Posts Tagged ‘Chapter 11’

Chapter 11- Not Just for Corporations Anymore

Friday, June 1st, 2012

In the past, Chapter 11 of the Bankruptcy Code has been used primarily by corporations hoping to reorganize and stay in business.  However, with the real estate market downturn, more individuals have taken advantage of Chapter 11 to reorganize and retain their investment property and other property.

Most individuals are familiar with Chapter 7 of the Bankruptcy Code.  Fewer are familiar with Chapter 13.  These two chapters of the Code are used most often by individuals seeking to file bankruptcy.  For example, during the last twelve months, there were approximately 1.5 million individual bankruptcy filings.  Of this amount, 71% were filed under chapter 7, while 28.8% were filed under chapter 13.  The remaining cases, 1,958, to be exact, were filed under chapter 11, representing a little more than 1/10th of 1% of all filings.  Over the last 10 years, however, Chapter 11 filings have been on the rise.  In 2000, only 711 individuals filed under chapter 11, so the 2011 figure represents an almost 300% increase!

With almost 2,000 individual filings under chapter 11 last year, there must be some benefit for individuals under this chapter of the bankruptcy code.  To understand the possible advantages to a chapter 11 filing it’s important to have a basic understanding of how chapter 7 and chapter 13 work. 

Under chapter 7, the person who files bankruptcy (the debtor) files a petition and schedules listing out all of their assets and debts.  The Court appoints a bankruptcy trustee who takes the debtor’s non-exempt assets and sells them for the benefit of the creditors.  Assets are determined to be exempt under either state or federal law.  In exchange for turning over their property, the debtor receives relief from their debts, called a discharge.  A debtor who has a large amount of non-exempt assets will normally not elect to file under chapter 7.  In addition, individuals with large incomes normally do not qualify under the “means test,” a new test established by Congress in 2005.

For those individuals who do not want to file, or who do not qualify for filing, under chapter 7, they may proceed under chapter 13.  Under this chapter, debtors, in most cases, retain their non-exempt property.  However, to keep their property the debtors are required to repay all of their “disposable income” over a three to five year period of time. After all of their payments are made, the debtors are entitled to receive a discharge of their debts.  As stated above, most debtors who do not elect to file under chapter 7, or who do not qualify, will file for chapter 13.  However, there are some debtors who do not qualify for filing under chapter 13 because they have too much debt.  The current debt limitations for filing chapter 13 are $360,475 in unsecured debt and $1,081,400 in secured debt.  In addition, debtors in chapter 13 are in most cases not permitted to modify mortgages on investment property or other long term debt in chapter 13.

For these debtors, chapter 11 is an excellent alternative to simply surrendering everything to the bank or a trustee in chapter 7.  In extreme cases, a debtor who has significant income and debt may not qualify for chapter 7 or chapter 13, leaving chapter 11 as the only option.  Under chapter 11, the individual debtors file bankruptcy and become “debtors in possession.”  This basically means that they remain in control of all of “their” assets.  However, the assets are not really “theirs” any longer.  Rather, the property is now what is known as “property of the estate.”  The “estate” is comprised of all of the debtor’s rights in any property existing at the time of the bankruptcy filing.  In addition, other property, such as the debtor’s future earnings also become property of the estate.  The bankruptcy code permits the debtor to remain in possession of this property, and imposes on the debtor a fiduciary duty to use this property for the benefit of the estate’s creditors by formulating a plan of reorganization.

As part of the process, the debtor is provided 120 days from the filing to date in which it is the only person or entity who may submit a plan of reorganization.  This period is called the exclusivity period.  This period provides the debtor with a short “breathing spell” from its unsecured creditors so that it can evaluate its financial condition and submit a plan.  The bankruptcy code provides the debtor with the ability to “cram down” and “strip” a mortgage and repay what is owed based upon the value of the real property, the debtor wishes to retain.

For example, if a debtor owns a commercial building that is worth $500,000, with a first position lien owed to the Bank of $700,000, and a second position lien owed to the seller of the building for $200,000, the debtor may propose a plan that “crams down” the Bank by repaying it the sum of $500,000 as a secured debt, with the difference becoming an unsecured debt of $200,000.  The plan could further provide to “strip” the second position lien from the property and treat it entirely as an unsecured debt.  The debtor’s plan can be approved provided that it complies with the other provisions of the bankruptcy code, including paying the secured creditor a market rate of interest, paying into the plan all of the debtor’s disposable income for a five year period, and securing the vote of at least one creditor class in favor of the plan.

While obviously not for everyone, Chapter 11 provides high income, high debt individuals who own property they want to keep a less well known, but excellent alternative to either chapter 7 or 13.  Just a few of the advantages of Chapter 11 over Chapter 7 or 13 is that it allows debtors to keep their property, restructure long term debts and obtain a breathing spell from creditors to enable them to reorganize.  Individuals with high income, debts, or investment property, should consult with an experienced bankruptcy attorney who is familiar with all chapters of the bankruptcy code to best determine their available options.

 

If you have questions about bankruptcy, we encourage you to attend one of our free seminars or contact us at 800-899-2730 for a free personalized consultation. For more information about our seminars please visit http://www.freearizonabankruptcyseminar.com/.

Could you be the next Borders Group, Inc.?

