Bankruptcy. Assignment 18 Introduction to Bankruptcy (Claims; Automatic Stay; Relief from Stay; After-Acquired Property; Proceeds in Bankruptcy)

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1 Assignment 18 Introduction to Bankruptcy (Claims; Automatic Stay; Relief from Stay; After-Acquired Property; Proceeds in Bankruptcy) Bankruptcy is akin to financial death ; debtor s nonexempt assets, on petition date, go into debtor s estate [BC 541] Estate is administered for benefit of pre-bankruptcy creditors Claims against debtor are paid to creditors as dictated by U.S. Bankruptcy Code Bankruptcy Chapter 7 (Liquidation) Debtor surrenders its nonexempt property to the bankruptcy trustee, which sells that property and distributes the sale proceeds to pay creditors Debtor s pre-bankruptcy debts are discharged (can no longer be legally enforced vs. debtor), except for debts that are either (a) Nondischargeable under bankruptcy law, or (b) Reaffirmed by debtor (only as permitted in bankruptcy) Reorganization (Chapters 11-13) Debtor keeps its pre-bankruptcy property, and uses its post-bankruptcy income to repay creditor claims under a plan of reorganization Plan has to satisfy certain standards for how it treats creditors (and in Chapter 11, creditors vote on plan) If court confirms plan, the plan binds all creditors (pre-bankruptcy debt terms are replaced by plan terms); if not, case is dismissed/converted to Ch. 7 1

2 Issues for Secured Parties How does bankruptcy impact the debtorcreditor relationship? How is a creditor s claim calculated and paid? How are secured and unsecured claims treated differently? What are the trustee s avoiding powers and how do they affect secured creditors? Hall has line of credit at First Bank Balance due >>> $50,000 Hall is in default (he s made no monthly minimum payment for two months) Hall files bankruptcy petition Loan officer sees Hall at dinner, asks him to make payments or First Bank would have to freeze his credit line. Does Bank have a problem? Problem 1 11 U.S.C. 362(a): the filing of a bankruptcy petition results in the imposition of the automatic stay Automatic stay is an injunction preventing creditors from acting to collect debts owed by debtor or enforce liens against property of bankruptcy estate No court order needed (arises by operation of law) Automatic Stay 11 USC 362(a): petition is a stay (injunction) against: (1) any action to enforce prepetition claim vs. debtor (2) enforcement of a pre-petition judgment against debtor (3) repossession of estate property (4), (5) any act to perfect or enforce a lien vs. property of the estate or the debtor (6) any other action to collect a pre-petition claim vs. the debtor Automatic Stay 2

3 Automatic Stay: Objectives Breathing space for reorganizing debtor Debtor can focus on getting back on its feet, rather than having to defend against creditor collection efforts in court or otherwise Claims are resolved/paid in a collective proceeding, supervised by court Similar types of creditors are treated similarly Avoids distress sale disposition of debtor s assets at low prices (no race to the courthouse ) Problem 1 First Bank s only legal collection activity is to file a proof of claim w/the bankruptcy court [ 501(a)] If so, First Bank will hold a valid claim [ 502(a)], unless the debtor or the trustee establishes a valid defense to First Bank s claim [ 502(b)] Any other collection effort (automated monthly bills, or this dinner conversation) violates the stay! Note: A willful (i.e., knowing) violation of the automatic stay can result in imposition of punitive damages! [ 362(k)] Oct. 15, 10:00am: Grant buys a Porsche for $10,000 cash at a foreclosure sale held by Commerce Bank Oct. 25: Grant gets a letter from Ch. 7 bankruptcy trustee for Harris, demanding return of the Porsche Harris (debtor/owner of Porsche) had filed Ch. 7 petition 15 minutes prior to the foreclosure sale Neither Grant nor Commerce Bank knew this Must Grant comply? Problem 2 A. Yes B. No, Grant was a BFP C. More facts needed BC 362(a): petition is a stay (injunction) against: (4), (5) any act to enforce a lien vs. property of the estate/debtor (including a foreclosure sale) Actions taken in violation of the automatic stay are considered to be void ab initio [Understanding, p. 333] Grant must turn Porsche over to trustee [BC 542(a)] Automatic Stay 3

