Category Archives: Business Bankruptcy

Is Your Business Failing?

The pandemic has been tough for everyone, but it has been brutal for a lot of small businesses. If your numbers aren’t coming back, and you don’t know how much longer you can hold on – here are some things to think about.

First, if a CPA does your taxes, call. They know your numbers, they know your systems, they know a lot about running a business, and they can be objective when you can’t.

Second, before you raid your retirement accounts, think long and hard about how much you want to risk for your business. Too often I see people who have emptied their retirement accounts to pay some bills, instead of pulling the plug and filing for bankruptcy; and a year later they are in my office to file for bankruptcy with the same stack of bills all over again, only this time with no retirement savings. Remember, in Oklahoma, as long as you pay your taxes, no one can take tax qualified retirement accounts from you – creditors can’t, even if they sue you and take a judgment, and a Bankruptcy Trustee can’t.

Third, put together a total list of liabilities – for you and for the business. Be as brutally honest as possible about which accounts you are personally liable for and which ones you aren’t.

Fourth, picture where you want to be in five years. Do you have a path to get there?

Finally, call a Bankruptcy lawyer, feel out whether or not you should consider a Chapter 11 filing to restructure the business. Too often small business owners make that decision too late. A Chapter 11 filing, even the new Sub Chapter V is expensive; and there has to be enough business left to save.

The one thing I can promise you is that there isn’t a bankruptcy lawyer in this Country who isn’t sympathetic right now. The pandemic hasn’t been good for us either. So, don’t be afraid or embarrassed. Just call.

Elaine

Why Your Business Probably Won’t File for Bankruptcy

Chapter 7 is the most commonly filed chapter of bankruptcy — but it is very rarely filed by a Corporation, Partnership or LLC.  We can all name lots of businesses that have filed Chapter 11 bankruptcy.  Traditionally, that has been a large, expensive, complex reorganization.  Exxon, most of the Airlines, General Motors, Sears, J.Crew.  It is a long list.  I will bet, however, that you can’t name a single Corporation that has filed a Chapter 7 Bankruptcy.

The reason for that is actually quite simple.  Lots of business owners would love to file a Chapter 7 for their wholly owned LLC and walk away from the business debt — except they can’t.  You see only an individual (that means a human being) can get a discharge in a Chapter 7 bankruptcy.  That means that if a corporation or an LLC files a Chapter 7 bankruptcy, it gets to turn over all of its assets to the Trustee to administer for the benefit of its creditors, but it doesn’t get out of its debt.  Now, it comes out of the bankruptcy with no assets with which to pay any of its bills — but it still legally owes the money.  So, you spend a lot of money, you turnover the business assets to the Trustee, you expose the owners and managers of the business to potential liability — and get absolutely nothing in return.  Not generally a great plan.

Instead, what generally happens, is that the business owners liquidate the assets themselves.  They have to stay within certain legal parameters, but they do have some control over how the assets are liquidated and how the proceeds are distributed.  Also, they can pay themselves a reasonable amount of money for doing it.  Then, they shut down the Corporation or the LLC.  Of course, since most small business debt is guaranteed by the owners (one way or another) the owners may then need to file their own Chapter 7 bankruptcy, but they are eligible for a discharge.  Also, this doesn’t mean that the owners inherit the unpaid business debts. If the owners weren’t originally liable for the debt, they don’t become liable for it.  It is just rare for small businesses to incur any significant debt without a personal guaranty from someone.

Of course, since February of 2020 there is now a viable small business reorganization subchapter.  So, it is now much more viable to reorganize a small business in a bankruptcy, if remaining in business is a viable option.  If it isn’t, however, it is rare to shut down a small business in a Chapter 7 Bankruptcy.  There are better ways to deal with the business entity outside of bankruptcy then inside.

Elaine 

Buying Time to Stay Afloat

The most valuable tool for saving a business in turbulent times is frequently — time.  I read an article yesterday explaining why oil will be $100 a barrel by the end of the year — that is less than eight months from now.  Whether that prediction is true or not, oil isn’t likely to go a whole lot lower.  So, how do you hang on until the world changes again?

You know where your cash flow goes.  How much more profitable would you be, or just how much longer could you last, if you could change where your cash flow goes?

If you could not pay the debt — at least for a while?  If you could break leases without penalty?  If you could change all the things we are trained to believe we can’t change?  Well, except for taxes.  Let’s not get carried away here.

