What’s New in Bankruptcy?
Chapter 7 debtor dissolved under State law held responsible for ERISA plan
A company liquidated in bankruptcy and dissolved under state law maintains responsibility for an ERISA plan if it continues to make pay-outs in the company name The 11th Circuit has interpreted ERISA to require such defunct company’s affiliates to back-stop such plan. A timely PBGC take-over would have mitigated this result.Read More
Pre-Bankruptcy Planning can include Removal of Trust Beneficiary
Pre-Bankruptcy planning requires debtors to make sure that their pre-bankruptcy asset transfers are made for equivalent value to avoid being clawed back as fraudulent to creditors. A CA court recently held that a parent’s removal of a beneficiary (soon to be debtor) from a family trust is not a fraudulent transfer.Read More
Chapter 15 Filings as Cross-border Connectors
Chapter 15 allows foreign companies to file US bankruptcy proceedings to protect US assets. Over the past year, filings in Canada, Australia and the UK have spilled over to the US. While each country has its own unique set of laws, these cross-border links demonstrate the truly global nature of insolvency and the need to…Read More
Will Student Debt become dischargeable?
The saga of student debt continues into the new administration. Here’s to hoping that it will be treated like any other debt in bankruptcy in the future, treating Education Department backed debts like any other unsecured debt, and affording fresh starts to all.Read More
Debt of Single Asset Real Estate entity blows Subchapter V Eligibility
A recent bankruptcy court decision has found the debt of an affiliate that is ineligible to file for Subchapter V to be included in the $7.5M threshold for eligibility (and post-CARES Act, a $2.7M threshold). In this case, the affiliate was a single asset real estate entity. This decision appears counterintuitive. Stay tuned for an appeal?Read More
Subchapter V allows Cramdown of Collateral Value
In Pearl Resources, another case of first impression under Subchapter V, a Texas court confirmed a cramdown plan with a reduced collateral value. Parsing a mix of traditional and new chapter 11 provisions, the court permitted a $7.4M replacement lien for the original $35M lien, deeming it sufficient to cover the $1.2M claim, and thus freeing up…Read More
Subchapter V has become a cost-effective bankruptcy lifeline for a business reboot
A group of mid-western businesses comment on their unique ability to reorganize under Subchapter V of the Bankruptcy Code in accordance with its intended goal to allow small business owners to retain control of a reorganizing company. Drafters of the new law effected much needed tweaks to the chapter 11 process, an endeavor that has proved to…Read More
An Individual Chapter 11 Plan must be funded by more than Business Income
In re Patel, a recent CA bankruptcy decision, held that chapter 11’s requirement for individual debtors to pay unsecured creditors from “disposable income,” encompasses income from all sources. Note that this would equally apply in Subchapter V. The Patel Chapter 11 plan listed only motel income which was insufficient to fund a payout to unsecured creditors. While…Read More
A defaulted chapter 13 plan can be extended under the CARES Act
Good news! A New Orleans judge has found the CARES Act to permit a 7 year extension of a chapter 13 plan whose payments were in default prior to enactment of the Act, holding that the currency of payments is irrelevant. In fact, most chapter 13 plans are in a state of default and ultimately…Read More
Is a PA Gaming License property that can be clawed back in bankruptcy?
The Commonwealth of PA was recently permitted to sustain revocation of a debtor’s gaming license and keep the $50M paid per state forfeiture laws, as a license is considered a privilege versus reclaimable property. This is yet another example of the intricacies of pre-bankruptcy planning, as lawyers and debtors collaborate to re-tool with minimal friction.Read More