4 Problem 2: Effect of Sale? Sale was void, so it didn t extinguish Commerce Bank s lien on the Porsche Grant can recover $10,000 cash from Commerce Bank Commerce Bank still has its SI in the car to secure the unpaid balance of Harris s debt (assuming the SI was properly perfected, it remains valid despite the bankruptcy filing) Bankruptcy and Secured Parties Bankruptcy generally respects state law property rights (like a mortgage on land or an Article 9 security interest on personal property) Liens generally survive bankruptcy petition (i.e., they remain valid against the collateral) This respects a secured creditor s state law priority over unsecured/junior creditors But the petition stays enforcement of lien [ 362] A Variant on Problem 2 Harris files a Chapter 7 bankruptcy petition Commerce Bank has a perfected SI in Harris s Porsche You are Harris s Chapter 7 bankruptcy trustee Do you take possession of Porsche and sell it? The Porsche is property of the estate [ 541(a)(1)] But, whether Ch. 7 trustee should attempt to sell it depends on the circumstances Key fact: Does Harris have any nonexempt equity in the Porsche (i.e., is car s FMV >>> balance owed to Commerce Bank, junior lienholders, and the amount of Harris s exemption in the car, if any)? If so, the Trustee wants to sell the car to capture that equity for the benefit of unsecured creditors If not, Trustee shouldn t bother (all sale proceeds would go to secured creditors and/or Harris anyway)! 4

5 If there s no equity (or minimal equity) in the collateral, the Trustee will abandon it Trustee can, after notice and a hearing, abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate [ 554(a)] Abandonment spares the trustee the burden of paying to maintain estate property if there s nothing in it for the estate Abandonment takes the property out of the bankruptcy estate and vests title to that property back in the debtor Petition date: Tramp owes Bank $20,000 on line of credit (which had 10% interest rate) Bank has a SI in Tramp s equipment (value = $10,000) Bank s total claim in bankruptcy is: A. $10,000 B. $20,000 C. $20, % interest until Bank s claim is paid Problem 3(a): Calculating a Claim Bank can file a claim in the amount of $20,000 (unpaid amount due on petition date) Bank s claim does not include post-petition interest Creditors generally can t recover unmatured interest as part of their bankruptcy claim [ 502(b)(2)] Problem 3(a): Calculating a Claim Why not allow interest to accrue on unsecured claims after the petition date? [ 502(b)(2)] In liquidation, distribution is a zero-sum game Allowing unsecured creditors to collect interest would just increase total $$ amount of claims, and diminish dividend rate on payments to unsecured creditors Note: interest still accrues on debt under state law! [distinguish between debt and claim] If Tramp s case is dismissed (or discharge is denied), creditor could later recover in state court any interest that accrued on the debt during Tramp s bankruptcy 5

6 Bifurcation of Claims In Problem 3(a), Bank is an undersecured creditor Tramp; balance of debt ($20,000) >>> value of collateral ($10,000) 506(a) bifurcates Bank s claim (i.e., it treats it as 2 different claims, for bankruptcy purposes) Bank has a secured claim, in the amount of the value of the collateral ($10,000) [ 506(a)] This claim will get paid in full; Bank keeps its SI in the collateral until Bank gets paid Bank also has an unsecured claim ($10,000) for the balance [ 502(a)] This claim is paid along w/other unsecured claims Smith files bankruptcy Smith owes Bank $10,000 on a promissory note (which bears interest at 10%) Bank has a SI in Smith s diamond (value = $20,000) What is the amount of Bank s claim(s) in Smith s bankruptcy case? Problem 3(b): Calculating a Claim Bank can file a claim in the amount of $10,000 (amount owed on the petition date) as a secured claim But Bank can also add postpetition interest to its claim, b/c it is an oversecured creditor (i.e., collateral s value >> balance of debt) [BC 506(b)] Problem 3(b): Calculating a Claim 506. Determination of secured status (a) [Omitted] (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose. 6

