Advanced Bankruptcy for Bankers. Candace C. Carlyon, Esq.

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1 Advanced Bankruptcy for Bankers Candace C. Carlyon, Esq. 1

2 Pre Bankruptcy Review loan files, confirm collateral security, obtain as much information as possible Consider timing of remedies (including commencement of foreclosure) Workouts-consider including Acknowledgement of debt and liability No discount unless/until payments completed Acknowledgement of single asset status Bankruptcy venue and attorneys fees provisions 2

3 Commencement of the Case Automatic stay applies regardless of formal (or other) notice Notice of Appearance Will Assist in Insuring that Notices are Received Early dates: Meeting of Creditors Deadline to Object to Exemptions Deadline to Object to Discharge Claims Bar Date 3

4 Creditor s Meeting Held in all cases (although time for questions may be short in chapter 7 or 13) Debtor required to appear and answer questions regarding acts, conduct or property or liabilities and financial condition of the debtor, or any matter which may affect the administration of the estate or the right to discharge 4

5 Creditor s Meeting (continued) Creditor may appear, with or without counsel, and may ask questions (do not need attorney to ask questions) By prior arrangement with the Attorney for the Assistant US Trustee (in Chapter 11) or the case trustee (in 7 or 13) Creditor may bring a court reporter to transcribe the testimony Otherwise, disk can be ordered from the UST s office

6 Creditor s Meeting (cont d) In a Chapter 11, Creditor s Committee organizational meeting may be held immediately after the Notice of Commencement Will contain case no, deadline for filing proof of claim, and date and time of creditors meeting Schedules Will contain list of assets and liabilities Statement of Financial Affairs Will contain information regarding the debtor, its books and records, transfers, and ownership structure 6

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9 Early Case Considerations Cash Collateral Debtor may not utilize without either secured creditor approval or court order Must provide adequate protection Required to account for cash collateral Absolute assignment of rents Freezing accounts to seek relief from the stay to set off against debt 9

10 Early Case Considerations First meeting of creditors Held approximately 45 days after filing of case in any chapter Creditors may ask questions relating to the acts, conduct, property, liabilities and financial condition of the debtor, any matter which may affect the administration of the debtor s estate, or to the debtor s right to discharge. In 11, may also relate to the operating of any business and the desirability of its continuance, the source of any money or property acquired or to be acquired for the plan, and any other matter relevant to the case or to the formulation of a plan Any employee or agent of a creditor may ask questions in a chapter 7 or 13 (need not be an attorney) 10

11 Early Case Considerations Objection to exemptions Deadline to object can be as soon as 30 days after the creditors meeting Nevada exemptions utilized Objection to Discharge (does not apply in Chapter 13) Generally requires bankruptcy adversary case to be filed within 60 days after first date set for first meeting of creditors Common grounds-debt incurred by fraudulent representation of financial condition-must show reasonable reliance and materiality Consumer debt for cash advances of over [$825] within 70 days of BK or luxury goods and services over [$550] within 90 days prior to bankruptcy If unsuccessful, may be liable for debtor s attorneys fees Fraudulent schedules or activity in a chapter 7 may be grounds for denial of any discharge 11

12 Proof of Claim Prima facie evidence of claim Provides notice address Applies if case converted No-brainer unless concern regarding submission to jurisdiction If claim based on writing, generally must attach 12

13 Allowance of Claim 506(b): An oversecured creditor may recover postpetition interest and attorneys fees, but the accrual continues only as long as the collateral still has value. Interest: Interest accrues at the default rate in the contract. Attorneys fees: Fees accumulate if the creditor enforces its rights via litigation. Fees must be reasonable, and the agreement must provide for fees. Non consensual lien impairing exempt property may be subject to avoidance. 13

14 The Automatic Stay 14

15 What is the automatic stay Automatic -an injunction for the price of a filing fee Generally prohibits any action against the Debtor or against property of the estate Actions taken in violation of the automatic stay are void Penalties for knowing violations 15

16 Ineligible debtor Stay does not apply to actions taken to enforce a lien or security interest against real property if the debtor is ineligible to file bankruptcy under 109(g) [prior case dismissed within prior 180 days] or if the current case was filed in violation of a bankruptcy court order in a prior case prohibiting the debtor from being a debtor in another case under title

17 Grounds for Relief From Stay-Real Property Serial Filing Relief from stay granted where- The court finds that the bankruptcy petition was part of a scheme to hinder, delay, or defraud creditors, involving either Transfer of all or an interest in the property without the consent of the creditor or court approval, or Multiple filings involving the property 17

