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Beginner's Guide to Bankruptcy

GSCFM 2016

By: Adam Easton | Alejandro Ojeda | Eve Sahnow | Jessica Pierre | Kevin Quinn | Tawnya Marsh


 


Oh no!! I Just Heard that my Customer Filed Bankruptcy!!
What do I do Know?


Receiving your first bankruptcy notification can be an anxiety laden experience.  Bankruptcy documents can be difficult to understand for those who do not deal with them on a daily basis. This simple guide is your companion to help you spot key issues when a customer files bankruptcy. It is written in an easy to understand style, without “legalese”.  It is NOT intended to be an all-encompassing solution for dealing with troubled customers. This is meant to assist the entry level credit professional navigate and define the surface of the bankruptcy process.  This will help you spot issues to raise with senior management.

First Things First!

Find out if the information is true and accurate or simply a rumor.
WARNING! Verification is extremely important as there are strict legal consequences for attempting to collect a debt if a bankruptcy has been filed.

WARNING! Verification is extremely important as there are strict legal consequences for attempting to collect a debt if a bankruptcy has been filed.

How do I confirm it?

PACER – PUBLIC ACCESS TO COURT ELECTRONIC RECORDS

(This is the fastest and most reliable way to verify, so why go anywhere else?)  Electronic access service that allows you to get case information directly from bankruptcy courts.

https://www.pacer.gov/ (Requires login and password)

Google search – Why not? Google knows all!

True? – Move to “Get your Ducks in a Row”

False? – See if you can determine where the basis of the rumor came from. (Talk to other vendors / trade groups)

Hmmm...Pay close attention to the filing date! This will dictate other rights such as potential preference issues (having to send money back) and reclamation (trying to get your stuff back).

Get your ducks in a row!

Do we have orders pending or in transit?

Yes? – If you were paid up front, good for you! If not, you should consider cancelling or rerouting those shipments back to your warehouse. If already delivered, you may have a chance to reclaim your material. Reclamation will be discussed later.
No? – mark the account for non-shipment.

If you have a contract in place, you need to explore what your options are before you cancel. More about contracts in a bit, but you may want to seek legal counsel. Just sayin...

What does the account look like? People are going to ask a lot of questions so you need to be ready. Gather the proper documentation, to include two years of account records on:

  • Delivery tickets (bills of lading, proof of delivery), credit application, guaranty and current statement. (This is the start of it but you will need all the info below retained for later consideration).
  • Payment information - Check remittance copies, ACH/Wire receipts etc.
  • Invoices (paid and unpaid) and a statement of account.
  • P.O.'s which could be emails, voicemail, fax etc.
  • How much do they owe you?

Who do we need to tell?

The Big Dogs! – This will include notification to salespeople, managers, CFO and others in your credit department (including other branches).

Your Peers! – Luckily NACM can help with this process.  Visit NACM’s portal, they will verify (good thing somebody’s got your back) then send out notification to others in your industry group.


Watch out for the Automatic Stay!

“STAY WHAT?”

YOU WILL NOT BE AUTOMATICALLY NOTIFIED!

What is it?  The automatic stay or “stay” bars you from ALL collection efforts.  The automatic stay is put in place immediately after filing and there is no notification sent to anyone.  The "automatic stay" protects the debtor and its property, stopping actions by creditors to collect on pre-petition debts (any amounts owed prior to the filing) or litigation.  Think of it as a shield that is put into place between you and the debtor as soon as the bankruptcy petition is filed.  The automatic stay applies to all chapters of bankruptcy

What does it mean to me?  Collection Efforts HALT!!!  The following can be considered collection efforts:  demand letters, statements, phone calls, or invoices sent by emails or fax.  As soon as you know about the bankruptcy, stop all efforts to collect any pre-petition amounts owed by the debtor or you will be in violation of the automatic stay (technically notice of the bankruptcy is not required for these efforts to constitute a stay violation).

Can the "STAY" be removed? - In some situations a creditor can ask the court to lift the “stay".  Common reasons to do this would be: debtor is behind on home mortgage payments, automobile payments, failed to maintain insurance on home or vehicle or has a non-dischargeable debt such as alimony, child support, or other debt the debtor has agreed to reaffirm (you can't get rid of this one bucko!). If the stay is lifted, the creditor can proceed with certain actions that would otherwise be prohibited by the automatic stay.