How much time would you need to redirect your company’s resources?  Can your welders make something else?  Can your trucks move something else?  Can your people do something else?

If you need time, if you need to drastically remodel your cash flow, if you need to redesign your business or just your business model — do the unthinkable.  Call a Bankruptcy lawyer.  We don’t just end businesses.  We can help reinvent them.

Elaine

 

Small Business Struggles

Despite all the dollar signs flying around in the press, small businesses in this Country are in trouble — pretty much all of them.  Yea, I know about the SBA programs, PPP and EIDL and forgiveable advances — yea, I know.  Small businesses are still in real trouble.  Closures, oil prices, reduced sales, reduced interest, changes in customer habits, ill employees, increased insurance costs.  Small business are just in trouble, and there is no magic wand that is going to fix it all on May 1 or June 1 or even next fall.

I am looking at three strategies.  First, managing cash flow.  Deferring payments isn’t a cure, but it buys time to refocus.  Reducing expenses, cutting deals with lenders.  It all  helps, even if all it does is buy time.  Second, now is the time to confront the fundamentals.  Can this business be profitable in the new world in which we find ourselves?  Can it lure its customers back?  Does its community have the cash flow to buy what it is selling — particularly a problem in the oil patch, right now.  Third, if the business can restructure its debt, reduce interest rates, change payment terms, eliminate a lot of the unsecured debt; does that make a critical difference?

If the answer to that last question is yes, you need to know about the brand new Subchapter V in the Bankruptcy Code’s Chapter 11.  There are some amazing new tools to restructure small businesses that just became available in February, 2020.  It is going to make the difference for a lot of businesses between having a future and not.  The statute was passed last Fall, it went into effect in February, 2020.  Nobody knows what all it can do or not do just yet, but it is a game changer for small businesses caught with too much debt in a sudden downturn.

More on that in the next few days.

Elaine

The Paycheck Protection Program and Bankruptcy

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

The Bankruptcy Courts Remain Open for Business — Sort Of

The Bankruptcy Courts — even the Oklahoma Bankruptcy courts remain open for business — sort of — despite the order entered Friday afternoon by the Oklahoma Supreme Court basically closing all Oklahoma State courts until May 15, 2020 except for emergency matters in response to the COVID-19 pandemic.

First of all, the Bankruptcy courts are part of the Federal court system, not the State court system.  So, this order from the Oklahoma Supreme Court does not effect them in the least.  That does not mean that the Federal Court system, including the Bankruptcy courts, are insensitive to the current pandemic and changes in daily life.

What it does mean is that the Federal court system, including the Bankruptcy courts, are much better positioned to respond to current events.  Essentially all Federal courts went to electronic systems years ago.   The Bankruptcy Court for the Western District of Oklahoma has been an all electronic courthouse since 2006.  What that means is that for most purposes the Courthouse doesn’t accept paper.  All filings, including new cases, are done electronically.  Instead of walking into the Court Clerk’s office, standing in line with a bunch of other germy lawyers, then coming face to face with a Deputy Court Clerk to file pleadings, my computer dials up the Court’s computer and they exchange files — quickly, efficiently and antiseptically.  Filing fees are likewise done electronically.

Now, that doesn’t mean that there haven’t had to be some hasty changes at the Bankruptcy Courts.  Traditionally (which means prior to last week) most courts required that all pleadings (like a Bankruptcy Petition) be signed in the lawyer or his staff’s presence, and the lawyer had to retain the original signature on behalf of the court clerk’s office.  More and more Bankruptcy courts around the Country have been changing those rules in the last week or so.  The Western District of Oklahoma, which includes the Oklahoma City metro area and all parts west, entered an order on Thursday March 26, 2020 allowing for the execution of pleadings with electronic signatures.

Traditionally (again that means prior to last week) First Meetings of Creditors (a/k/a 341 hearings) were held in person, at the courthouse in a packed meeting room.  Procedures have come down very recently for those to now be held telephonically.  Hearing dockets are likewise being conducted telephonically.  Now, large contested hearings with witnesses and exhibits and arguments and stuff?  Good luck getting one of those set; but this too shall be accommodated eventually.

Hurricane Katrina really exposed the greater ability of the Federal system to adapt to disaster.  You would think that in the 15 years since then, State courts would have learned a thing or two from their Federal peers.  You would be wrong.