18 Grounds for Relief-Adequate Protection Lack of adequate protection of secured claim Generally, applicable where there is not sufficient equity to protect collateral, or equity will be eroded by declining value Debtor may be required to make payments or provide additional collateral in order to keep stay in effect If undersecured, debtor is not responsible for accruing interest 18

19 (d)(2) Debtor has no equity in the property securing the lien (creditors burden to demonstrate, including proving value) Property is not necessary to an effective reorganization Not just that debtor needs the property, debtor must show reasonable possibility of reorganization that is in prospect May be enhanced burden for debtor after 4-6 months in bankruptcy 19

20 Cause Uncommon remedy May include to proceed against insurance proceeds, to proceed with arbitration or litigation to liquidate claim, bad faith filing 20

21 Single Asset Real Estate Case ((d)(3)) Substantially all income and business is operation of real property (except fewer than 4 residential units)-single project If debtor does not indicate on petition, may request court determination Entitled to relief from stay unless, within 90 days of petition, debtor either Files plan with reasonable possibility of confirmation within a reasonable time; or Commences payment of non-default contract rate interest on secured claim 21

22 Small Business Debtor Person engaged in commercial or business activities Includes debtor affiliates Excludes cases where primary activity of debtor is owning or operating real property or activities incidental to owning real property Aggregate noncontingent liquidated secured and unsecured debts as of the date of the petition or the date of the order for relief in an amount not more than $2,000,000 Excludes debts owed to 1 or more affiliates or insiders No Committee OR Court has determined that the committee of unsecured creditors is not sufficiently active and representative to provide effective oversight of the debtor Does not include any member of a group of affiliated debtors that has aggregate, noncontingent liquidated secured and unsecured debts in an amount greater than $2,000,000 (excluding debt owed to 1 or more affiliates or insiders) 22

23 Stay (presumably) does not apply small business debtor if Another small business case pending for same Debtor Prior small business case dismissed within last two years Prior small business case plan confirmed within last two years; or Debtor acquired assets of small business debtor unless shows good faith 23

24 Timing of Hearing on Lift Stay Motion stay terminates thirty days after lift stay motion unless otherwise ordered where the debtor is an individual the stay terminates 60 days after lift stay motion unless: (i) a final decision is rendered by the court during the 60 day period; or (ii) the 60 day period is extended by agreement of all parties in interest or by the court. 24

25 When is Stay Terminated? (362(c)) Generally, the automatic stay continues in effect until the property is no longer property of the estate The automatic stay terminates at the earliest of: the time the case is closed; the time the case is dismissed; or the time discharge is granted If the debtor has filed a bankruptcy case within the previous year of the filing of a new case, the automatic stay goes into effect when the new case is filed, but only stays in effect for thirty days unless the debtor can show good faith in filing the new case If the debtor has filed two or more bankruptcy cases within the previous year, there is no automatic stay in effect upon the filing of the new case. The debtor may file a motion with the court to impose the automatic stay within thirty days of the new filing 25

26 Actions to Avoid Transfers to Creditors... and Defenses 26

27 What is a Preference? a transfer of an interest of the debtor in property to or for the benefit of a creditor for or on account of an antecedent debt made while the debtor was insolvent, (6) on or within 90 days (one year for insiders ) before bankruptcy that enables the creditor to receive more than it would receive in a Chapter 7 case if the transfer had not been made 27

28 Common defenses contemporaneous exchange ordinary course of business subsequent new value exception for transfers under $600 in consumer cases transfers under ($5,475) in non-consumer cases Payment arranged through credit counseling 28

29 Contemporaneous Exchange (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange 29

30 Ordinary Course of Business Trustee may not avoid a transfer- to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was (A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or (B) made according to ordinary business terms 30

31 Prior to BAPCPA, the creditor had to prove that the transfer was made in the ordinary course of business or financial affairs of the debtor and creditor and that the transfer was made according to ordinary business terms. BAPCAP changed this and to an or, allowing the creditor to prevail in the preference action if it can establish either of these factors as opposed to establishing both. 31

32 New Value Trustee can not avoid a transfer- that creates a security interest in property acquired by the debtor perfected on or before 30 days after the debtor receives possession of such property to the extent such security interest secures new value that was-- (i) given at or after the signing of a security agreement that contains a description of such property as collateral; (ii) given by or on behalf of the secured party under such agreement; (iii) given to enable the debtor to acquire such property; and (iv) in fact used by the debtor to acquire such property 32