Am I someone that can request a "lift" – Under certain circumstances, a creditor can ask the court to lift the stay.  For example, if you have a lien on the debtor’s property and the debtor owes you more than the value of the property, you can ask the court to lift the stay. Otherwise, get in line. (meaning no).

How do I "Lift"?  A motion is required to be filed with the court. Your next step is to pick up the phone and call your favorite attorney to file a motion (with the presiding court) explaining (in detail) why you are requesting the lift. 

Exceptions to the Automatic Stay - If a debtor is filing the second bankruptcy within a year, the automatic stay applies only for 30 days unless extended by the court.  If a debtor is filing a third time within a year, the automatic stay goes into effect only by the request of the debtor (if the third filing was in good faith).

Hmmm.. Courts take the automatic stay very seriously. There are consequences for failure to abide by these rules. So keeping your nose clean will keep you out of trouble. Violation of the automatic stay can lead to contempt of court.

 

Expiration of the stay

With respect to acts against property of the estate – the stay expires when property no longer belongs to the estate. 

With respect to the debtor – the stay expires the earlier of when the case is closed or when the case is dismissed.

There are many exceptions and caveats to the automatic stay. If you have further questions regarding this you should seek legal counsel.

Reclamation

Exceptions to the Automatic Stay

What is it? Think of reclamation as a way to “reclaim” the goods that you sold on credit. Once the goods have been delivered or paid for, title has transferred. But, the Uniform Commercial Code (UCC) defines a process to get your goods back in the event of insolvency. The caveat is that successful reclamation requires cooperation with the debtor, who is already in bankruptcy and most likely unwilling to help.

What does it mean to me? Both the UCC and the Bankruptcy Code provide very clear direction on the reclamation process. What you can and cannot do is spelled out for you. Under the UCC, it is the seller’s right to demand that an insolvent (defined as easily as liabilities > assets) buyer return goods purchased on credit. A seller can reclaim goods delivered to a buyer if the seller satisfies the following conditions:

  • The goods were shipped on credit
  • The buyer was insolvent at the time it received the goods
  • The seller demands return of the goods within 10 days of the buyer’s receipt of the goods
  • The buyer is in possession of the goods when the seller made the reclamation demand.

Reclamation in bankruptcy: It is important to understand that reclamation rights continue under Section 546(c) of the Bankruptcy Code.  Section 546(c) requires a written reclamation demand and expands the reclamation reach-back period to 45 days from the above mentioned 10 days. Note that reclamation rights are subject to any lien on the property sought to be reclaimed.

What do I do?  Determine if you have sold them anything on credit in the last 45 days!!

If your answer is NO - get to the back of the line.

If your answer is Yes - Get out your favorite pen again, your "Reclamation Letter" should follow the guidelines below:

  • State that it is a demand for reclamation
  • Identify the goods subject to the reclamation and include copies of invoices and purchase orders.
  • Demand an inventory of the goods on hand and make sure they segregate them until return transportation is arranged.
  • Send letter through email, fax and certified carrier to include a signed return receipt.
  • For a sample demand letter see the Manual of Credit and Commercial Laws from NACM.

What has to be on the other side for this to work?

  • The buyer has to have your goods
  • Goods have to be identifiable as yours
  • Goods cannot be altered or processed (Must look as shipped)
  • Goods are not subject to a lien
WARNING! Once a customer files bankruptcy, a reclamation demand must be sent within 20 days or reclamation rights are lost! Best practice is to send the demand as soon as possible because reclamation rights are only valid if the debtor still has the goods.

Demand Deadlines:The 45-day reach-back period is based on the physical receipt of good, for instance when the goods are delivered and signed for.

Hmmm...Computing 45 day reach-back: Begin counting backward starting the day before filing date. If your goods were received (title transferred) during this time, then they fall within your reclamation rights.

The Initial Dust has Settled - Now What?


Priority Administrative Claims 503 (b)(9)

Early Case Considerations

“How do i put myself higher on the Totem Pole!”

