RESOURCE FOR EDUCATION ADVOCACY COMMUNICATION AND HOUSING Bankruptcy Filing

RESOURCE FOR EDUCATION ADVOCACY COMMUNICATION AND HOUSING Bankruptcy Docket Header

What is the BankruptcyObserver Database?

All bankruptcy reporting services in the United States are based on data initially published on PACER. BankruptcyObserver actively monitors all 95 US bankruptcy courts for newly filed bankruptcy cases and newly added bankruptcy docket entries, adding new bankruptcy data hourly. BankruptcyObserver's database of bankruptcy information includes all bankruptcies filed since 2005 (and many cases from before this date) which amounts to millions of bankruptcy cases and hundreds of millions of bankruptcy docket entries.

Anyone who has tried accessing bankruptcy data using PACER will attest to the fact that the service is not easy to use. There are nearly one hundred separate servers that might hold the data that you need and the forms you can use to query the data are very limiting. BankruptcyObserver makes the process of finding and monitoring bankruptcy cases easy. We have one database and we make the data easily accessible through an easy-to-use online interface. We also keep the data up to date, updating the bankruptcy cases every night and alerting subscribers to any changes every weekday (including holidays).

BankruptcyObserver offers the option of subscribing to monitor a single bankruptcy case or subscribing to access the entire bankruptcy database. Daily emails are provided updating subscribers on activities in any cases that they are monitoring and on new bankruptcy case filings.

What is a Chapter 11 Bankruptcy? What to Expect from a Chapter 11 Bankruptcy?

Bankruptcies in the United States are governed by federal rather than state law. This includes in small and individual bankruptcies. Anyone declaring bankruptcy files with a federal court in a region where the person or entity has some rational for association. (For organizations this reasoning behind choosing a particular bankruptcy court can become rather stretched. For example a company called Pacific Lumber which owned 210,000 acres of forest land in California, filed bankruptcy in Corpus Christi, Texas. This action has been derided as "venue shopping". The courts that have benefited the most from this behavior are the bankruptcy courts in Delaware, the Southern District of New York, and the Southern District of Texas. Joe Biden is infamous for aggressively protecting company's rights to venue shop as it favors his home state district.) Bankruptcy and the rights and rules related to bankruptcies appear in Title 11 of the United States Code, beginning at 11 U.S.C 101.

Typically when looking at bankruptcy, the first question to consider is what type of bankruptcy was filed. Types are typically called "chapters" because they correspond to specific chapters of the code inside of the Title 11. Strangely the Code is not like a book, that is there are some missing chapters. (These were probably removed by Congress in subsequent legislation?) So, when you say that this is a Chapter 11 bankruptcy, you mean that the bankruptcy follows the procedures outlined in chapter 11 of Title 11 of the U.S. Code, as amended. It's important to note the "as amended" because there have been several major changes throughout the years.

Chapter 11 is a form of bankruptcy that involves a reorganization of a debtor’s business affairs, debts, and assets, and for that reason is known as "reorganization" bankruptcy. It is available to individuals and businesses. In contrast to chapter 7, the debtor remains in control of business operations under chapter 11 and doesn’t sell off all of its assets. What chapter 11 does is allow a business to come out of bankruptcy as a healthy business. Businesses will attempt to change the terms on debts, like interest rates and values of payments.

Chapter 11 bankruptcy is the most complex of all bankruptcy cases. It is also usually the most expensive form of a bankruptcy proceeding. During a Chapter 11 proceeding, the court will help a business restructure its debts and obligations. In most cases, the firm remains open and operating. Many large U.S. companies file for Chapter 11 bankruptcy and stay afloat. Such businesses include automobile giant General Motors, the airline United Airlines, retail outlet K-mart, and thousands of other corporations of all sizes. Corporations, partnerships, and limited liability companies (LLCs) usually file Chapter 11, but in rare cases, individuals with a lot of debt who do not qualify for Chapter 7 or 13 may be eligible for Chapter 11.

A business in the midst of filing Chapter 11 may continue to operate. In most cases the debtor, called a “debtor in possession,” runs the business as usual. However, in cases involving fraud, dishonesty, or gross incompetence, a court-appointed trustee steps in to run the company throughout the entire bankruptcy proceedings. The business is not able to make some decisions without the permission of the courts. These include the sale of assets, other than inventory, starting or terminating a rental agreement, and stopping or expanding business operations. The court also has control over decisions related to retaining and paying attorneys and entering contracts with vendors and unions. Finally, the debtor cannot arrange a loan that will commence after the bankruptcy is complete.

