The SBA has a really amazing Corona virus relief program, the Paycheck Protection Program.   It is called a loan program, but it appears to be intended as grants.  Basically, the SBA will give small businesses money to make payroll for two months.  It looks pretty sweet.

There is one problem.  One of the questions on the application is:

Is the Applicant or an owner of the Applicant presently suspended, debarred, proposed for debarment, declared ineligible, voluntarily excluded from participation in this transaction by any Federal department or agency, or presently involved in any bankruptcy?  (Emphasis added).

Ignoring the obvious, which is what the heck does most of this even mean?  Declared ineligible by whom?  Disbarment?  I mean, a lot of lawyers are applying for this; but not that many.  Suspended by a Federal department or agency?  Suspended from what? I’m sorry, but nothing about this question really makes sense.  So, I suppose I shouldn’t be surprised to see this bankruptcy language tacked on to the end.

So, what the heck does “presently involved in any bankruptcy” mean, anyway?  I have no clue.  None.

Taken literally, this would exclude every business who is listed as a creditor in anybody’s bankruptcy.  Somehow, I don’t think that is what it means.  If you check the Statute this may mean that the debtor cannot be a debtor in possession in a bankruptcy.  For all intents and purposes that means the Debtor cannot be in a Chapter 11 reorganization, but the question on the loan application is broader than that.  Oh, and the application says on its face, that answering yes to this question means that your loan will not be approved.  So, getting comfortable with what you think it means might be important.

Regardless of what the statute is supposed to say, or what it means or what the question means; the consensus among lawyers I have discussed this with is that if the business, or the owner of the business, is a debtor in any chapter of bankruptcy at the time a PPP application is completed, odds are very good that the application will be denied out of hand.

So, now what?

An applicant who is a debtor in a chapter 7 or chapter 11 is probably out of luck.  There is no right to dismiss a chapter 7, and if you are in a chapter 11, dismissing it so that you can get two months payroll out of the SBA is almost certainly not a good idea.

The real issue is if the applicant (or the owner of the applicant) is a debtor in a chapter 13 bankruptcy.  In that case it should be possible to dismiss the chapter 13, collect the PPP, spend the PPP on approved expenses, apply for forgiveness of the amount spent on appropriate expenses, and then refile a new Chapter 13 in order to finish out your plan of reorganization.  How much time this will take depends in large part on the local rules for your court.  However, if the money is worth it to you, talk to your lawyer.  You may be able to get a dismissal in a few days.

Elaine