BANKRUPTCY LAW MANUAL

Transcription

1 BANKRUPTCY LAW MANUAL FIFTH EDITION THE HONORABLE NANCY C. DREHER CHIEF UNITED STATES BANKRUPTCY JUDGE, DISTRICT OF MINNESOTA MEMBER, UNITED STATES EIGHTH CIRCUIT BANKRUPTCY APPELLATE PANEL ( ) EDITOR-IN-CHIEF, BANKRUPTCY SERVICE CURRENT AWARENESS ALERT FELLOW, AMERICAN COLLEGE OF BANKRUPTCY FORMER EDITOR-IN-CHIEF, AMERICAN BANKRUPTCY LAW JOURNAL THE HONORABLE JOAN N. FEENEY UNITED STATES BANKRUPTCY JUDGE, DISTRICT OF MASSACHUSETTS MEMBER, UNITED STATES FIRST CIRCUIT BANKRUPTCY APPELLATE PANEL FELLOW, AMERICAN COLLEGE OF BANKRUPTCY V0LBME2 Issued in JuW6 WEST,, A Thomson Reuters business Mat # For Customer Assistance Call

2 Table of Contents CHAPTER 10. CHAPTER 7 OF THE BANKRUPTCY CODE: LIQUIDATION 10:1 A short history of Chapter 7 10:2 Prefiling considerations Whether and when to file 10:3 Advantages and disadvantages of seeking relief under Chapter 7 10:4 Prefiling due diligence 10:5 Eligibility to file a Chapter 7 10:6 Retention and payment of the Chapter 7 attorney 10:7 Commencing the Chapter 7 case The statement of intention 10:8 The automatic stay 10:9 The Chapter 7 trustee 10:10 Appointment 10:11 Election of the Chapter 7 trustee 10:12 Successor Chapter 7 trustee 10:13 Duties of the Chapter 7 trustee 10:14 Creditors' committee in Chapter 7 10:15 Conversion 10:16 Dismissal generally 10:17 Dismissal for cause under 707(a) 10:18 Dismissal for abuse and for presumptive abuse under 707(b) 10:19 Authorization to operate the business 10:20 Redemption 10:21 Rights of partnership in a Chapter 7 case against general partners 10:22 Avoidance of and treatment of certain liens in Chapter 7 10:23 Disposition of certain property 10:24 Distribution to creditors 10:25 Discharge 10:26 Procedure for objecting to discharge 10:27 Grounds for denial of discharge 10:28 Debtor not an individual 10:29 Fraudulent transfer or concealment of property 10:30 Inadequate records 10:31 False oath and other bankruptcy crimes in the case 10:32 Failure to explain loss of assets 10:33 Wrongful acts within the case 10:34 Wrongful acts within another case 10:35 Discharge in prior Chapter 7 or Chapter 11 case

3 BANKRUPTCY LAW MANUAL, 5TH EDITION 10:36 Discharge in prior Chapter 12 or 13 case 10:37 Court-approved waiver of discharge 10:38 Failure to complete the debtor education course 10:39 Certain criminal activities 10:40 Revocation of discharge CHAPTER 11. ADJUSTMENTS OF DEBTS OF A FAMILY FARMER OR FISHERMAN WITH REGULAR INCOME 11:1 What is Chapter 12? 11:2 Structure of Chapter 12 11:3 Who may file a Chapter 12 petition? 11:4 Who may file a Chapter 12 petition Family farmers 11:5 Family fishermen 11:6 The Chapter 12 case Generally 11:7 Commencing a Chapter 12 case 11:8 Automatic stay and the protection of codebtors 11:9 Property of the estate 11:10 Dismissal or conversion of a Chapter 12 case 11:11 The plan and its confirmation 11:12 Payments under the plan 11:13 Discharge 11:14 Trustees 11:15 The debtor in possession 11:16 Adequate protection 11:17 Special tax provisions CHAPTER 11A. CHAPTER 11 OF THE BANKRUPTCY CODE: REORGANIZATION 11A:1 Introduction and overview 11A:2 History 11 A: 3 Overview and structure of Chapter 11 11A:4 Prefiling considerations 11A:5 Eligibility for relief under Chapter 11 11A:6 Commencing a Chapter 11 case 11 A: 7 Parties in interest and professionals 11A:8 The debtor in possession 11A:9 The meeting of creditors 11A.10 The U.S. Trustee 11A:11 Creditors' committees and equity security holders' committees 11 A: 12 Chapter 11 trustees 11 A: 13 Examiners VI

