Bankruptcy is a process a business goes through in federal court. It is designed to help your business eliminate or repay its debt under the guidance and protection of the bankruptcy court. Business bankruptcies are usually described as either liquidations or reorganizations depending on the type of bankruptcy you take. Bankruptcy is the legal proceeding involving a person or business that is unable to repay outstanding debts. The bankruptcy process begins with a petition filed by the debtor, which is most common, or on behalf of creditors, which is less common. All of the debtor’s assets are measured and evaluated, and the assets may be used to repay a portion of outstanding debt.
Understanding Bankruptcy For Business
Bankruptcy offers an individual or business a chance to start fresh by forgiving debts that simply cannot be paid while offering creditors a chance to obtain some measure of repayment based on the individual’s or business’s assets available for liquidation. In theory, the ability to file for bankruptcy can benefit an overall economy by giving persons and businesses a second chance to gain access to consumer credit and by providing creditors with a measure of debt repayment. Upon the successful completion of bankruptcy proceedings, the debtor is relieved of the debt obligations incurred prior to filing for bankruptcy. All bankruptcy cases in the United States are handled through federal courts. Any decisions over federal bankruptcy cases are made by a bankruptcy judge, including whether a debtor is eligible to file or whether he should be discharged of his debts. Administration over bankruptcy cases is often handled by a trustee, an officer appointed by the United States Trustee Program of the Department of Justice, to represent the debtor’s estate in the proceeding. There is usually very little direct contact between the debtor and the judge unless there is some objection made in the case by a creditor.
Types of Bankruptcy Filings
Bankruptcy filings fall under one of several chapters of the Bankruptcy Code: Chapter 7, which involves liquidation of assets; Chapter 11, which deals with company or individual reorganizations, and Chapter 13, which is debt repayment with lowered debt covenants or specific payment plans. Bankruptcy filing specifications vary among states, leading to higher or lower filing fees depending on how easily a person or company can complete the process.
Chapter 7 Bankruptcy
Individuals or businesses with few or no assets file Chapter 7 bankruptcy. The chapter allows individuals to dispose of their unsecured debts, such as credit cards and medical bills. Individuals with non-exempt assets, such as family heirlooms (collections with high valuations, such as coin or stamp collections), second homes, cash, stocks, or bonds, must liquidate the property to repay some or all of their unsecured debts. So, a person filing Chapter 7 bankruptcy is basically selling off his or her assets to clear debt. Consumers who have no valuable assets and only exempt property, such as household goods, clothing, tools for their trades, and a personal vehicle up to a certain value, repay no part of their unsecured debt.
Pros: If you are ready to start a new business or explore other career options, Chapter 7 could fit the bill. Chapter 7 business bankruptcy allows you to eliminate most (if not all) of your unsecured debts, including medical bills, personal loans, payday loans, cash advance loans and credit card debt. Once you file for Chapter 7 bankruptcy, it typically takes about six months to receive your discharge.
Cons: In this type of business bankruptcy, the company goes out of business. A Chapter 7 discharge does not relieve certain debts, including mortgages and car loans, and it can also result in the loss of property if your equity is non-exempt. If you plan to reorganize and start your existing business anew, this is not the right type of business bankruptcy to file. A Chapter 7 bankruptcy will appear on your credit report for 10 years, and you won’t be able to file Chapter 7 and receive debt discharge again within eight years.
Chapter 11 Bankruptcy
Businesses often file Chapter 11 bankruptcy, the goal of which is to reorganize and once again become profitable. Filing Chapter 11 bankruptcy allows a company to create plans for profitability, cut costs, and finds new ways to increase revenue. Preferred stockholders may still receive payments, though common stockholders will not.
For example, a housekeeping business filing Chapter 11 bankruptcy might increase its rates slightly and offer more services to become profitable. Chapter 11 bankruptcy allows a business to continue conducting its business activities without interruption while working on a debt repayment plan under the court’s supervision. In rare cases, individuals can file Chapter 11 bankruptcy.
Pros: Filing business bankruptcy under Chapter 11 can help you avoid having to close your company – although filing Chapter 7 instead always remains an option. Public companies often choose Chapter 11 because it allows them a chance to become profitable again and to provide value to their shareholders. When you obtain debt relief through a Chapter 11 claim, an automatic stay is put in place, meaning creditors cannot attempt to collect repayment during the term of the stay. Meanwhile, you’re able to create a reorganization plan to pay back debts and regain profitability, usually by renegotiating leases, contracts and other binding agreements. Creditors are often receptive to reorganization under a Chapter 11 business bankruptcy plan, since the payment they receive is more favourable than it would have been under Chapter 7. Since winning a Chapter 11 business bankruptcy discharge does not require selling your assets, if you believe you can make changes that will result in profitability, Chapter 11 could be your best bet.
