Bankruptcy law provides for the development of a plan that allows a debtor, who is unable to pay his creditors, to resolve his debts through the division of his assets among his creditors. The philosophy behind the law is to allow the debtor to make a fresh start, not to be punished for inability to pay debts. Bankruptcy law allows certain debtors to be discharged of the financial obligations they have accumulated, after their assets are distributed, even if their debts have not been paid in full. Some bankruptcy proceedings allow a debtor to stay in business and use business income to pay his or her debts.
Bankruptcy law is federal statutory law contained in Title 11 of the United States Code. Congress passed the Bankruptcy Code under its Constitutional grant of authority to “establish. . . uniform laws on the subject of Bankruptcy throughout the United States.” See U.S. Constitution Article I, Section 8. States may not regulate bankruptcy though they may pass laws that govern other aspects of the debtor-creditor relationship. A number of sections of Title 11 incorporate the debtor-creditor law of the individual states.
Bankruptcy proceedings are conducted in the United States Bankruptcy Courts. These courts are a branch of the District Courts of The United States. The United States Trustees were established by Congress to handle many of the supervisory and administrative duties of bankruptcy proceedings. Proceedings in bankruptcy courts are governed by the Bankruptcy Rules which were promulgated by the Supreme Court under the authority of Congress.
A bankruptcy proceeding can either be entered into voluntarily by a debtor or initiated by creditors. After a bankruptcy proceeding is filed, creditors generally may not seek to collect their debts outside of the proceeding. The debtor is not allowed to transfer property that has been declared part of the estate subject to proceedings. Furthermore, certain pre-proceeding transfers of property, secured interests, and liens may be delayed or invalidated. Various provisions of the Bankruptcy Code also establish the priority of creditors’ interests.
There are two basic types of Bankruptcy proceedings. A filing under Chapter 7 is called liquidation. It is the most common type of bankruptcy proceeding. Liquidation involves the appointment of a trustee who collects the non-exempt property of the debtor, sells it and distributes the proceeds to the creditors. Not dischargeable in bankruptcy are alimony and child support, taxes, and fraudulent transactions. Filing a bankruptcy petition automatically suspends all existing legal actions and is often used to forestall foreclosure or imposition of judgment. After 45 or more days a creditor with a debt secured by real or personal property can petition the court to have the “automatic stay” of legal rights removed and a foreclosure to proceed. When the court formally declares a party as a bankrupt, a party cannot file for bankruptcy again for seven years.
Chapter 11 bankruptcy allows a business to reorganize and refinance to be able to prevent final insolvency. Often there is no trustee, but a “debtor in possession,” and considerable time to present a plan of reorganization. The final plan often requires creditors to take only a small percentage of the debts owed them or to take payment over a long period of time. Chapter 13 is similar to Chapter 11, but is for individuals to work out payment schedules.
Under Bankruptcy Rules Rule 7001, an adversary proceeding may be filed in a debtor’s bankruptcy action for certain specific reasons. An adversary proceeding may be filed to recover money or property of a debtor, for the sale of a debtor’s property by a co-owner, to object or revoke a discharge, to revoke the confirmation of a reorganization plan, to determine the dischargeability of a debt, to obtain an injunction or other equitable relief, and for other matters.
Creditors also may initiate adversary proceedings to determine the validity or priority of a lien, to determine the validity of a debt, to obtain an injunction, or to subordinate a claim of another creditor. The debtor in possession may institute an adversary proceeding to recover money or property for the estate. A creditors’ committee may be authorized by the bankruptcy court to pursue certain actions which the debtor has failed to pursue.
The bankruptcy rules consist of nine distinct parts with Part VII governing adversary proceedings and Part VIII governing appeals. The court that will hear an appeal and the appropriate standard of review depends on which court issued the order or judgment that is appealed. Appeals of final judgments, orders, and decrees of the bankruptcy court are taken to the district court or the bankruptcy appellate panel established by the district court. Final decisions, orders, and decrees of the district court, as well as appellate decisions rendered under 28 USC 158(a) are heard by the court of appeals.
Bankruptcy typically requires the filing of vaious forms, which must be prepared in strict compliance with federal and local rules. Bankruptcy lawyers are experienced in filing bankruptcy petitions and other required filings, representing creditors and debtors at hearings, meetings and adversary proceedings, filing motions for relief from a stay of proceedings, objecting to claims or discharges, preparing reorganization plans, and advocating for the best outcome for their clients’ interests.
A debtor has a wide assortment of options available which may enhance, diminish, or prevent relief granted by the court. For example, hiding assets, fraudulent conveyances of assets, and preferential transfers are subject to scrutiny and potentially may result in criminal liability. Nevertheless, the Bankruptcy Code and applicable rules do allow pre-bankruptcy planning which includes paying regular expenses, certain debts, and do not require equal payments to all creditors. With the assistance of a talented local consumer bankruptcy attorney, few individual debtors in Chapter 7 are required to surrender assets for liquidation. Preparation and careful consideration in achieving legal compliance are the key to success.
In addition to bankruptcy, bankruptcy lawyers may handle the following matters: problems with debt collectors, tax problems with the Internal Revenue Service, liens, levies, wage garnishments, back tax problems, IRS offers in compromise, IRS installment plan arrangements, and IRS audits.