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Flashcards in Bankruptcy Deck (35)
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What are the basic actions that occur in a bankruptcy?

Bankruptcy gives creditors protection from their creditors and stops them from either permanently
(Chapter 7) or temporarily (Chapter 11 or 13) collecting a debt

Filing halts collection activity; grants “automatic stay” (with certain exceptions)

Stops creditors from suing debtor


How does bankruptcy of a corporation affect the owner's ability to file bankruptcy?

It doesn't; because the corporation is a separate legal entity.
Under bankruptcy; corporations are dissolved
Under bankruptcy; individuals are discharged


For what debts does bankruptcy NOT stop collections?

Student Loans
Income taxes from previous 3 years
Alimony & Child Support
Debts/judgements resulting from drunk driving
Pension obligations
Debts relating to SOX violations
Debts arising from illegal activities
Debts not listed in the bankruptcy filing


What key action will cause a bankruptcy discharge to be denied?

If a debtor fails to keep good records or falsifies documents; a discharge will be denied


What are the basic characteristics of a Chapter 7 bankruptcy (liquidation)?

Discharges all non-exempt debt

Can only be filed every 8 years from previous Chapter 7 filing

Voluntary or involuntary filing

Certain businesses are disallowed from Chapter 7 bankruptcies - Railroads; Banks; Insurance companies; Savings & loans (think: 7th inning RBIs)


What are the requirements for an involuntary bankruptcy filing under Chapter 7?

In some cases; your creditors can force you into Chapter 7 or Chapter 11 BK

Creditors must be able to prove that they are not being paid on time (i.e. debtor is insolvent) or that within the past 120 days the debtor assigned a custodian of the secured property

If 12+ unsecured creditors - at least 3 must file; claims must be in excess of $15,325

If less than 12 unsecured creditors - only 1 or more must file; claim(s) must be in excess of $15,325

Upon filing; a judge will declare an order for relief unless the debtor protests


What entities are disallowed from involuntary Chapter 7 bankruptcy filings?



What are the requirements for a voluntary bankruptcy filing under Chapter 7?

Must pass means test

Your income must be below the median income for your state (Note – median; i.e. middle; not mean; i.e. average)

Credit card companies made it harder for people to declare Chapter 7 when they lobbied Congress in 2005


How can a debtor reclaim possession of their property from the interim bankruptcy under Chapter 7?

If the debtor pays the court-assigned bond to keep a property in an involuntary BK; they can
reclaim possession of their property from the interim BK trustee


What are the basic characteristics of a Chapter 13 bankruptcy (personal repayment) filing?

Similar to Chapter 11; but for individuals
Gives individuals a reprieve from creditors
Creates a payment plan for the debt
Ch. 13 Involuntary petitions are not allowed


What are the duties and abilities of a bankruptcy trustee?

Represents the bankruptcy estate
Can sue or be sued
Oversees bankruptcy and watches for preferential creditor payments
Oversees priority transfer of assets to creditors


How and when is a bankruptcy trustee appointed?

Optional – Creditors decide
Can be elected by creditors or can be appointed by the court
Prior association with the debtor is allowed


What actions can a bankruptcy trustee take with respect to preferential creditor payments in a bankruptcy?

Trustee disaffirm preferences, can void payments on antecedent (past) debts that occur within 90 days of a BK filing (1 year if creditor is an insider)

A Trustee cannot void a payment made to a creditor that is an even swap (contemporaneous exchange) and for new value

A voidable preference must be on an old debt where the debtor is basically picking and choosing which creditors they send money to (AKA a voidable preference)


When can preferential transfers be voided by a bankruptcy (BK) trustee?

Made within One Year of BK to “insider” - Corporate officers/directors; Partners; Relatives
Made within 3 Months of BK “non-insider”
Creditor receives larger payment than BK liquidation would have granted


What is the treatment of a secured creditor in a bankruptcy?

Superior to claims of other types of creditors
Can take either collateral or cash proceeds from the sale of an asset
If collateral doesn’t satisfy amount owed; Secured Creditors become a general creditor for the difference.


What are the basic characteristics of a Chapter 11 bankruptcy (business repayment) filing?