7 Oversecured Creditors In Problem 3(b), Bank is an oversecured creditor (value of collateral >> balance of debt) [ 506(a)] Oversecured creditor s claim accrues what is often called pendency interest (i.e., interest continues to accrue on the creditor s claim, during bankruptcy, until claim is paid) [ 506(b)] Unsecured claim = no pendency interest [ 502(b)(2)] Accrual of interest (out of equity cushion ) protects oversecured creditor from impact of delay/stay Relief from the Automatic Stay Upon motion by secured party, secured party can seek relief from the automatic stay If granted relief by the court, secured party can pursue its state law remedies (e.g., Article 9 foreclosure sale) Standards governing a creditor s entitlement to relief from stay are governed by Bankruptcy Code 362(d) Standards for Relief from Stay (1) For cause, including lack of adequate protection of creditor s security interest in property [ 362(d)(1)] (2) Debtor does not have any equity in the collateral, and the collateral is not necessary for an effective reorganization of debtor [ 362(d)(2)] Relief from Stay: Procedure Secured party must file motion w/court After motion for relief is filed, stay remains in place for 30 days [ 362(e)] After 30 days, stay is lifted unless court, after notice/hearing, orders it to be continued Secured party has burden of proof re: debtor s lack of equity in collateral [ 362(g)(1)] Debtor has burden re: collateral s necessity to debtor s effective reorganization [ 362(g)(2)] 7

8 Suppose that Harris (Debtor in Problem 2) files a Chapter 7 bankruptcy petition He owes Commerce Bank $25,000, secured by a perfected SI in Porsche Value of Porsche = $20,000 Ch. 7 trustee abandons estate s interest in Porsche to Harris Commerce Bank moves to lift the automatic stay, to conduct a foreclosure sale The Court should: A. Lift the stay B. Deny the motion and allow Debtor to keep driving the car Relief from Stay Bank will argue that it should be allowed relief from stay to foreclose under 362(d)(2), because: Debtor has no equity in the car, and Debtor is not reorganizing, but is liquidating Bank is correct, so is there any way Debtor can still retain the car? Redemption [ 722] Individual debtor can redeem consumer goods from a lien securing a dischargeable consumer debt, if: The goods are exempt property or the trustee has abandoned the goods, and Debtor pays the full amount of the lienholder s secured claim in cash, in a lump sum, at the time of redemption In Problem 2, Debtor could only redeem car by making lump-sum payment of $20,000 cash! Reaffirmation [ 524(c)] Alternatively, if Debtor Harris doesn t have cash to redeem, he could still keep the car if he enters into a reaffirmation agreement with Bank Debt would not be discharged; Harris would continue to make payments on the debt as agreed with Bank Here, reaffirmation is a bad solution for Harris (who would have to pay $25,000 for a $20,000 car); Debtor may be better off allowing foreclosure, getting discharge, and buying another car, if he can 8

9 If Debtor Harris can t redeem the car and doesn t want to reaffirm the debt (or if court refuses to approve Debtor s reaffirmation agreement), the court will lift the stay and allow Bank to foreclose its SI in the car [ 362(d)(2)], because: Harris has no equity in the car (debt = $25,000, while value of car = $20,000), and Car is not necessary for an effective reorganization of Harris (who is being liquidated in Chapter 7) Problem 4 CCC owes ACF $200,000 ACF has a perfected SI in six trucks (FMV = $180,000) that CCC uses to do concrete jobs CCC files Ch. 11 bankruptcy petition and begins negotiating with creditors over the terms of its reorganization plan ACF moves for relief from stay to foreclose on the trucks. Should Court grant it relief? Problem 4 Court is unlikely to grant ACF relief under 362(d)(2) Although CCC does not have equity in the trucks, the trucks are necessary for CCC to reorganize If the trucks are repossessed, CCC can t do concrete jobs, and can t generate the earnings necessary to fund its reorganization plan Debtor s Use of Collateral Concern: CCC s continuing use of the trucks threatens ACF s SI in the trucks Further use means depreciation in value Right now, ACF is $20,000 undersecured If trucks depreciate further, ACF may be even more undersecured (and thus likely to collect even less) if CCC is unable to confirm or perform a Chapter 11 plan 9

