Bankruptcy does not necessarily mean going out of business. Many companies, even major national and international brands such as General Motors, Marvel Entertainment, Six Flags, and Texaco, have used bankruptcy to reorganize their debt and other obligations. This reorganization allowed them to continue business operations – leaner and meaner, so to say.
This article lays out your business bankruptcy options and the consequences of filing business bankruptcy.
Chapter 11 Bankruptcy – Business Reorganization
A business intending to continue to operate, but with debt obligations, it cannot meet, can file Chapter 11 and reorganize its debt. A Chapter 11 bankruptcy begins with filing a petition and disclosure statement listing all assets and debts, including an income statement, and either a proposed plan for reorganization or the intention to file a plan. The owners of the business then become the “debtors in possession” and continue business operations while the Chapter 11 case is pending.
The reorganization plan will include all creditors’ claims organized by class, and each class will be treated separately. Some classes may have claims paid in full, others’ claims may be “impaired,” which means modified in some way, often paid less than what is owed. The creditors whose claims are impaired vote by ballot on the plan, the ballots are tallied, and the court holds a confirmation hearing to determine whether to confirm the plan.
The Chapter 11 Plan Must Be Feasible
Creditors want to be paid, and they often argue to the court that the proposed plan is not “feasible,” meaning, your business cannot hope to pay and perform under the plan considering its past performance, current finances, and anticipated future finances. This is a strong and persuasive argument, so if you are considering filing Chapter 11 be sure to craft a plan that will restore your financial situation and that your business can and will execute.
Once a plan is confirmed, the business operates as usual but pays creditors or performs its modified contractual obligations according to the confirmed plan. Once the plan is fully paid and performed, the business is discharged of liability for the unperformed or unpaid obligations.
Chapter 13 Bankruptcy – Sole Proprietor or Single Member LLC Reorganization
If you are a sole proprietor, a single-member LLC, or a married couple owning a business as a partnership or LLC, in most cases, you can file a personal Chapter 13 bankruptcy petition rather than Chapter 11, Why would you want to? Because tax law recognizes you and your business as one entity, not separate entities, you can use Chapter 13 to reorganize and discharge both personal and business debts and obligations.
Chapter 13 has many other advantages over Chapter 11. A personal Chapter 13 filing is a less onerous, more streamlined process and the filing fee is much less than Chapter 11. The attorney fee will be much less as well, as Chapter 13 has far fewer administrative requirements and requires fewer court appearances than Chapter 11.
How to File Chapter 13 and Reorganize Business and Personal Debt
If you decide to file Chapter 13, you (or you and your spouse) will meet with an attorney and craft a Chapter 13 petition and schedules, disclosing all income, expenses, assets, and debts, both personal and business. Once you take the online Credit Counseling course, your petition and schedules along with your certification of completion of the course will be filed. You will also file a proposed Chapter 13 repayment plan.
Using the Chapter 13 plan to Reorganize and Discharge Debt
Your attorney will also help you craft a three or five-year repayment plan that will allow you to do any or all of the following:
- Catch up with a mortgage, auto loan or lease, and business loan arrears;
- Catch up with any unpaid support obligations, such as alimony or child support;
- “Strip off” second mortgages, third mortgages, or HELOCs if the value of the property is less than the amount owed on the first mortgage;
- “Cramdown” any outstanding auto loans to current market value, and pay them off through the plan at prime plus 1-3%.
Regular Income is Required for Chapter 13 Bankruptcy
You must be able to show that you will have enough income to fund your plan and pay your ongoing expenses. If you do, the court will confirm your plan and in three or five years when you’ve completed your plan payments, you will be discharged of all unsecured debt and you will have reorganized your finances, both personal and business.
Chapter 13 for small business owners can achieve the same thing as Chapter 11, without the expense, time, and creditor oversight, but with the added benefit of dealing with personal debt and discharging any personal guarantees on business loans.
Chapter 7 Bankruptcy – Business Liquidation
If there is no reasonable possibility of continuing business operations even if some debt is reorganized, then Chapter 7 bankruptcy may be the only option. In a Chapter 7 business bankruptcy, the Trustee sells all business assets, if any, for the benefit of creditors of the business, and the business closes its books and ceases operations.
Chapter 7 bankruptcy is an opportunity to discharge all debt obligations of the business, which may include pensions, unperformed contract obligations, and business loans. The downside of Chapter 7 business bankruptcy is that if any individual personally guaranteed a business loan, that individual is still liable. The upside is that business owners walk away free of debt and contractual obligations, and may start another business in the same or a different field.
Chapter 7 for Sole Proprietors or Single-Member LLCs
If the business in question is a single-member LLC or a sole proprietorship, or a married couple owning it as an LLC or partnership, in most cases the business owner(s) could file a personal Chapter 7 case and have both personal and business debts discharged, inclusive of personal guarantees for business loans.
Business bankruptcy can get complicated, especially with the varying laws governing business structure state-to-state and the myriad ways a business can obtain financing. Before making any decisions, you should consult with a business bankruptcy attorney, who can provide you with an analysis of your options based upon your unique financial situation.
About the Author: Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with David Offen, Esq., a busy Philadelphia bankruptcy lawyer.