First, answer this question:

ARE YOU A SUPPLIER OF GOODS OR SERVICES?

If the answer is “goods,” keep reading here. 

If the answer is “services,” sorry! You will not have a priority administrative claim.

What is it – 503(b)(9) elevates all or a portion of the goods supplied to the debtor 20 days prior to the bankruptcy filing from a low priority general unsecured claim to a higher priority administrative claim.  The goods must be sold in the ordinary course of business.

What does it mean for me – The 20-day portion of your claim has a much better chance of being paid in full. While secured creditors still retain priority over your 503(b)(9) claim, it’s still much better than being a general unsecured creditor.  Unlike a reclamation claim, a 503(b)(9) claim is still available even if a secured creditor has a lien on the goods you shipped and if the debtor has already sold the goods.

What do I do – you must file a motion for allowance and payments of your 503(b)(9) claim.  Always consult counsel for assistance with these filings. 

Hmmm.. Check the local rules and any orders in the bankruptcy case that permit or require the filing of 503(b)(9) claims by proof of claim form rather than by motion

The Creditor's Schedule

“The court may not know about you”

What is it? A debtor must provide a list of all known creditors when filing a petition for bankruptcy. You may or may not be a known creditor. It is important to verify that you have been listed as a creditor, your company is listed accurately and the amount owed is correct. If you are not listed as a creditor and do not have notice of the bankruptcy filing, it may preserve your right to continue collection action. (Talk to your legal counsel)

What do I do? You should obtain a schedule of creditors in the bankruptcy case. You can find the court filings through Pacer, or your attorney can get them.


The Proof of Claim

“Proving they owe you money”

What is it?  A proof of claim (aka POC) is your way of notifying the court that you’re owed pre-petition debt.  The actual POC form is a written statement that notifies the bankruptcy court, the debtor, the trustee, and other interested parties that a creditor wishes to assert its right to receive a distribution (pay out) from the bankruptcy estate.

What does it mean to me?  You need to decide if you’re going to file a POC.  There will be a notice sent telling you to "file a proof of claim" and list a deadline (Bar Date) to get your claim filed or not to file a proof of claim.  In most Chapter 7 and Chapter 13 bankruptcy cases where there are assets to distribute, creditors must file a proof of claim in order to get paid.

What do I do?  File a claim because failure to do so will result in no distributions (if there are any).

What to attach - All supporting documentation to support the basis and amount of the claim, including any applicable contracts, invoices, purchase orders, account statements, and security interest (if secured), etc.  DO NOT send originals!  Take copies of the documents and keep a copy for yourself as well. 

WARNING! Be aware of the deadline because late-filed claims may not be allowed.

If your claim is an Unsecured Debt - To see a sample proof of claim go to: http://www.uscourts.gov/forms/bankruptcy-forms/proof-claim-0
 A creditor may file a proof of claim on its own, but some may wish to consult with legal counsel.
** Do I qualify as a critical vendor? – Ask yourself, will the debtor survive without you (or at least your goods and services)?  If yes, Skip ahead to critical vendor discussion.

If your claim is a Secured Debt - If your debt is secured or you think you deserve "Priority" status, the proof of claim may be more complex and you might wish to consult legal counsel.

Understanding how to prepare and file a proof of claim is critically important for any creditor

WHERE DO I SEND THE CLAIM? – Typically you will send this to the clerk of the bankruptcy court where the filing is held, or in some cases, to a claims agent that may be appointed (which can be determined by looking at the case docket).

HOW DO I SEND CLAIM? – It is recommended that you submit your claim via reputable carrier (UPS/FEDEX) with tracking to ensure timely delivery.

WARNING! A claim is only considered timely if it is actually received by the claims bar date.

Don't file a claim- If you receive notice not to file a proof of claim, it has been determined that no assets have been discovered yet to make a distribution to creditors. If assets are discovered, you will receive a notice setting a deadline to file a proof of claim.

New Rule-Supporting documents must be attached. Exception: If supporting documents have been lost or destroyed (but must attach explanation of circumstances)

The Creditor's Schedule

“Is is worth it for us to fight this?”

What does this mean to me?  You need to weigh the amount of your claim with the anticipated legal fees if represented by counsel. Administrative and legal expenses can be costly, especially in complex chapter 11 cases.