Elaine

Keep in Touch with your Lawyer!

It is even more important than usual during Coronavirus days to keep in touch with your lawyer — even if all businesses in your area are closed.  Sure, it is always important for all kinds of mundane reasons, like a change of address; but now those worries that are keeping you awake at night?  Call or email your lawyer.  You never know what tricks your lawyer may have stuck up a sleeve, and even if all businesses are closed, lawyers are pretty good about keeping an eye on email.  You might also call the office number.  It might be answered, and it might have a recording giving you information on how to get in touch.

First of all, your lawyer should be keeping a close eye on the various Coronavirus relief bills passing through Congress.  Second, your lawyer should have copies of the actual administrative orders from your Mayor or your Governor closing businesses, etc.  Your lawyer can tell you if they apply to you and how they are or can be enforced.  Your lawyer should also have a feel for employment law issues that may be effecting you, whether you are being told to work or not to work.

A bankruptcy lawyer can also help you with deciding which bills to pay and which not to when money gets really tight.

If you are in a bankruptcy, your lawyer can help you with issues like the reach of the automatic stay and the discharge injunction — that includes helping you shut down the phone calls if some creditor decides bankruptcy doesn’t really apply to them.  If you are in a Chapter 13 plan your lawyer can explain to you what remedies are available to you if you can’t make your plan payments or you need to change your plan terms.

Your  lawyer can also explain to you what court activity is ongoing in your area — are Sheriff’s sales still being held, are foreclosure cases being filed and heard, what about garnishments and collection cases?

Do not just sit at home and make yourself sick with worry.  Lawyers are trained problem solvers.  Sure, we can’t solve all of them, but we can try.

Elaine

New Small Business Option

Last Fall Congress passed a new subchapter of Chapter 11, Subchapter V which is a new option for small businesses.  It doesn’t go into effect until later this month, so no one really knows how it is going to work yet; but it appears to be a lot more accessible for really small business owner/debtors.

One of the many problems of a traditional chapter 11 bankruptcy filing is not just the extraordinary expense, but the amount of reports and records that had to be maintained by the debtor.  It looks like the new Subchapter V will be a lot more accessible for businesses that don’t have an in-house CFO — or even an in-house accounting office.

It will be a few more weeks before it goes into effect, and it will be interesting to see how long after that before someone files the first case, but I think all bankruptcy practitioners are looking forward to seeing if this is a real, practical solution for the sole proprietor or the business with a handful of employees to successfully restructure debt and recover from a rough patch.

As is always the case, though, all reorganization bankruptcies require that there be enough business left to reorganize.   Too often, small business owners wait too long to call a bankruptcy lawyer.

Elaine

Can I Get Sued in a Bankruptcy?

Most people think of filing for bankruptcy to stop lawsuits, but it is possible to get sued in a bankruptcy – or to do the suing. I’ve written recently about people who have been sued in the GMX Resources bankruptcy for fraudulent transfers for receiving dividends on preferred stock and people who have been sued for the recovery of what are called preferential transfers; but there is a lot more litigation than just this going on at the bankruptcy court.

For most people who file for bankruptcy the process looks a lot more administrative than it does judicial. Most people who file never see their Judge, for instance. No, the person who presides over the First Meeting of Creditors is NOT a Judge. Some standard rules of thumb – if there is no court room, no black robe and no standing when the person enters and leaves the room – you are probably not dealing with a Federal Bankruptcy Judge.

Just because most debtors never see them, doesn’t mean that the Judges aren’t staying busy. Bankruptcy litigation comes in two flavors: Adversary Proceedings and Contested Matters. An Adversary Proceeding is essentially a full-scale lawsuit filed within the context of a Bankruptcy case. It begins with a Complaint and a Summons, followed by an Answer, discovery, motions, evidentiary hearings and finally concludes with a trial.

Adversary Proceedings are required to determine the nature or extent of a lien, revoke a discharge or plan confirmation, object to a discharge, recover property of the estate, provide injunctive relief, declaratory relief or subrogation; and certain sales of property must be approved by an Adversary. Essentially anything else in the Bankruptcy Court where two people are arguing or disagreeing qualifies as a Contested Matter, which is quite useful; because in a contested matter you have full access to discovery and other litigation tools that are generally considered part of a lawsuit rather than just a motion hearing.