33 Subsequent New Value Trustee can not avoid a transfer- to or for the benefit of a creditor to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor-- (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor 33

34 Payments arranged by credit counseling agencies The trustee may not avoid a transfer if such transfer was made as a part of an alternative repayment schedule between the debtor and any creditor of the debtor created by an approved nonprofit budget and credit counseling agency 34

35 Fraudulent Transfers and Obligations under 11 USC 548 The trustee may avoid any transfer or any obligation of debtor that was made or incurred within 2 years before the petition, if the debtor voluntarily or involuntarily - Made transfer/incurred obligation with actual intent to hinder, delay or defraud or Received less than REV in exchange and Was insolvent at the time or as a result, Engaged or about to engage in business for which the remaining assets would be unreasonably small capital, Intended to incur or believed that the debtor would incur debts beyond ability to pay, or Transfer was to an insider or for benefit of insider not in the ordinary course of business 35

36 Nevada Uniform Fraudulent Transfer Act (NRS Chapter 112) Statute of Limitations: Creditor must bring claim within 4 years after the transfer was made or obligation incurred if proceeding based upon actual intent to defraud; Creditor must bring claim within 1 year if claim is based upon a transfer made to an insider when the debtor was insolvent and the insider had cause to believe the debtor was insolvent. [NRS ] Remedies: Avoidance of transfer or obligation, attachment or garnishment against asset transferred, an injunction against further disposition, appointment of a receiver to take charge of assets, or any other relief the circumstances may require. [NRS ] 36

37 Venue Provisions a trustee in a case under title 11 may commence a proceeding arising in or related to such a case to recover a money judgment of or property worth less than $1,000 or a consumer debt of less than $15,000, or a debt (excluding a consumer debt) against a noninsider of less than $10,000 only in the district court for the district in which the defendant resides 37

38 Discovery in Bankruptcy The Meeting of Creditors 11 USC Section 341 requires the Debtor to appear and answer questions Creditors, any trustee, or the US Trustee may examine the Debtor By prior arrangement, Trustee or UST generally permits you to bring a court reporter Scope is broad, including 38

39 Scope of examination Acts, conduct, or property of the debtor Property or liabilities and financial condition of the debtor Any matter which may affect the administration of the estate Debtor s right to discharge Operation of any business and desirability of its continuance Source of plan payments Any other matter relevant to formulation of a plan 39

40 2004 Examination Same scope as 341 meeting Compel attendance by subpoena (include fees) Subpoena may require production of documents Must be personally served unless party to be examined has appeared in the case Clerk will sign ex parte order on 14 days notice 40

41 Adversary Proceedings A bankruptcy adversary proceeding is equivalent to ordinary litigation Same process- complaint, answer, initial case conference/disclosures; discovery Must timely answer, just like any other lawsuit! 41

42 Chapter 11 Plan Filing. Only the debtor may file a plan for the first 180 days after the date of the order for relief. This exclusivity period may be extended if the debtor can show by a preponderance of evidence the plan will likely be confirmed. Disclosure Statement. Generally, prior to solicitation of votes, debtor must obtain approval of a disclosure statement to provide adequate information regarding the plan sufficient to cast an informed vote 42

43 Classification Type of claim-secured/unsecured/both Classify claims into classes May not unreasonably discriminate Class approves by vote of at least 2/3 in amount and more than ½ in number Impaired unless leave unaltered all legal and equitable rights 43

44 Confirmation Requirements Require impaired consenting class, not counting insiders Creditor may object if receives less than would in liquidation If secured class does not accept, must receive value of secured claim as of confirmation, may be via payments with interest at fair market rate May object to confirmation if junior classes retain property and you are not paid in full 44

45 It s not all bad... Other actions also stayed / fairness of distribution Potential recoveries (especially from insiders) May have trustee to perform watchdog function Financials disclosures required (schedules/statements/monthly operating reports) Opportunity to question debtor (341/2004) In a chapter 11, creditor s professionals paid by debtor s estate BAPCPA intended to require debtors with the ability to do so to repay at least a portion of their debts 45

46 Disclaimer THE FOREGOING INFORMATION IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE, AND SHOULD NOT BE CONSIDERED TO BE, LEGAL ADVICE. NEITHER THE FIRM OF SHEA & CARLYON, LTD. NOR ANY MEMBER OR EMPLOYEE OF THE FIRM IS RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN, OR USE OF, THESE MATERIALS. 46

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