, the fees are as low as $2,000.
The CARES Act of 2005 created a more convenient path for small business debtors. It streamlined the processes of chapter 11 and provided additional eligibility requirements for certain groups of businesses. It also expanded the limits for subchapter V filings.
Converting a chapter 11 case to a chapter 7 case
Converting a chapter 11 case to a chapter 7 case is often a difficult process for bankruptcy debtors. They are afraid of losing all of their income and assets. They are also worried that creditors will find out how much they earn.
A bankruptcy court has the power to convert your case from chapter 11 to a chapter 7 case, but the decision is made on a case by case basis. The decision may be based on a number of different factors. The court must consider the benefits and disadvantages of conversion and the debtor’s ability to pay off his debts.
Conversion is not a new concept. One of the first cases that was heard in the US was Marrama v. Citizens Bank of Massachusetts. This case held that the U.S. Supreme Court possessed a broad statutory authority to limit the abuse of conversion.
In order to convert your case, you must be a debtor in possession. This means that you have the right to file a plan and the right to maintain a business. If you do not have the resources to file a plan, you may have to delay the filing of your case. This can prompt your creditors to file a motion to dismiss your case or to convert it to a chapter 7.
You must be able to prove that your debts are worth less than your expenses. Your bankruptcy court can look at your monthly income and your expenses to determine if you can prove that your income is lower than your expenses. This can be done by comparing your running balance sheet from the last month with your income and expenses.
In addition to this, you have the right to file a proof of claim. This will give you an opportunity to object to the conversion. However, if you have an unliquidated claim in your case, you do not have to show that it is worth more than your expenses.
It is also possible to have your case converted involuntarily. In this case, you have no right to appeal the conversion.
The Automatic Stay is a temporary federal injunction that stops most creditor collection activities when a debtor files for bankruptcy. It applies to individuals and businesses. It also prevents a debtor from moving to foreclose on property owned by the debtor.
If you receive an email, phone call, or letter from a creditor about an Automatic Stay violation, make sure to notify your attorney. Depending on the case, creditors may be able to continue litigation by filing a motion with the bankruptcy court.
The most common contested motions are attempting to use cash collateral to pay off a loan, seeking credit, and a motion to allow the use of real estate. In some cases, the debtor’s continued business operations could lead to a motion to lift the stay.
The Automatic Stay is often the primary consideration when a debtor files for bankruptcy. This is because the automatic stay puts all creditors on an even playing field. It also serves to protect the debtor by preventing government agencies and collection agents from pursuing them.
If the debtor does not make payments, creditors can petition the bankruptcy court to lift the Automatic Stay. The length of the stay will vary depending on the type of bankruptcy and the type of collection activity directed toward the debtor.
The most important protection for a debtor in a chapter 11 case is Bankruptcy Code Section 362. It goes into effect immediately when the debtor files for bankruptcy. It prohibits most types of lawsuits, bank account restraints, foreclosures, and wage garnishments. It also provides a list of exceptions that apply to the stay. The automatic stay is not applied to certain tax-related proceedings.
Congress added two more exceptions to the automatic stay. One exception is evictions by landlords who had obtained a judgment of possession. The other is unlawful substance use by a tenant. During the stay, these tenants can be protected from eviction by the bankruptcy court.
There are also some gray areas. The Tenth Circuit is very liberal in construing willfulness.