Fear of the unknown. The Ch. 11 process is unknown to many. C-level executives dread discussions about bankruptcy options. We just recently filed a new Chapter 11 case and thought we would write a series of posts on basic Ch. 11 procedural matters so as to demystify the process.
Filing Chapter 11 (reorganization/restructuring) is a powerful tool that can be invoked by businesses and certain individuals pursuant to Title 11 of the United States Code (aka the “Bankruptcy Code”). As a practitioner, I am privileged to be able to facilitate such restructurings. Here is the first post in this series on Ch. 11 basics.
The administrative burden of filing a case can be heavy. Often, a paralegal is running the “paper pushing” ship just before and shortly after a case is filed. Information gathering. Data compilation. Report generation. A debtor’s bookkeeper, accountant and/or CFO all work with Debtor’s counsel and paralegal staff to gather necessary documentation and to fulfill requirements imposed by the Court and the United States Trustee (appointed by Department of Justice). Each office has very specific document requests, rules and procedures.
In furtherance of a U.S. Trustee’s monitoring responsibilities, here is a list of what the U.S. Trustee wants prior to the Initial Debtor Interview. Most of the documentation requested is straightforward and anticipated:
- Bank account statements.
- Latest filed Federal Tax Returns or copy of extension to file.
- Financial statements.
- Payroll detail.
- Rent roll.
- Accounts receivable detail.
- Recently filed sales tax
- Recently filed payroll returns.
- Detail of intercompany transactions.
- Accounts payable detail.
- Check register for last 60 days.
- Filed Schedules and Petition.
Other requirements are not as obvious. Two that specifically need explanation are:
- Proof of establishment of Debtor-In-Possession account(s)
- Proof of insurance indicating that the Office of the U.S. Trustee is an additional certificate holder.
Once a debtor has filed a bankruptcy petition, it must close existing bank accounts and open new accounts which identify the debtor as a debtor in possession (“DIP”). All money from the bankruptcy “estate” (i.e. anything the debtor owns) must be put into these accounts. The title of “Debtor in Possession” must be printed on the checks along with the bankruptcy case number. The Bank will not issue a debit card for a DIP account.
While this seems complicated at first, the good news is that this is standard procedure. So, any bank should be familiar with this request. However, a debtor cannot go to just “any” bank. The U.S. Trustee’s Office will only accept DIP accounts from approved depositories. A current list of such institutions is available through the U. S. Bankruptcy Court in the district where the bankruptcy was filed. Approved Banks DIP
Within 15 days of receipt from the bank, a debtor must serve copies of monthly bank statements upon all creditors and interested parties, together with a monthly operating report (MOR) of gross receipts and disbursements. Both the monthly operating report (MOR) and DIP bank statements are publicly filed on a debtor’s docket.
Proof of Insurance
A debtor must maintain all insurance coverage during the bankruptcy process. This includes: general comprehensive liability; property loss from fire, theft or water; vehicle; workers’ compensation; and any other coverage that would be customary in line with the debtor’s business.
In addition to maintenance, a debtor must list the Office of the U.S. Trustee listed as an additional certificate holder and provide proof of such. The documentation of proof must include the type and extent of coverage, effective dates, and insurance carrier information. In order to fulfill the Trustee’s requirements, the debtor will usually have to provide proof of the request. The proof of insurance and additional certificate holder requirement is standard, so the insurance company should not have any trouble fulfilling a debtor’s request.
Please TAKE NOTE that a debtor’s failure to comply could result in DISMISSAL of the case or conversion to a Chapter 7.
This post does not constitute legal advice. Consult an attorney about your specific case.
Written By: Daniel Hart
Edited By: Salene Kraemer
From time to time, we have clients buy into a franchise or occasionally want to franchise his or her own business concept.
Franchising is a business model that combines aspects of working for yourself and working for someone else. It is an efficient system for an individual who wants to own/run a business but lacks the experience to do so. Within the United States, there are about 3,000 established franchise brands operating in over 200 different lines of business. A franchise is a legal and commercial relationship between the owner of a trademark, trade name, and business system (franchisor) and an individual or group wishing to use that identification in a business (franchisee). The most common form of franchising is product/trade name franchising in which a franchisor owns the right to a trade name and/or trademark and licenses the rights to use those.