Cons: Chapter 11 business bankruptcy is very complex, takes a long time to move through the courts and is expensive (i.e. higher filing fees and court costs). The repayment plan can be for long periods of time and can stretch to 20 years or more. And after all that, it won’t necessarily succeed.
Chapter 13 Bankruptcy
Individuals who make too much money to qualify for Chapter 7 bankruptcy may file under Chapter 13, also known as a wage earners plan. The chapter allows individuals and businesses with consistent income to create workable debt repayment plans. The repayment plans are commonly in instalments over the course of a three- to five-year period. In exchange for repaying their creditors, the courts allow these debtors to keep all of their property including non-exempt property.
Pros: Many sole proprietors have personal assets combined with their business assets. In Chapter 13, you can avoid losing your personal assets – versus Chapter 7 business bankruptcy, where some (but not all) of your personal property is exempt from being sold. Chapter 13 also allows more debt to be discharged than Chapter 11, and you can even apply for a Hardship Discharge to have your debts dismissed. It is also typically a faster and cheaper process than Chapter 11.
Cons: It can take up to five years to repay your debts under a Chapter 13 business bankruptcy plan. Your debts are paid with your disposable income, so whatever extra cash you have is committed to debt repayment. If you obtain debt relief by filing business bankruptcy under Chapter 13, you’re barred from filing a Chapter 7 claim for six years. Chapter 13 cases remain on your credit report for 10 years.
Business Bankruptcy Filings
Financially distressed municipalities, including cities, towns, villages, counties, and school districts, may file for bankruptcy under Chapter 9. Under Chapter 9, there is no liquidation of assets to repay the municipality’s debts. Chapter 12 bankruptcy provides relief to “family farmers” or “family fishermen” with regular annual income. Both Chapters 9 and 12 make use of an extended debt repayment plan. Chapter 15 was added in 2005 to deal with cross-border cases which involve debtors, assets, creditors and other parties who may be in more than one country. This type of petition is usually filed in the debtor’s home country.
Being Discharged From Bankruptcy
When a debtor receives a discharge order, he is no longer legally required to pay any of the debts on that order. So, any creditor listed on that discharge cannot legally undertake any type of collection activity (making phone calls, sending letters) against the debtor once the discharge order is enforced. Therefore, the discharge absolves the debtor of any personal liability for the debts specified in the order. But not all debts qualify to be discharged. Some of these include tax claims, anything that was not listed by the debtor, child support or alimony payments, personal injury debts, debts to the government, etc. In addition, any secured creditor can still enforce a lien against property owned by the debtor, provided that lien is still valid. Debtors do not necessarily have the right to a discharge. When a petition for bankruptcy has been filed in court, creditors receive a notice and can object if they choose to do so. If they do, they will need to file a complaint in the court before the deadline. This leads to the filing of an adversary proceeding to recover monies owed or enforce a lien. The discharge from Chapter 7 is usually granted about four months after the debtor files to petition for bankruptcy. For any other type of bankruptcy, the discharge can occur when it becomes practical.
Advantages and Disadvantages of Bankruptcy
Declaring bankruptcy can help relieve you of your legal obligation to pay your debts and save your home, business, or ability to function financially, depending on what kind of bankruptcy petition you file. But it also can lower your credit rating, making it more difficult to get a loan, mortgage, low-rate credit card, or buy a home, apartment, or business in the future. If you’re trying to figure out if you should file, your credit is probably already damaged. A Chapter 7 filing will stay on your credit report for ten years, while a Chapter 13 will remain there for seven. Any creditors you solicit for debt (a loan, credit card, line of credit, or mortgage) will see the discharge on your report, which will prevent you from getting any credit.
Filing For Business Bankruptcy
“Business bankruptcy” isn’t a term anyone wants to think about, especially in regards to their own company. But did you know that filing for business bankruptcy can actually be a smart choice? Certain types of bankruptcies for business allow you to keep your business, while others relieve you from debt obligation. Business bankruptcy doesn’t mean you are a failure or that your life is over. There is life after bankruptcy, and you’re in the right place to discover it.
