My Debtor Filed for Bankruptcy – Now What?
If you’ve received a notice from the U.S. Bankruptcy Court indicating that one of your debtors has filed for bankruptcy, you may be confused about how to respond. Well, it depends upon the type of bankruptcy filed.
Bankruptcy Chapters People are often surprised to learn that there are actually six different types of bankruptcy under the U.S. Bankruptcy Code:
Chapter 7 Liquidation for individuals and businesses
Chapter 9 Reorganization for municipalities
Chapter 11 Reorganization for corporations, partnerships or LLCs (and individuals in rare instances)
Chapter 12 Reorganization for family farmers and fishermen
Chapter 13 Reorganization for individuals and sole proprietorship’s
Chapter 15 Cross-Border Insolvency for foreign companies with U.S. debts
One thing all these bankruptcy types have in common: Once the petition is filed, you are prohibited from attempting to collect the debt.
Need a Proof of Claim? If your debtor filed for bankruptcy while BARR Credit Services was working the account then we’ll gladly prepare and file the Proof of Claim on your behalf at no cost! This is a value-added service for which most agencies and attorneys charge a fee.
For our purposes, we’ll focus on the three most common types of bankruptcy: Chapter 7, Chapter 11 and Chapter 13.
Chapter 7 Liquidation In a Chapter 7 liquidation, the debtor’s financial obligations are virtually wiped clean (with a few exceptions). Both individuals and businesses are eligible to file Chapter 7.If you received a Notice of Bankruptcy from the U.S. Bankruptcy Court, it includes information about a “341 Meeting,” also known as a “Meeting of Creditors.” In a Chapter 7, the purpose of this meeting with the bankruptcy trustee is to determine if the debtor owns any assets which can be liquidated and distributed to creditors.
341 Meetings are held for every type of bankruptcy. Despite the name, most creditors do not typically attend the 341 Meeting. However, there are certain situations when you would want to attend, specifically:
If the debt is secured, you may need to clarify the debtor’s intentions. For instance, in a Chapter 7 your debtor may surrender the secured property, keep the property and reaffirm the debt, or redeem the property for its replacement value.
If you believe there are discrepancies between the information provided in the bankruptcy petition and the information your debtor submitted when applying for credit.
After the 341 Meeting, you will receive a notice from the court, indicating whether the Chapter 7 case was deemed to be a “No Asset” or “Asset” bankruptcy. If the case is “No Asset,” and you are an unsecured creditor, you will not receive any payments.However, if the case is deemed to be an “Asset” bankruptcy, unsecured creditors may submit a Proof of Claim in order to be included in the distribution of assets.
Chapter 11 Reorganization Chapter 11 reorganization is designed for businesses that want to keep operating but need time to restructure their finances in order to pay the bills. Because of its complexity, Chapter 11 is typically used only by corporate entities.
Like the Chapter 7, there is a 341 Meeting in a Chapter 11 bankruptcy, also. However, the purpose is different. For a Chapter 11, the U.S. Trustee uses this meeting to gather information about the debtor’s business plan and determine its feasibility, explain the debtor’s obligations, and (if necessary) inspect the debtor’s books.
Once the Chapter 11 petition is filed, the debtor-business has four months to prepare a reorganization plan. After that, creditors can propose reorganization plans through a “creditors’ committee.” The primary purpose of the creditors’ committee is to ensure that unsecured creditors — who are often owed relatively small sums — are adequately represented in the proceedings.
The U.S. Trustee determines who to include on the creditors’ committee, selecting from the unsecured creditors with the 20 largest claims against the debtor-business. If you are one of those, you will most likely be included.
While membership on the committee often involves months of difficult work with no compensation (other than expense reimbursement), it does have its benefits. It provides the creditors with greater control over the amount and method of payment they’ll receive and allows them to better direct the debtor’s business.
The creditors’ committee must approve the debtor’s reorganization plan before it can be approved by the bankruptcy court. While there is no time limit on completing a Chapter 11 repayment plan, most take between six months and two years.
Proof of Claim in a Chapter 11 If you’re a creditor in a Chapter 11 case, you do not need to file a Proof of Claim if you agree with the amount due listed in the bankruptcy petition. However, if you believe you’re owed more money than indicated (or if the claim is listed as disputed, contingent or unliquidated), you should file a Proof of Claim for the full amount owed.
Chapter 13 Reorganization Another type of reorganization is Chapter 13. It applies to individuals and sole proprietors of businesses.
As with the Chapter 7 and Chapter 11, all creditors in a Chapter 13 bankruptcy will receive a “Notice of Bankruptcy Case Filing” and 341 Meeting. In a Chapter 13, the purpose of the 341 Meeting is to determine if the debtor’s proposed repayment plan should be approved.
As part of a Chapter 13 three-to-five-year repayment plan, the debtor must include the proposed amount to be paid to unsecured creditors. This amount will depend on the disposable income available, but it cannot be less than what the creditor would have received in a Chapter 7 Asset bankruptcy.
You’ve heard “through the grapevine” that one of your debtors has filed for bankruptcy, but you haven’t received a notice from the bankruptcy court. What should you do?
Fortunately, there is a way to confirm if a bankruptcy has been filed. It’s called the Public Access to Court Electronic Records (PACER) system. By logging on to PACER, you can verify if your debtor has filed and if you were listed as a creditor. (If the debt was incurred prior to the date of filing, you should be listed.)
For this service, the courts charge 10 cents for each page accessed. Since bankruptcy petitions can be 100 pages or more, this cost can add up quickly. On the other hand, BARR Credit Services has access to the PACER site and can conduct the necessary research for you, free of charge.
If your debtor has filed a Chapter 13 and the debt is secured, there are three options for treatment of those financial obligations:
The secured property may be surrendered back to you.
If your debtor is not behind on his payments, he may keep the secured property and continue to make payments to you “outside” of the Chapter 13 plan, just as before filing.
If your debtor is behind on his payments, he may keep the property and pay for it through the Chapter 13 plan.
Once the Chapter 13 plan has been approved by the bankruptcy court, claims will be paid out based on priority. For instance, secured debts are paid first, then priority debts (such as taxes and domestic support obligations), and then general unsecured debts.
This article originally appeared on the BARR Credit Services website. It is used with permission.