Buying a franchise offers many advantages that is not available to an individual starting a business from scratch. Here are a few examples:
- Proven business system and brand name. Through years of experience and trial and error, franchisors have developed a business system and brand name that are successful.
- Pre-existing business relationships. Many franchises have existing relationships with suppliers, distributers, and advertisers that franchisees can utilize. Entrepreneurs must develop these relationships on their own.
- Quality market research. Typically, a franchisor will perform substantial market research into competition and the demand for the product or service in a specific location before allowing a franchisee to open a franchise there.
Similar to an entrepreneur opening their own business, a franchisee must spend a substantial amount in order to obtain their own franchise.
- First, there is an initial franchise fee, which is a one-time charge assessed to a franchisee in order to use the business concept and trademarks, attend training program, and learn the entire business. Franchise fees can have varying ranges depending on the size of the franchise system. This can range from as low as $2,000 to over $100,000.
- Depending on the specific type of business that you franchise, a variety of additional up-front costs can occur. These costs include rent/construction cost of building new facility, equipment, signage, initial inventory, working capital, and advertising fees.
After these initial costs and fees, a franchisee generally pays the franchisor royalties running around 5 to 8 percent of gross revenue plus contributing funds to a company-wide advertising program.
Many people may ask “why should I pay tens of thousands or hundreds of thousands of dollars before I start and then a royalty percentage every year after that?” For some, the answer is clear. By opening their own franchise of an already successful name-brand business, many can make more money quicker than opening their own business. Also, there is a greater likelihood that long-term return on their investment will be realized.
As with starting any business, it is vital to perform due diligence before investing in a franchise. Here are some examples of basic information you need to discover before committing to a franchise:
- Research growth potential. Simply, you need to make sure that there is a strong-likelihood that you can increase profits and have a successful business. Also, is there a market for your business where your location will be?
- Check consumer and franchise regulators. Check these within your state to see if there are any serious problems with that company. Check with the Better Business Bureau for any complaints against the company.
- Search public court records. Is the company involved in any litigation? If so, determine the nature of the lawsuit. If the nature of the lawsuit involves fraud or regulatory violations, that is a bad sign.
- Request a Franchise Disclosure Statement: By law, this document must be given to all prospective franchisees at least 10 business days before any agreement is signed. A franchise disclosure statement (FDD) contains an extensive description of the company. It includes information such as amount of fees required, any litigation/bankruptcy history, trademark information, advertising program, equipment you are required to purchase, and the contractual obligations of both franchisor and franchisee. If a franchise will not give you a FDD, you probably should not do business with that company.
- Contact other franchisees: The FDD should contain a list of existing and terminated franchisees. Use this list to your advantage. Contact current franchisees in order to gain insight as to whether or not the training was helpful, how well the franchisor responds to your needs, and whether sales/profits met their expectations. Reach out to a couple terminated franchisees as well. Ask why their franchise agreement was terminated. Was it due to lack of business, bad franchisor, or for some other reason? Also, if the list of terminated franchisees is quite lengthy, that might be a sign that that franchise is not doing well.
- Visit a current franchise location: This can give you a lot of information. You can determine whether or not that franchise has a healthy flow of customers. You might get an in-person conversation with a current franchisee and see how the operations are run.
By performing due diligence, you will have a clear picture as to whether or not you will buy a successful franchise and whether or not you will be doing business with a helpful franchisor or not.
Finally, work with a lawyer and accountant when undergoing the franchising process. Lawyers have expertise in performing research and can assist in reviewing and negotiating the franchising contract. An accountant can review any financial reports concerning the franchise and project profitability for the future.
(appropriately titled music video. this dance number was one of our favorite from daughter’s national dance competition this summer)
It was the day before Thanksgiving. A friend of mine called me in a panic. She received a notification that her bank account was frozen by a creditor; she was to get a direct deposit of her salary in the next 2 days, which was two weeks before Christmas. She needed to file bankruptcy fast in order to trigger the automatic stay (legal principle that means no creditor can take action to harm you).
I stayed up until midnight that day in order to get the case filed for her. Her business had gone bad and this was the fallout from it.
Often, bankruptcy cases are filed on an emergency basis. In many instances, time may be of the essence and you need to file the case immediately (e.g. a creditor has a judgment against you and has sent the Sheriff to your home or business; you have received a notice of garnishment of your wages or bank account by a taxing body). If this firedrill can be avoided, it should be.