Situations Where Filing Business Bankruptcy Makes Sense
No one thinks about filing business bankruptcy when they’re making a profit and experiencing organic growth. In almost all cases, the prospect of bankruptcy arises because your business is having problems. You could be in the last phase of the business life cycle, referred to as the decline phase where you lose your competitive advantage and are ready to exit the market. Or you could have made mistakes during the start-up phases of your business and have failed to find ways to generate profit or create a cohesive team. Business bankruptcy is meant to protect your personal assets should your business fail or you are unable to pay your debts. At its core, filing for business bankruptcy allows you to put your mistakes behind you and focus on progress. Whether that progress involves starting another business, reinventing the business you currently have or leaving the world of entrepreneurship to find a career where you do what you love, you must view bankruptcy as a fresh start.
Sole Proprietorship Bankruptcy
A sole proprietorship isn’t a separate legal entity. You’re likely a sole proprietor if you’re the only owner of your business and you haven’t incorporated or set up a specific form of business entity. You and your business are equally liable for debts incurred by the business. Since a sole proprietorship does not offer limited liability to its owner, creditors of the business can go after your personal assets in addition to business assets. This means that if the business does not have sufficient assets, creditors may sue you and try to collect the debt by taking your house, car, or other personal property.
A partnership is a business entity that’s owned by two or more individuals. In many respects, liability is more like that of a sole proprietor than a corporation, with some exceptions for hybrid versions.
• General partnership: A general partnership can be automatically created without any paperwork if two or more people agree to carry on a business or activity for profit. Each partner is considered a general partner and is personally liable for the debts of the partnership. If your business is a general partnership, you will be responsible for the obligations of the business.
• Limited partnership: In a limited partnership, there is at least one general partner and at least one limited partner. The general partner is personally liable for partnership debts while the limited partner is not. This means creditors can collect from the personal assets of the general partner but not the limited partner.
• Limited liability partnership: An LLP is designed to shield all partners from personal liability for the debts of the business. In some states, all partners enjoy limited liability, but there are states that require an LLP to have at least one general partner. Also, in certain states the liability protection of the LLP only applies to negligence claims so all partners may still be liable for business debts arising out of a contract (such as business loans or credit cards).
A corporation is an incorporated entity designed to limit the liability of its owners (called shareholders). Generally, shareholders are not personally liable for the debts of the corporation. Creditors can only collect on their debts by going after the assets of the corporation. Shareholders will usually only be on the hook if they consigned or personally guaranteed the corporation’s debts. However, shareholders may also be held liable if a creditor can prove corporate formalities weren’t followed, shareholders commingled personal and business funds or the corporation was just a shell designed to shield liability. This is called piercing the corporate veil.
Preparing for Financing Problems
You know to expect banks and other lenders to ask about your personal credit history when deciding whether to provide business financing. You might be able to increase your chances of approval by:
• preparing a comprehensive business plan
• opening the business with a partner with good credit
• soliciting investors to fund your business
• applying for financing from a small community bank, or
• find financing or grants offered as incentives to business by local communities.
You might be thinking about turning to the small business administration for funding. If you are, exercise caution. Often, the small business administration requires not only a personal guarantee but will also expect you to use personal assets to secure the business debt—most commonly your home.
When Financing Isn’t in the Cards
Just because you can’t get financed doesn’t mean you have to put aside your dream of working for yourself. You might want to consider:
• starting a personal service business that requires little or no operating capital
• working as a subcontractor for an established business to reduce your operating capital needs, or
• taking advantage of one of the many other independent contractor opportunities afforded by the “gig” economy.
Here are a few other things you’ll want to think about before starting your new business after bankruptcy.
• Tax or employer identification numbers: If you closed a previous business, you can’t start the new business with the same tax or employer identification numbers. You’ll need to obtain new numbers.
• Paying business taxes: Business owners maintain personal responsibility for business taxes. Avoid being stuck with a substantial bill by paying the business and trust fund tax debt. The business collects trust fund taxes from others, such as payroll withholding and sales taxes (but usually not excise taxes) and must transmit the payments.
• Extending payment terms to Since financing will be tight in the beginning, make sure that your new business is getting paid for the work it is doing. Extending payment terms to customers that are overly favourable might result in not getting paid at all.
• Maintain good business records: If you can secure financing, it is likely that it will be on a short-term but renewable basis. Keep good records so that when the loan is up for renewal, you can provide accurate figures to show that your business is succeeding and its building up.
Business Bankruptcy Attorney
When you need help from a business bankruptcy lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506