Friday, February 18th, 2011

Borders Group, Inc., owners of the popular Borders bookstores recently filed for Chapter 11 bankruptcy protection. You may be thinking, good for them, but I am going to be filing Chapter 7 or Chapter 13. The reality for many of our clients, they simply do not qualify for Chapter 7 or Chapter 13. For many higher income clients, Chapter 7 is not an option because of the means test. Without considering all of the possibilities, in general, individuals with higher incomes often do not qualify for Chapter 7. For many of them, Chapter 13 is the logical choice.

However, because of 11 USC 109(e), people sometimes do not qualify for Chapter 13 either. 109(e) contains limits on the type and amount of debt you can have and still be eligible for Chapter 13. As of this article, the current limits are $360,475 of unsecured debt and $1,081,400 of secured debt (you do not have to count debts that are contingent or unliquidated in this calculation). Many of the same clients who make too much money to qualify for Chapter 7, are also the ones who were able to borrow in excess of these limits. The result? Often these individuals have to consider a more complicated and costly Chapter 11 case as an individual.

These clients have to play by many of the same rules that Borders will be playing by in its Chapter 11 case. In our practice we have seen a steady increase in the number of individual Chapter 11 cases that are being filed. If you have substantial debt, you should speak to a knowledgeable bankruptcy attorney about your options. Please visit us at www.bankruptcylawyeraz.com to learn more.

What Happens to My Property if I file for Bankruptcy?

Friday, January 7th, 2011

When it comes time to consider filing bankruptcy, clients are always concerned about whether they will lose their property. The answer depends on the type of bankruptcy they file, and the type of property they have.

Under the bankruptcy code, the filing of a bankruptcy case creates an “estate” which is comprised of all of the debtor’s interest (both legal and equitable) in property. Interestingly, property is not defined by the bankruptcy code, but is generally understood to mean anything you own that has any value. It also includes not only your property, but also, if you are married, all of the property you have acquired during your marriage, which is known as community property.

The chapter 7 bankruptcy process requires a bankruptcy trustee to “administer” the property of the estate, which means the trustee has the power to take the property and sell it for the benefit of your creditors. However, the bankruptcy code also permits the debtor to “exempt” certain property from the reach of the trustee and your creditors.

If you have resided in the state of Arizona for at least two years prior to the filing of your bankruptcy case, you may look to Arizona state law (as well as certain federal laws) to determine what property you are entitled to exempt. Common examples of exempt property include:

Equity in your home – $150,000
Certain Home furnishings – $4,000 for a single person; $8,000 for a joint filing
Equity in your vehicle – $5,000 for a single person; $10,000 for a joint filing
IRA or 401(k) plan – unlimited amount (except for contributions made within 120 days of filing bankruptcy.
Clothing – $500 for a single person; $1,000 for a joint filing
Tools of the Trade used in the debtor’s primary business – $2,500.00

These are just a list of the most common types of exempt property. There are additional exemptions and the specific list of exemptions are found in various state and federal laws. There is also property that is not exempt that you might not always think about and will have to surrender to your trustee, such as:

Tax refunds
Equity in the ownership of any incorporated business
25% of earned but unpaid wages at the time the bankruptcy case is filed
Cash
Pre-paid vacations, airline tickets, etc.
Time shares

Careful consideration of applicable exemption law should be done with an experienced bankruptcy attorney prior to filing to avoid losing property that might otherwise been used to your benefit. For example, under certain circumstances, clients may wish to defer filing bankruptcy while they liquidate non-exempt property and use the proceeds for living expenses or to purchase other exempt property. In addition, clients may choose to file chapter 13 bankruptcy, which may allow them to keep their non-exempt property and pay their creditors for the value of that property over a 3 to 5 year period of time.

For more information please visit:

www.mcguiregardner.com or

www.freearizonabankruptcyseminar.com

Debt Limits for Chapter 13 Bankruptcy Recently Increased

Tuesday, August 3rd, 2010

Debt Limits for Chapter 13 Bankruptcy Recently Increased

More and more we are seeing clients who make too much money to qualify for a Chapter 7 bankruptcy as a result of the “means test“.  (You can read more about the means test in our other blog postings).  For some of these individuals Chapter 13 appears to be their only option.  However, when we take a closer look at how much debt they have, some of them don’t qualify for a Chapter 13 case either.  Strange as it may seem, Congress has actually put a cap on the amount of debt you can have and still be eligible for a Chapter 13 bankruptcy.

Many of those same clients who didn’t qualify for a Chapter 7 bankruptcy had too much debt, either secured or unsecured to qualify for Chapter 13, leaving a more expensive, complicated Chapter 11 case as their best option.  However, some relief was recently offered when on April 1, 2010, the debt limits were increased.  Now, debtors can have up to $360,475 of unsecured debt and $1,081,400 of secured debt and still file Chapter 13.

You should still talk to an experienced bankruptcy attorney about your debts and whether they are counted toward these limits.  Not all obligations are included in the calculation and you may find that you thought you didn’t qualify for a Chapter 13 case, when in fact you do.  These issues are best addressed in a personal consultation with an attorney.  If you have questions about bankruptcy, please call us today or visit our website at www.bankruptcylawyeraz.com.


Get Adobe Flash player