Rushing into a case is pretty much never a good idea. Filing the petition on an emergency basis only increases the costs of your case and there may not be enough time to research potential issues that may arise during the course of your case. You may omit important creditors. You may omit assets. If the schedules are not accurate, you will need to amend them and that costs more money to do. Substantial, repeated amendments do not leave favorable impressions upon the U.S. Trustee or the Ch. 7 Trustee.
A debtor is permitted to file a barebones “emergency “bankruptcy petition together with a list of 20 largest creditors. The full set of schedules must be submitted within 14 days, unless extended.
Regardless of whether the case is an emergency filing or not, if you are an individual, you MUST complete pre-bankruptcy filing credit counseling course at least 24 hours before any case is filed.
- Talk to an attorney. He or she can give you the questionnaire you need to fill out well ahead of time. He or she will also give you a list of documents you will need You can start gathering that info. If the case is billed hourly, you will save yourself money by gathering up this information rather than having a paralegal do it.
- Pre-bankruptcy planning is always advisable for any individual or business. You don’t want to throw good money after bad (meaning you don’t want to pay down debt that ultimately may be discharged). You don’t want to make preferential or fraudulent transfers. Often, there are non-bankruptcy options, particularly for businesses (but that can be a topic for another blog post).
DISCLAIMER: This does not constitute legal advice. This post does not create an attorney client relationship. Consultant an attorney for more information re: this topic.
On July 3, 2016, while at mass with my mom in Weirton, WV at St. Paul’s Parish, in lieu of homily, priest played a slideshow of the flood devastation in WV that took place in the early hours of June 23, 2016, wreaking havoc, destroying 1,200 homes and taking at least 23 lives. Our priest gave no introduction and no commentary after. He let the pictures speak for themselves.
I am haunted daily by what I saw. There was an instrumental version of country roads playing in the background. Slow. Lilting.
My own Weirton WV childhood home flooded in 2004 on my 30th bday. Having been in their beloved home 40+ years, my dad and mom refused to vacate. I had just moved back home from Philly and I was living with my parents at the time. The day before I had just broken my Achilles‘ tendon, it had not yet been repaired and I was on crutches. The foot was fully not functional since Tendon snapped entirely.
Hurricane Ivan. A dam had broken and our whole Cove valley flooded. Many neighbors escaped in boats but we stayed. The water from Kings Creek across from my house flooded it’s banks and turned angry and violent and raging like a river.
The creek is my favorite part of home. What was always a source of fun and beauty and tranquility was betraying us. I remember j just couldn’t believe my eyes when I looked out our front window. The water kept coming closer and Closer to our house. I made panic calls to 911. I couldn’t get through. I kept calling my brother and sister. My brothers house flooded too. Fortunately the water and mud only reached our basement and first level. Water backed up via sewer drain in basement and started coming in that way too. I had never before feared for my life like that.
The cleanup took weeks and I couldn’t help at all because of my cast. Dad was 74 at the time. I remember dad and mom putting sandbags in Front of the house. I kept hollering for them to come in. That the water was getting closer.
For weeks, they both worked tirelessly with volunteers to get the mud out and I remember all the bleach. I remember FEMA coming and sucking out the mud with a vacuum. Access and egress out of the valley was limited because the windy roads and hillsides were washed out. I felt trapped. I will never forget seeing washed up vehicles in the creek bed. I remember the sick feeling in my stomach for weeks there after every time it rained.
I guess this is why collecting #wvflood relief items really means a lot to me. I cannot compare what happened to us to what happened down state. But, I can relate somewhat and I am really grateful for everyone who has donated. The pictures of the displaced older people really got to me.
A large group of Mt Lebanon residents who are native West Virginians organized an effort to collect needed items. I felt privileged to be a part of the efforts. The Wilcox family rented a 15 foot UHAUL which we filled. They drove the truck down to the flood distribution center in Charleston, WV. My Rotary group donated $1,000. Donations keep pouring in. The Mt. Lebanon Library collected a pick up truck full of items.
Starting July 21, 2016, I will be spending three days in Charleston, WV working on “MUDOUTS”, cleaning out houses. I will report back.
While we are so proud of the hip, collaborative working space we have created in Uptown Mt. Lebanon, after our recent expansion, we realize we have more room than we need. Help us find the right people to share the space with us. We have two vacant offices. Please share this post.
