What is a chapter 11 bankruptcy and how do they work?
June 3, 2012 Leave a comment
A chapter 11 bankruptcy is designed to first protect and then help a business survive and succeed. If a business is struggling under the weight of a tremendous debt then a chapter 11 can be filed to preserve the business. Public policy says that a business is a going concern that employs people and thus should be saved from breakup and destruction.
A chapter 11 can also be filed by an individual instead of a business if that individual has debt that exceeds the debt limits of a chapter 13. This is less common than business chapter 11s but it gives individuals with a great amount of debt an opportunity to file a payback type of bankruptcy if they can’t file a chapter 7.
A chapter 11 business filing will theoretically give a business time to reorganize and develop a plan to pay back the creditors at least partially. The problem is that though many are filed most chapter 11 bankruptcies for small businesses do not work.
If a business is failing then it is unlikely that a suspension of the collection efforts of creditors will save it. There is usually insufficient income generated by the business to pay much of its debts. If the business reaches this point where it needs a chapter 11 then the business model is probably unworkable. Most attorneys will advise their clients to at least consider the possibility of closing the business. In the end most chapter 11s are converted to chapter 7s or they are dismissed.
In addition chapter 11s are very expensive to file. The filing fees are over $1000 and in addition there are administration fees charged by the court. There is a tremendous amount of work for the attorneys to do too and thus large attorney fees are also required. There are also numerous legal documents and motions that must be filed on the first day and then more of these within the next 7 days.
There are also numerous trips to court. Court appearances are necessary to ask the judge for permission to do many things like pay your attorneys. The business becomes the “debtor in possession” after the filing but the business must take out all new bank accounts after the filing is done and it must close all of the old bank accounts. On each account it must be stated that this business is in chapter 11. The debtor in possession can run the business though during the chapter 11.
Then there are the reports. Profit/loss statements must be filed along with balance sheets and monthly operating reports. Keeping business accounts in a chapter 11 is very difficult and must be done correctly. The court must be specially petitioned for permission to pay an accountant and other experts to do this kind of work.
All of this is why chapter 11s work better for a large business than a small one. Most law firms will charge $20,000 at least to do one and the court fees, accountants, and business specialists must be paid are in addition to these fees. Large law firms handling large businesses are the norm in workable chapter 11s.
There is also the problem of the creditors committee that must be set up with a chapter 11. The creditors of the business must be gotten together to approve of the reorganization plan for the business and the reorganization plan must be carefully produced. The reorganization plan is a plan that the business comes up with to both run the business and pay back part of the debts. This plan must then be approved by the creditors committee.
With a small business the formality of a creditors committee may be waived but if there is one or two large creditors they are definitely have something to say. They may be foreclosing on property or want their other assets back or they may want to break up the business. Creditors can even demand that the management of the business be turned over to someone else (instead of the business owner) resulting in you losing control of the day-to-day operations of the business.
There are advantages to a chapter 11 like it does not have a five-year limitation to paying back creditors like a chapter 13. Also you may be forced into one if you have more debt than is allowed in a chapter 13. (And remember that individuals can file a chapter 11 bankruptcy in cases where their debt exceeds 13 limits and where a chapter 7 will not work).
But remember the purpose of the 11 is to turn around a business and make it work. If the judge thinks you are using it for another purpose like stalling the paying of creditors or for stalling a foreclosure then he could move for sanctions, move to dismiss the case, and even lift the automatic stay.
In a SARE cases (single asset real estate) it is common that the debtor/business filed when a foreclosure was pending. The creditor/mortgage holder will then move to lift the stay and sell the property unless the debtor makes payments or files a “workable” plan. Both of these things the debtor may not be able to do. Therefore in these cases the lifting of the stay is often allowed and the property is then sold at foreclosure.
You can see from this short blog on chapter 11s that they are expensive, time-consuming, extremely complicated, and prone to dismissal or failure. The good news it that there are alternatives to these 11s. Contact a competent bankruptcy attorney to discuss your options if you are considering filing a chapter 11 bankruptcy.
I am a San Diego bankruptcy attorney. For further questions please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com. Or call my office for a free consultation about a chapter 11 bankruptcy or for any other advice about bankruptcy or debt at (619) 702-5015. Call now for free credit report and analysis! For a free e-book on “13 things to do to prepare for your bankruptcy filing” please e-mail me at email@example.com.