4 TABLE OF CONTENTS HA: 14 The right of other parties to be heard; special interest parties HA: 15 Retention, employment and compensation of professionals HA: 16 First day motions and orders 11A:17 Typical first day motions and orders Administrative requests HA: 18 Operational requests HA:19 First day motions and orders Interim approval of emergency cash collateral and financing requests 11A:2O Use of cash collateral in general HA:21 Obtaining credit and financing; unsecured and secured loans; final orders 11A:22 Legal terms granting protections for lenders in cash collateral and financing orders 11A:23 Continued operations in a Chapter 11 case In general 11A:24 Transactions and conduct in and out of the ordinary course 11A:25 Payment of prepetition claims and the doctrine of necessity 11A:26 Claims in general; allowance of claims and interests; claims trading 11A:27 Administrative expenses HA:28 Administrative expenses; executive compensation 11A.29 Protections for seller's right to reclaim goods; administrative expense for goods sold immediately before filing 11A:3O Secured claims; interest, fees and charges; surcharge of collateral HA:31 Secured, partially secured and nonrecourse claims Special protections 11A:32 Claims disallowance, equitable subordination and recharacterization of claims 11A:33 Automatic stay; relief from stay issues in Chapter 11 cases HA:34 Property of the estate issues in Chapter 11 HA:35 Executory contracts and unexpired leases 11A:36 Rejection or modification of collective bargaining agreements HA: 37 Modification of contracts providing insurance benefits to retired employees 11A.38 Sales of assets in Chapter 11 cases HA:39 Small business Chapter 11 cases HA:40 Single asset real estate cases HA:41 Individual Chapter 11 cases HA:42 Asbestos cases HA:43 Conversion and dismissal 11A:44 Substantive consolidation; contrasted with joint administration Vll

5 BANKRUPTCY LAW MANUAL, 5TH EDITION 11A:45 Proposing the Chapter 11 plan; the debtor's exclusivity period 11A:46 Prepackaged plans 11A.-47 Plan contents; mandatory contrasted with optional provisions in general 11A:48 Mandatory plan provisions; designation of classes 11A:49 Contents of the plan; mandatory provisions; specification of unimpaired claims and interests 11A:5O Proposing the plan; mandatory provisions; specification of the treatment of impaired classes 11A.51 Proposing the reorganization plan Provisions that must be in the plan Equal treatment for class members 11A:52 Adequate means for implementation HA: 53 Corporate provisions HA: 54 Optional plan provisions 11A:55 Optional plan provisions; executory contracts 11A:56 Optional plan provisions; settlement of claims 11A-.57 Optional provisions; sale of property and distribution of proceeds 11A:58 Optional provisions; injunctions favoring nondebtors and third party releases 11A:59 The disclosure statement; adequate information; approval by the court for distribution HA:60 Voting on the plan; acceptance and rejection 11A.61 Modification of the plan prior to confirmation HA:62 Confirmation of the plan; procedure; alternative methods of achieving confirmation HA:63 Confirmation of the plan Requirements for confirmation; acceptance method 11A:64 Requirements for confirmation; the cramdown method 11A:65 Fair and equitable as to class of secured creditors 11A:66 Fair and equitable treatment of unsecured claims and equity interests; absolute priority rule; new value plans; "gift" plans 11A.67 The effect of confirmation; the Chapter 11 discharge HA:68 Challenges to the order of confirmation HA:69 Postconfirmation modification of the plan HA: 70 Implementation of the confirmed plan; postconfirmation jurisdiction HA: 71 Exemption from securities laws and transfer taxes 11A:72 Revocation of confirmation order HA: 73 Taxation of the debtor in a reorganization case CHAPTER 12. ALTERNATIVE INSOLVENCY PROCEEDINGS 12:1 Available alternatives for the insolvent debtor vni