The right person is likely a professional (not necessarily a lawyer), probably currently working out of her/his home. He or she wants to avoid the commute to downtown Pittsburgh, avoid paying lots of money for parking, be close to the South Hills, wants some social interaction with others, needs a private conference office space from time to time, wants to be inspired and motivated by those around him/her in a friendly collegial environment.
Rates and terms negotiable and range from $350-950 depending upon need.
- Includes modern trendy common area hangout space
- Monthly Pow-wows with local business people
- Kitchen space
- Sunlit corner conference room
- Easy access to T-stop which is right behind the building
- Inexpensive parking
- Access to 19 nearby restaurants and hotel
- Postage Machine Use
- Printer/scanner UseEmail firstname.lastname@example.org or call or text Salene at 412.427.7075
Article for ABI Business Reorganization Committee: In Re Vivaro Corporation, et al. (S.D.N.Y.) Case Summary
WARNING: This is not a blog post written “In Plain English”. It is a repaste of an article Daniel and I wrote for a technical business bankruptcy legal e-newsletter published by the American Bankruptcy Institute (“ABI”) Business Reorganization Committee. Here is a link to the article replete with our bios.
Foreign Claimants? No Problem. All You Need Is a Postage Stamp to Satisfy Claims Objection Service and Declarations from the Debtor to Assert 502(d) Disallowance
By Salene Mazur Kraemer, Esquire, MBA, CTA and Daniel Hart, Paralegal
On November 13, 2015, in the United States Bankruptcy Court for the Southern District of New York, Judge Glenn issued a memorandum opinion in the bankruptcy case, In re: Vivaro Corporation, et al. (Case no. 12-13810), with the following rulings: (1) a claim objection against a foreign entity may be served by U.S. mail under Bankruptcy Rule 3007 and need not be served in the same manner required for service of a summons and complaint in accordance with Rule 7004; and (2) when a claim objection is based on § 502(d) of the Bankruptcy Code, the Debtors must meet their burden under § 547 of the Bankruptcy Code regarding the receipt of an avoidable transfer before the court will disallow and expunge such claims.
In Vivaro, various foreign entities from Pakistan, Costa Rica, Canada, London, El Savador, etc. filed proofs of claim in the debtors’ cases. Vivaro Corporation, et al. (the “Debtors”) filed various objections to such claims as well as to scheduled claims of such foreign creditors. At the same time, the Debtors initiated preference actions against such foreign creditors. The bases for the claims objections included § 502(d) of the Bankruptcy Code, which permits the disallowance (even if temporarily) of a claim if there are pending allegations of unreturned preference transfers.
Debtors served the claims objections upon the foreign creditors via U.S. mail and attached copies of the preference transfer complaints to the notices of claims objection. Debtors used the address listed on the Debtors’ schedules or listed on the appropriate proof of claim. In the packet sent to the foreign creditors, the Debtors included a declaration from the Debtors in support of their claim objections, which informed each claimant that they were in receipt of an avoidable preference transfer and provided the standard for a preference payment under § 547 of the Bankruptcy Code
Judge Glenn ruled that Bankruptcy Rule 3007 applies to claims objections and permits service by U.S. mail which includes service by mail on foreign entities, and, therefore, the Debtors’ properly served notice of claims objection to each foreign entity by U.S. mail. Bankruptcy Rule 3007 states that “[a] copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession, and the trustee at least 30 days prior to the hearing.” Fed. R. Bankr. P. 3007(a). Service by Rule 7004(a) was not necessary. Bankruptcy Rule 7004(a) provides that in adversary proceedings, personal service under Rule 4(e)–(j) F.R.Civ.P. may be made by any person at least 18 years of age who is not a party, and the summons may be delivered by the clerk to any such person. Fed. R. Bankr. P. 7004(a).
The standard of service of a summons and complaint upon an individual in a foreign country is governed by F.R.Civ. P. Rule 4(f)(1), which is made applicable to adversary proceedings by Bankruptcy Rule 7004(a). Service must be “[b]y any internationally agreed means reasonably calculated to give notice, such as those means authorized by The Hague Convention….” Fed. R. Civ. P. 4(f)(1).