Some things can be the subject of either an Adversary Proceeding or a Contested Matter. A violation of the automatic stay, for instance, may be brought by either procedure. A violation of the discharge, however, generally is brought by a Contempt Citation, which is a Contested Matter.

So, what is the difference? Adversary Proceedings have greater procedural and due process protections built into them. They must be served like a lawsuit. They have a longer answer time. They have more structure to them which helps to manage greater complexity, a larger number of parties, more witnesses, more complicated issues. Contested Matters are procedurally more flexible. A Contested Matter may be a simple motion – motion with brief filed, fourteen days later a response with brief is filed, hearing set and heard generally in an hour or less. Of course, a Contested Matter may also have a long period of discovery, with related motions filed and culminate in a day or multi-day trial with lots of witnesses and exhibits. So, Contested Matters are inherently more flexible. The Court is expected to adapt procedures to fit the matter at hand. Adversaries are expected to be complex issues and so are treated that way automatically.

For something like a violation of the automatic stay, which may be brought in either form, I consider the following in making my choice: has the defendant appeared in the case, otherwise, the formal service procedures of the Adversary Proceeding will afford greater due process protections. How many facts will be in dispute? What is the nature of my client’s damages? How much post petition discovery will I want? How much time will I want to prepare the case? Even after considering all of these things, I may still file a case and have the Judge adapt the procedures for it as if it were the other. Judges can do that, and they will if they think it is necessary either for due process considerations, to protect the rights of a party or to make the case easier to manage.

So, there you have it. Bankruptcy lawyers may not empanel a jury too often (or ever), but they are still litigators.

Elaine

A Friend Tried a Debt Management Plan – It Didn’t Work

There are a ton of debt management companies out there that will promise to consolidate your debt, or reduce your debt or give you ONE, LOW MONTHLY PAYMENT! All too often, they don’t work. Bankruptcy does, and there are really good reasons for that.

Remember two things. First, if it sounds too good to be true, it probably is; and second, there is a huge difference between a contract between you and a private company and Federal Law enforceable by the U.S. Court system with the assistance, if necessary, of the U.S. Marshals.

If you have tried a debt management plan or consolidation plan, one of those places that promises that it is every bit as good as a bankruptcy; only to find that the phone kept ringing, and the lawsuits kept coming? Well, first of all, actually read your contract. My guess is that if you sit down and actually read all the small print, you won’t like what you find. It also won’t promise results or relief. The problem with debt management or consolidation plans is that your creditors are not required to accept a deal that you cut with someone else. Think about it, if your creditors decline to go along with the plan, what is the debt management company going to do about it?

If creditors decide that the Bankruptcy Code doesn’t apply to them, the Bankruptcy Court’s orders are punishable by contempt of court. You won’t find that in the small print of a debt management contract.

Now, there are people who think that a Bankruptcy filing is too good to be true. It really isn’t for a variety of reasons. First of all, it is a public proceeding. Now, that doesn’t mean that your First Meeting of Creditors will be held in the middle of the local shopping mall. It does mean that your court file is a public record. Second, bankruptcy is an admission of failure. It hurts. It is hard to accept. It is hard to do. The for profit debt management companies know this. They play off of it. That is why people pay them and want to believe in them. Third, bankruptcy is about the worst thing you can do to your credit report (although, if you police your credit report post discharge, it won’t be nearly as bad as you expect). Finally, there is really good public policy in favor of our bankruptcy system.

One of many things that separates our economic system from most of the world is that we understand that not only does the freedom to succeed include the freedom to fail, the freedom to fail is necessary for the freedom to succeed. If you can’t afford to fail, you can’t afford to try. This makes more sense in a business context, but the consumer context is that someone with more debt than he can pay is not a contributing member of the economy. He is not taking care of himself and his kids. He isn’t saving for retirement and college. He isn’t out buying stuff, if he is too consumed with trying to pay for the past. Bankruptcy fixes this. That is serious economic policy that was recognized by our founding fathers, which is why the need for a Bankruptcy Code is one of the few areas of law specifically mentioned in the U.S. Constitution.

So, when a private company tells you that they are just as good as the United States Court system. Ask yourself, why you want to believe that.

Then, either contact Consumer Credit Counseling Services, which is one of the few legitimate debt consolidation companies that is non-profit and won’t misrepresent what they can and can’t do; or, admit that if you have too much debt to pay, you have too much to pay – consolidated or otherwise.

Elaine