10 Adequate Protection CCC gets to use the trucks during bankruptcy [ 363(c)] But, CCC s use of the trucks may cause them to depreciate in value, and ACF is already undersecured ACF can thus demand adequate protection as a condition to CCC s use of the trucks [ 363(e)] If CCC cannot provide adequate protection, court must lift the stay [ 362(d)(1)] Adequate Protection CCC could provide adequate protection by: Making cash payments to ACF = expected depreciation in value of trucks [ 361(1)] Granting a replacement lien (a SI in other property the value of which >> expected depreciation in trucks) [ 361(2)] Providing ACF with the indubitable equivalent of its SI in the trucks[ 361(3)] Problem 5 CCC owes ACF $200,000 ACF has a perfected SI in six trucks (FMV = $300,000) that CCC uses to do concrete jobs CCC files Ch. 11 bankruptcy petition and begins negotiating with creditors over the terms of its reorganization plan ACF moves for relief from stay to foreclose on the trucks. Should Court grant it relief? Problem 5: Court Should: A. Lift the stay under 362(d)(1) (lack of adequate protection) B. Lift the stay under 362(d)(2) (no equity/ collateral not necessary for reorganization) C. Both A and B D. Deny the motion and leave stay in place 10

11 Problem 5 Court should deny motion Debtor has $100,000 of equity (which should be preserved for the benefit of unsecured creditors and Debtor s ability to reorganize), so no relief under 362(d)(2) ACF is adequately protected by equity cushion (trucks would have to depreciate by >> $100K before ACF would be less than fully secured), so no relief under 362(d)(1) Problem 6 Bank has a perfected SI in all inventory, including after-acquired, of Sight and Sound (an electronics retailer) October 31: Sight and Sound files Ch. 11 If Sight and Sound receives a shipment of inventory on Monday, Nov. 5, does Bank have a SI in that inventory? After-Acquired Property Clauses in Bankruptcy Outside of bankruptcy, after-acquired clauses are valid/enforceable [ 9-204(a)] Once debtor files for bankruptcy, however, an afteracquired property clause is cut off and is no longer effective [BC 552(a)] Problem 6: Bank s after-acquired inventory clause in the security agreement would be ineffective to create a SI in Nov. 7 inventory shipment (post-petition) BC 552(a): Rationale If Bank s SI extended to post-petition inventory, Sight and Sound might not be able to obtain credit it needs to reorganize in bankruptcy By virtue of 552(a), Sight and Sound can use its post-petition assets as collateral to obtain credit to enable it to operate in bankruptcy (i.e., acquire new inventory) while attempting to reorganize In Article 9 terms: post-bankruptcy, Sight and Sound is not a new debtor [ 9-203(d), (e)] 11

12 Problem 6 PCB has perfected SI in all inventory (incl. after-acquired) of Sight and Sound October 31: Sight and Sound files Chapter 11 November 1-5: Sight and Sound sells 200 units of inventory, either for cash or on installment contracts Does PCB have a SI in the cash and installment contracts arising from these sales? Proceeds in Bankruptcy Bank did have a valid SI in the inventory that was sold November 1-5 (b/c it was inventory acquired prior to bankruptcy and was properly perfected) Even though the cash and installment contracts were not received until after bankruptcy (post-petition), they are still proceeds of the prepetition inventory Thus, Bank has a valid SI in the cash and the installment contracts [BC 552(b)(1); UCC 9-315(a)] Problem 6 What must Bank do as soon as it learns of bankruptcy filing of Sight and Sound? Bank should immediately move for relief from stay Bank: Sight and Sound shouldn t be allowed to use/sell our collateral, unless we receive adequate protection of our interest in it and the proceeds of it All cash proceeds of Bank s inventory should be segregated (and not used w/out court approval) If Sight and Sound s wants to use that cash (i.e., if it wants post-petition credit from Bank), Bank should receive a SI in new post-petition inventory (or should receive some other form of adequate protection) 12

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