This Vivaro Court rejected the Jorgenson v. State Line Hotel, Inc. (In re State Line Hotel, Inc.), 323 B.R. 703, 713 (9th Cir. B.A.P. 2005), decision that Rule 7004 applies to the service of claims objections. Rather, the Vivaro Court concluded that “Rule 9014 defers to Rule 3007 on the subject of claims objections: [Rule 3007] calls for an objection, not a motion, and authorizes notice, rather than requiring service.” The Court further reasoned that there is no reason to require different rules of service when dealing with claims filed by foreign entities. In respect to the second issue, the Vivaro Court ruled that if the Debtors showed proof to the Court that preferential transfers were made and not repaid, then § 502(d) of the Bankruptcy Code requires that the entire claim be disallowed unless the full amount of the avoidable transfer has been repaid. The Court, however, must be satisfied that the estate or estate representative has established a prima facie basis that the claimants received and have not repaid avoidable transfers. Although the complaint was not properly served in accordance with Rule 7004(a), copies of the complaint and Debtors’ declaration provided the claimants with notice and evidence of the avoidable transfers. Such service shifted the burden to the claimants to rebut the evidence that they received an avoidable preference. In this case, none of the claimants responded to the claims objections or made an attempt to repay the preference transfer to the estate.
The Court held that once a claimant’s liability has been determined, the claimant must be provided with a reasonable opportunity to turn over the property to the debtor’s estate in compliance with § 502(d) of the Bankruptcy Code before the claims may be disallowed. If the creditor is liable to the estate for having received an avoidable transfer in any amount, the creditor’s entire pending claim must be disallowed in full.
- If you have a foreign claimant, service of a claims objection by U.S. Mail will suffice.
- If you are attempting to disallow a creditor’s claim based on 502(d) of the Bankruptcy Code, you must first establish a prima facie basis that the claimant received and has not repaid avoidable transfers. Copies of the preference complaint together with declaration from the debtor should suffice.
Entrepreneurship is not for the faint of heart. I guess climbing 33 feet up a tree on a ladder strapped to it and then jumping out for a trapeze bar, is probably not for the faint of heart either.
Two weeks ago, I was lucky enough to go to an adult sleep-away camp called Camp No Counselors in Paradox, NY. Lots of sports activities, parties, talent show, color war games., as well as a rock, paper, scissors challenge (I came in 3rd in that with my mad skills). I enjoyed every minute of the getaway.
My friend and I signed up for a high ropes course. With a harness on your back, you had to climb 33 feet and then walk out about 3 feet to the edge of a platform. I am somewhat afraid of heights. I just kept thinking, don’t look down and block out the what ifs and take it one step at a time.
At the top, when I got off the ladder and stepped onto the platform, I had to turn around. The harness was in my way and I kept clutching to the tree like a koala bear. My friend Margi was videotaping and iphone snapping the whole thing. I am thankful she caught the moment on video. It has become important to me.
The guide said I had to walk out far enough so she could see my toes. I was terrified. I felt woozy, as though I was going to fall off to the right or left of the platform. I then had to jump out to catch a trapeze bar. She said, “Aim for over the bar.” My heart was racing 1-2-3 JUMP.
I caught the bar but couldn’t hold onto it. Down I went.
I thought about how this jump was symbolic of how I live my life generally, of entrepreneurism, of what we as business attorneys aim to do for other people.
It has been a challenging year for me as an entrepreneur. We opened two new offices, rebranded, and hired several new people. With this growth, comes stress, worry, anxiety, fear. I realize that relatively speaking, my appetite for anxiety, uncertainty is probably pretty large. But I have harnesses/safety nets. What are they? My parents, brother and sister who are my biggest cheerleaders, my good friends who know me well, my mentors who encourage me, and frankly cash reserves (could always be bigger). Who are your harnesses? Who catches you when you fall? Do you have plan B resources?
Running your own business does take guts. For sure. You have to have an appetite for risk. With great risk though, comes great reward.
As business attorneys and consultants, we are harnesses for our clients. They may be acquiring a business, purchasing significant assets, hiring a new employee, facing a financial restructuring. They are afraid and fear failure. We are there to tell them: “Take one step at a time.” “Don’t look down”. “Aim for over the bar.” We are there to catch them when they fall. We teach them how to self-correct for the next time.
Did I climb up the tree and try again? No, I didn’t, but there is always next summer!
When have you faced one of your fears? What did you tell yourself? Who are your safety nets? Do you have Plan B resources?