Bankruptcy Chapter 11
Chapter 11 bankruptcy is designed to allow struggling businesses to restructure their finances and maximize the return to their creditors and owners. Businesses turn to Chapter 11 bankruptcy when pinched financially, often due to a temporary downturn. It can help a viable business keep the doors open long enough to regroup and re-imagine a future forward strategy. It doesn’t matter whether the company is avoiding paying vendors, having a tough time meeting payroll or rent, or struggling with some other obligation that’s come due to the debt relief afforded by Chapter 11 gets businesses back on track.
Collection Actions Stop
All bankruptcy chapters work by stopping the collection process. Once filed, the automatic stay prohibits most creditors from pursuing you, giving you, your creditors, and the court the breathing room needed to address finances in an organized fashion. For instance, the stay will temporarily stop:
• payment requests
• an eviction or foreclosure
• a collections trial
• bank levies, till taps, property seizure, and
• other collection processes.
Filer Retains Control of the Business
Unlike other bankruptcy chapters, a bankruptcy trustee isn’t put in charge of the business and other bankruptcy property. The filer continues to run the everyday functions of the business as a debtor in possession during the Chapter 11 bankruptcy.
Debt Relief through a Payment Plan
The goal of Chapter 11 is to create a financial plan that the filer, creditors, and the court agree will enable the company to remain open and prosper. The plan can include modifying interest, payment due dates, and other terms—it can even discharge (erase) debt entirely. Most plans provide for at least some downsizing of the debtor’s operations to reduce expenses and free up assets. In some cases, “liquidating plans” shutdown the debtor’s operations and provide for the orderly sale of its remaining property (although a debtor can accomplish this in a Chapter 7 business bankruptcy.) If all necessary creditors approve of the plan, it becomes a new contract, and the filer receives the debt discharge immediately. If the court approves the plan without creditor consent, such as in Chapter 11, Subchapter V, the filer must make all required payments before receiving the debt discharge.
When possible, most debtors elect to file for bankruptcy under Chapter 7 or 13 to avoid the time, cost, and risk involved in Chapter 11 proceedings.
• Chapter 7 for individuals: People who file for Chapter 7 keep the things they need to maintain a household and employment. All other property gets sold for the benefit of creditors. In exchange, qualifying debt gets discharged without the need to pay into a repayment plan.
• Chapter 7 for small business owners. It’s unusual for a small business to file for Chapter 7. Not only will Chapter 7 close most companies, but business entities (other than sole proprietors) aren’t entitled to a debt discharge. Plus, a business owner can discharge more debt—business and personal alike—by personally filing an individual Chapter 7 case after the business closure. But Chapter 7 can make sense in some cases. For instance, sole proprietors with service-only businesses often do well filing for Chapter 7 bankruptcy because they can discharge personal and business debt without jeopardizing the service-focused business.
• Chapter 13 for individuals and small business owners. Companies can’t file a Chapter 13 case; however, sometimes stakeholders find that it’s cheaper to file Chapter 13 individually if reorganizing personal finances provides enough financial relief to keep the company afloat. For instance, paying a reduced amount toward personal credit cards and other debt will often allow the filer to draw less from the business.
• Chapter 11 for individuals and small business owners. Sometimes Chapter 11 bankruptcy is the only option available for a small business. In that case, Chapter 11, Subchapter V includes special provisions to streamline and expedite Chapter 11 bankruptcy for small business owners.
A Chapter 11 case begins with the filing of a petition in bankruptcy court. Generally, Chapter 11 cases are voluntary and it is the debtor who takes the initiative and seeks bankruptcy relief. Occasionally, however, creditors will band together to file an involuntary bankruptcy petition against a defaulting debtor. Most debtors file where the business is located, but business debtors can file bankruptcy where they are “domiciled” (incorporated or otherwise organized). There is no absolute limit on the duration of a Chapter 11 case. Some Chapter 11 cases wrap up within a few months, but it’s more usual for it to take six months to two years for a Chapter 11 case to come to a close. While the debtor ordinarily continues running the business as a debtor in possession, the bankruptcy court must approve:
• any assets the debtor wouldn’t sell in the ordinary course of business, such as real property
• entering into or breaking a lease
• mortgage or other secured financing arrangements that allow the debtor to borrow money
• shutting down or expanding business operations
• entering into or modifying union, vendor, licensing, and other contracts and agreements, and
• the retention of, and payment of fees and expenses to, attorneys and other professionals.
Creditors and the Creditor Committee
Creditors, shareholders, and other parties in interest may support or oppose actions that require bankruptcy court approval. The bankruptcy court will consider input from creditors and other parties when deciding how to proceed. Formal votes by creditors and equity holders, however, are taken only in connection with proposed Chapter 11 plans. Unsecured creditors participate in the Chapter 11 case through a committee appointed to represent their interests. The unsecured creditors’ committee can retain attorneys and other professionals to assist it at the debtor’s expense. In some cases, equity security (i.e., shareholder) and other committees also take an active role.
The Disclosure Statement
The filer must fully disclose background information so that a creditor can make an informed decision about the feasibility of the proposed plan. The fact that creditors can object to the disclosure statement and the actual plan creates two rounds of costly litigation. The court sets dates for plan objections and creditor voting after approving the disclosure statement.