6 TABLE OF CONTENTS 12:2 The statutory assignment for the benefit of creditors 12:3 The common law assignment or deed of trust 12:4 Noncomplying assignments declared void 12:5 Noncomplying assignments upheld 12:6 Assignments in the various states and territories 12:7 New York type 12:8 Texas and Virginia type statute and discharge question 12:9 Georgia type 12:10 Idaho type 12:11 Shortcomings of state assignment proceedings Lack of adequate court supervision 12:12 Inability to obtain discharge 12:13 Lack of uniformity Conflict of laws 12:14 Which proceeding is less expensive? 12:15 Judicial and nonjudicial corporate dissolution proceedings 12:16 Conclusion CHAPTER 13. CHAPTER 13 OF THE BANKRUPTCY CODE: DEBT ADJUSTMENT FOR INDIVIDUALS WITH REGULAR INCOME 13:1 A brief history of Chapter 13 13:2 Prefiling considerations Whether and when to file 13:3 Advantages and disadvantages of seeking relief under Chapter 13 13:4 Prefiling due diligence Getting the information from the debtor 13:5 The unique nature of Chapter 13 practice 13:6 Eligibility to commence a Chapter 13 case Who may be a Chapter 13 debtor 13:7 Commencing the Chapter 13 case 13:8 The automatic stay and the codebtor stay 13:9 The Chapter 13 trustee 13:10 Duties, rights, and powers of the Chapter 13 debtor 13:11 Retention and payment of Chapter 13 debtor's attorney 13:12 Special issues relating to proofs of claim in Chapter 13 13:13 Property of the Chapter 13 estate 13:14 Conversion or dismissal at the request of the debtor 13:15 Conversion or dismissal for cause 13:16 Conversion to Chapter 11 13:17 Conversion to Chapter 12 13:18 The Chapter 13 plan 13:19 Mandatory and prohibited plan provisions 13:20 Plan duration IX

7 BANKRUPTCY LAW MANUAL, 5TH EDITION 13:21 Optional provisions 13:22 13:23 Classification of claims Modifying rights of secured and unsecured creditors 13:24 Curing or waiving default 13:25 Concurrent payments of secured, unsecured, and priority claims 13:26 Curing defaults and maintaining payments of long-term debts 13:27 Payment of postpetition claims 13:28 Executory contracts and unexpired leases 13:29 Sales of assets in Chapter 13 13:30 13:31 Vesting of property Payment of interest on nondischargeable debt 13:32 Modification of the plan before confirmation 13:33 Plan confirmation: the confirmation hearing 13:34 Confirmation of the Chapter 13 plan 13:35 Compliance with the Code 13:36 Payment of fees and charges 13:37 Good faith plan proposal 13:38 Best interests of creditors 13:39 Treatment of secured claims 13:40 Feasibility 13:41 Domestic support obligations current 13:42 Tax returns current 13:43 13:44 Disposable income standard "Best efforts" test Effect of confirmation 13:45 Plan payments 13:46 The Chapter 13 discharge 13:47 Scope of discharge upon full performance of plan 13:48 Scope of discharge without full performance 13:49 Revocation of discharge 13:50 Postconfirmation modification 13:51 Revocation of confirmation order 13:52 Postconfirmation financial reporting CHAPTER 14. THE INVOLUNTARY BANKRUPTCY CASE 14:1 Introduction 14:2 Prefiling considerations; alternatives to involuntary bankruptcy 14:3 Involuntary Chapter 7 petitions 14:4 Involuntary Chapter 11 petitions 14:5 Against an individual 14:6 Debtors eligible for involuntary bankruptcy

8 TABLE OF CONTENTS 14:7 Debtors not eligible for involuntary bankruptcy 14:8 Petitioning creditors Generally 14:9 Requisite number of petitioning creditors 14:10 Amount and character of claims of petitioning creditors 14:11 Special rules with respect to partnerships 14:12 Special rules with respect to foreign proceedings 14:13 Joinder of petitioning creditors after filing 14:14 Grounds for relief Historical background 14:15 General failure to pay debts as they become due 14:16 Appointment of a custodian 14:17 Procedure 14:18 The petition 14:19 Service of the summons and petition 14:20 Dismissal: by petitioning creditors, by consent, or for want of prosecution 14:21 Dismissal: abstention 14:22 Dismissal: substantive reasons 14:23 Contesting the involuntary petition by motion or answer 14:24 The "gap period" 14:25 Debtor's operations and other issues arising under the "gap period" 14:26 Appointment of an interim trustee in a Chapter 7 case 14:27 Trial and the order for relief 14:28 Document filing requirements 14:29 Meeting of creditors 14:30 Joint petitions, joint administration, and consolidation 14:31 Allowance of expenses to petitioning creditors as priority claim 14:32 Liability of petitioning creditors for wrongful involuntary petitions 14:33 Additional protection for individual involuntary debtors False statements and protection of credit information 14:34 Conversion of involuntary case to another Chapter Table of Laws and Rules Table of Cases Index XI