Allows a business a reprieve from creditors
Creates a payment plan for the debt
Business remains in operation
At least 2/3 of each debt class of creditors must consent to reorganization
Ch. 11 Involuntary petitions are allowed


What is the order of priority given to unsecured creditors in a bankruptcy?

1. BK Trustee and Attorney fees get paid before all other unsecured credit cards
2. Salaries required to continue business once BK proceedings begin
3. Any claims filed resulting from business operations that occur after involuntary BK is filed
4. Wages owed to employees
5. Retirement contributions within last 6 months
6. Consumer deposits for undelivered goods
7. Child Support & Alimony
8. Taxes
9. Other general unsecured claims


What are key aspects of a bankruptcy involving a landlord or leases under Chapter 7?

The bankruptcy trustee can act in the best interest of the creditors and assign the leases under contract to the creditors

The trustee has 60 days to assume leases on equipment after bankruptcy is granted or the leases will be rejected


What assets are exempt from creditors in a bankruptcy estate?

Social security
Disability payments
Unemployment; Child Support; Alimony; Wages; Pensions; Annuities to the extent that they provide reasonable support for debtor and dependents


What is the bankruptcy estate?

The pool of assets available to creditors until liquidation


How long after a Chapter 7 bankruptcy filing can creditors claim inheritance or insurance payments for repayment?

Inheritance/Insurance payments received within 180 days of filing for a Chapter 7 bankruptcy become part of the BK Estate


What is a garnishment with respect to a bankruptcy?

Court allows a creditor to garnish or take a portion of the debtor's paycheck


What is an artisan's lien?

Applies to personal property like a car
If the dealership does $500 in repairs to your car; you don’t get the car back until you pay


What is a surety (co-signing)?

A third party agrees to be liable for a loan
Example: A parent co-signs on their child’s car loan


How is a surety liable in a transaction?

A surety is primarily liable
Surety can be released from liability if the creditor behaves in a way that increases the risk that they initially agreed to
Surety can be released from liability if the debtor changes the loan agreement in a way that materially increases the surety’s risk


What is a mechanics lien?

Lien on real property to secure payment for a repair/improvement done to the house

A contractor builds an addition to your house and you won’t pay. They can’t “repo” your house; so they get a Mechanics Lien that sticks until you sell your house and they get paid


What is a cosurety; and how are they liable in a transaction?

Two sureties are guaranteeing the same debt

Proportionately liable - If one cosurety is released from their obligation; then the remaining cosureties
have their proportionate share reduced by the released party’s percentage

If one surety pays more than their proportionate share of the risk; then the other sureties must compensate them for the difference; which is called Right of Contribution


What is a guarantor?

Similar to surety; but a guarantor is secondarily liable


What are the basic rights of a debtor under the Fair Debt Collection Practices Act?

Basically – your creditors have the right to collect from you; but not abuse you or embarrass you

The can’t contact you once you’re represented by an attorney

They can call other people to find out where you are; but they cannot identify themselves as collectors

They must stop calling you at work if you send them a certified letter that says “my employer doesn’t allow me to take calls at work.”

They must call you only at reasonable hours of the day – according to your time zone; not theirs


How may types of bankruptcy and what they relate to?

6 types
Chapter 7 - liquidation
Chapter 9 - Municipal debt adjustment
Chapter 11 - Reorganization
Chapter 12 - Family Farmers w/regular income
Chapter 13 - Adjustment of debts of individuals w/ regular income
Chapter 15 - Ancillary and Cross-Border Cases


Which cases require a trustee?

Chapter 7 and 13


Who can file each under chapter 7,11 and 13?

7 - I, P, C
13 - I
11 - I, P, C


Explain the Means Test.

A chapter 7 case by an individual consumer debtor may be dismissed consent ( pr with a debtor consent converted to a case under chapter 13) upon finding that granting relief under Chapter 7 would constitute abuse. Abuse may be determined by a specific means test or by a more general abuse test.


How is it determined if a debtor has sufficient income to pay some or all debts under Chapter 13?

First determine the debtor's avg income over the prior 6 months and compared to others.
>> If => If > the state median income - Means Test must be applied


How is the means test computed?

(6month avg income - allowed exp.) X 60.

If less than $7,475 - Chapter 7 permitted
If 12,475 or more -