Chapter 11 Reorganization Plans
Ordinarily, the debtor has the exclusive right to propose a reorganization plan for the first four months; however, the court can extend the debtor’s “exclusivity period” for to up 18 months after the petition date. This provision is one of the reasons why Chapter 11 is so costly. Once the exclusivity period expires, the creditors’ committee or other parties can propose alternate reorganization plans. But more often, creditors or other parties dissatisfied with the debtor’s progress will move to dismiss or convert the case to Chapter 7. Creditors are entitled to vote on whether they accept a proposed Chapter 11 plan. At least one class of impaired claims must vote in favor of a Chapter plan. An impaired claim is an obligation that will not be paid in full upon plan confirmation or when originally due.
Chapter 11 Plan Confirmation
In reality, the debtor and creditors can agree to any plan that they choose. If a creditor objects to the plan, however, the court will consider factors, including:
• Feasibility: The bankruptcy court must find that the proposed plan is feasible or likely to succeed. The debtor must prove the ability to raise sufficient revenues to cover expenses and creditor payments.
• Good Faith: The plan must be proposed in good faith and not seek to further an agenda forbidden under the law.
• Best Interests of Creditors: The “best interests” test requires that creditors receive at least as much under a proposed plan as they would if the debtor’s case were converted to a Chapter 7 liquidation (wherein the debtor’s property would be sold and distributed to creditors). In some cases, the “best interests” test requires the debtor to pay all of its creditors in full. Most Chapter 11 debtors, however, are financially underwater and can meet the best interests test by paying creditors only a fraction of what they owe.
• Fair and Equitable: The plan also must be fair and equitable. Under the fair and equitable test secured creditors must be paid, over time, at least the value of their collateral. A creditor with a lien against real estate or personal property (such as inventory or equipment) is secured. The debtor’s owners cannot retain anything on account of their equity interests unless all obligations are paid in full, either immediately upon plan confirmation or over time (and with interest). The bankruptcy court can allow equity holders to retain ownership interests in the debtor in exchange for “new money” contributed to pay reorganization expenses. Otherwise, however, equity holders lose all ownership rights upon plan confirmation.
The Credit Counseling Course
If you are filing for Chapter 11 as an individual (not for your business), you must complete a credit counseling course by an approved agency prior to filing your case. If you are filing the Chapter 11 to reorganize the debts of a business, you do not have to take this counseling.
The Chapter 11 Petition
You must prepare your petition by completing a list of all of your (or your company’s) assets, debts, income, and expenses along with a summary of your financial affairs. Once you have completed this task and reviewed all of the documents for accuracy, you can file your petition with bankruptcy clerk’s office. In most circumstances, the filing of the petition triggers what is referred to as an “automatic stay.” This stay prohibits most creditors from continuing collection efforts against you or your assets unless the bankruptcy judge gives them permission to do so.
Monthly Operating Reports
During your Chapter 11 bankruptcy case, you must prepare and file with the court monthly operating reports. These reports reflect your income and expenses for that particular month. The reports are available to your creditors, the court, and the United States Trustee. The reports allow these entities to assess whether or not they think your proposed plan of reorganization will be feasible. Since feasibility is required to get your plan approved by the judge, you should pay close attention to your monthly operating reports. Most debtors find it advantageous to obtain court permission to pay an accountant to complete these.
Many debtors will be required to attend an initial debtor interview. This is an opportunity for the United States Trustee to meet with the debtor to learn some preliminary information about the case and make sure the debtor understands its responsibilities. After that, you must attend the 341 meeting of creditors. This is scheduled about thirty to forty-five days after the filing of your case. This is a public hearing that will give your creditors an opportunity to question you under oath regarding your bankruptcy petition. In Chapter 11 cases it generally lasts one to two hours.
The Disclosure Statement and Disclosure Hearing
You must file a disclosure statement along with a proposed plan of reorganization and mail these documents to every party in interest, including all of your creditors. The disclosure statement explains how creditors may participate in the bankruptcy and provides information about how the creditor’s rights may be adversely affected. There will be a hearing on the disclosure statement where parties in interest can object to the statement’s language. These disclosure statements are typically approved on a regular basis and the hearing is a formality.
The Proposed Plan of Reorganization
The plan of reorganization states how you propose to treat each of your creditors. The creditors are placed in classes according to whether they are a priority debt creditor, a secured debt creditor, or an unsecured debt creditor. If a creditor doesn’t like how it’s treated in your plan, you can file a motion asking the judge to force the creditor to accept the plan. If the judge does force the creditor to accept the plan, this is called a cram down.
The Confirmation Hearing
At your confirmation hearing, you ask the judge to approve your plan of reorganization. Unless you have obtained votes of acceptance from each of your creditor classes, the judge will not approve your plan. At that point, you can file a motion for cram down of the non-accepting classes and the court will reschedule the confirmation hearing. If the creditor doesn’t respond to a motion for cram down, it will be deemed to accept the plan. If the creditor does respond, you can negotiate with the creditor to try to get it to accept plan treatment. If you cannot agree, then the judge will decide at a hearing.
Making Payments Under the Plan
Once the judge has approved your plan, you will start making payments to the creditors according to how they are treated in the confirmed plan. This constitutes a new contract with each of your creditors. If you default on payments, then the creditor may sue you on that basis and you will have little recourse. Depending on what type of debts you reorganized through the bankruptcy, your payments may continue for many years. Debts like mortgages or car notes typically get re-amortized over an extended period. Once you make all required payments to your unsecured creditor class, you can ask the court for a discharge of the remainder of your unsecured debts. The discharge prevents any of these creditors from collecting on any of the debts in the plan. The discharge is usually the main objective of filing the Chapter 11 bankruptcy and is the end of your case.