In Chapter 11, the individual or business filing bankruptcy has the first chance to propose a reorganization plan. These plans may include downsizing of business operations to reduce expenses, as well as renegotiating debts. In some cases, plans involve liquidating all assets to repay creditors. If the chosen path is feasible and fair, the courts accept it, and the process moves forward. The Small Business Reorganization Act of 2019, which went into effect on Feb. 19, 2020, added a new subchapter V to Chapter 11 designed to make bankruptcy easier for small businesses, which are “defined as entities with less than about $2.7 million in debts that also meet other criteria,” according to the U.S. Department of Justice. The act “imposes shorter deadlines for completing the bankruptcy process, allows for greater flexibility in negotiating restructuring plans with creditors, and provides for a private trustee who will work with the small business debtor and its creditors to facilitate the development of a consensual plan of reorganization.” The Coronavirus Aid, Relief, and Economic Security (CARES) Act raised the Chapter 11 subchapter V debt limit to $7,500,000.

Chapter 11 bankruptcies are governed by specific timelines to ensure that the case moves along and the debtor is not allowed to simply use the shield of bankruptcy to prevent creditors from acting for an indefinite period of time. Before 2005, retail companies would often file bankruptcy then wait until January of the following year to submit a restructuring plan, essentially waiting to see how well the Christmas shopping period went before determining how they would reorganize.

Within Chapter 11 bankruptcies, there is a specific designation for debtors whose sole asset is a real estate parcel. For The Single Asset Real Estate debtors the bankruptcy process is simplied. In exchange the code provides shorter timeline for the filing of a plan of reorganization. These timelines are within (1) 90 days immediately after the order for relief or (2) 30 days after the date if the court finds that the debtor complies with the Single Asset Real Estate provisions or must start off doing monthly payments on the secured creditor for the loan’s non-default rate of interest. If the Single Asset Real Estate debtor fails to comply with these conditions, the bankruptcy court may grant a foreclosure or withdrawal of automatic stay over the real property. A Single Asset Real Estate case is not limited to small projects. It can include large commercial properties. Even a large shopping center worth millions of dollars could be Single Asset Real Estate case.

How Long will the RESOURCE FOR EDUCATION ADVOCACY COMMUNICATION AND HOUSING bankruptcy last?

Each bankruptcy is a unique set of facts, issues, and parties that makes it difficult to predict exactly how long a bankruptcy will last. There are some time limits that courts may or may not enforce that are intended to make sure that a bankruptcy case does not linger. The individual complexites of the RESOURCE FOR EDUCATION ADVOCACY COMMUNICATION AND HOUSING bankruptcy will determine how long it will last. According to our bankruptcy database, since 2012 the average time for a bankruptcy filing from inception to closure is 322.76 days. Averages for each chapter of bankruptcy are:

• Average duration of Chapter 7 bankruptcy cases: 280.42 days
• Average duration of Chapter 9 bankruptcy cases: 569.42 days
• Average duration of Chapter 11 bankruptcy cases: 550.42 days
• Average duration of Chapter 12 bankruptcy cases: 792.72 days
• Average duration of Chapter 13 bankruptcy cases: 874.69 days
• Average duration of Chapter 15 bankruptcy cases: 780.71 days

What Should Bankruptcy Creditors Do?

Bankruptcies can be very daunting for creditor that have not gone through the process before. The most importance advice that we can offer is to stay up date. Bankruptcies occur over time and there may be long gaps of time where nothing seems to be happening and then there is a sudden flurry of activity. If you are listed as a creditor in a bankruptcy case, you will receive occasional notices from the court. Unless it is a large bankruptcy where a bankruptcy claims administrator has been hired to manage communications with creditors, notices from the court will most likely be handled through the mail. This means that you may not know about something happening in bankruptcy case until fairly late. You can get this information by obtaining a PACER login, finding the right court, logging into the court, entering the case number, pulling the docket report, and reading through it. But remember, you will be charged for doing this and you will have to remember to go through this laborious process again every few days. (Or you can just sign up with BankruptcyObserver and let us keep you up to date.)

Other suggestions for creditors:

• Know what type of bankruptcy has been filed. Bankruptcies are not all the same. Just because a company has filed bankruptcy does not mean that all hope is lost. In chapter 11 bankruptcies, the debtor will try to reorganize to be able to continue operating. Chapter 7 bankruptcies are where companies or individuals are simply liquidating their assets. In these cases, the a trustee will likely be appointed that will assess the assets in the estate and contact the creditors.
• File a claim. Depending upon the bankruptcy chapter, you may not be able to file a claim immediately. Check on this and make sure that you file a claim as soon as you can.
• Check whether it is likely to be a payment to unsecured creditors. Item number 13 on the debtor's bankruptcy petition is a checkbox where the debtor is required to indicate whether funds will be available for distribtution to unsecured creditors or whether after any administrative expenses are paid, no funds will be available for distribution to unsecured creditors.