What does it mean to me?  You need to identify which chapter of bankruptcy you’re dealing with.  The chapter will help determine the likelihood of any recovery (7, 11 or 13):

  • Liquidation (chapter 7) - Filed by individuals or companies. Creditors must file a proof of claim in order to be eligible for a distribution.
  • Reorganization (chapter 11) - Most common type of business filing.  Intended as a reorganization. Can result in a plan or a sale of assets, among other results. The company remains in control of its assets and has all rights of a trustee. If the creditor is listed on debtor’s schedules in a chapter 11 bankruptcy and creditor agrees with amount listed by debtor as being owed, creditor does not need to file a proof of claim (unless the creditor’s claim (i) is listed on the schedules as disputed, unliquidated or contingent or (ii) is not listed on the schedules, in which case the creditor must file a proof of claim in order to be eligible for a distribution).
  • Repayment (chapter 13) - Filed by individuals who retain assets and pay creditors over time under a structured plan
Hmmm.. Main difference between 7 & 13 - 7 = property of the estate is whatever debtor had at the time of the bankruptcy filing. 13 = property of the estate includes any property obtained by the debtor after bankruptcy filing until the time plan is confirmed.

What do I do? You need to determine if the debt is Secured or Unsecured. In other words, how is the debt classified by the court? Once you’ve classified your debt, make a final decision on how to proceed with filing your claim with the court.

Secured - Has the benefit of a security interest over some or all of the assets of the debtor.  Was the security interest perfected over 90 days prior to Bankruptcy?  You get paid first (even before the lawyers). File a claim.

Unsecured - Does not have the benefit of any security interest. Typically, but not always, is paid less than full value and pro rata with other unsecured creditors. See prior section on 503(b)(9) claims how your unsecured claim can be elevated to a priority administrative unsecured claim. Elevating all or a portion of a supplier’s claim from a low priority general unsecured claim to a higher priority administrative expense claim.


Critical Vendors

Can the debtor's business survive without you?

What is it? - Critical vendors are those that are essential to the bankrupt business’s survival in chapter 11.  In other words, you’re supplying a product or service so important to the debtor’s business operation that without it, the debtor would fail to reorganize.

What does it mean to me? -  If you supply a product or service that is so critical to the debtor’s operations that finding a replacement vendor would be overly burdensome on the debtor, the bankruptcy court may grant you critical vendor status.  If you supply a product that is easily obtained from any other vendor, it is unlikely that the court will grant your critical vendor status. The benefit to becoming a critical vendor is that you can obtain payment in full of your prepetition claim.  It also is a likely indicator that your relationship will survive a sale of the debtor’s assets and that your contract (if you have one) potentially will be assumed by the buyer.  Often, however, as a quid pro quo for payment of your prepetition claim, you will be asked to extend the same credit terms as they had prior to the bankruptcy.  This frequently is done through execution of a critical vendor contract which often provides that your critical vendor payment will be subject to clawback if you “misbehave” (i.e., revoke credit terms without justification).  In addition, critical vendors rarely are given a preference waiver, so any payments you received in the 90 days prior to the debtor’s bankruptcy filing may still be subject to recovery by the debtor (subject to any preference defenses you may have – see discussion below on preference defenses).

How to get selected as a Critical Vendor:

To be considered a critical vendor, the debtor must file a motion with the bankruptcy court and prove to the judge that a creditor’s products are necessary to the survival of the business and difficult or impossible to get from other vendors. If the debtor is able to carry this burden then it will be authorized to pay its critical vendors in full.

In order to grant a supplier critical vendor status, courts look at several factors:

  • Debtor needs particular products for the company to survive
  • Vendor likely would stop selling the debtor absent payment of its prepetition claim.
  • Whether payment to critical vendors (and therefore continued supply from those vendors) would increase the likelihood of a successful reorganization.
WARNING! Tread lightly when discussing critical vendor status because if you approach the debtor it can be deemed a violation of the automatic stay.

The Creditors Committee

Are you as big of a deal as you think you are?

What is it?  Are you one of the largest unsecured creditors?  If so, you might consider becoming a member of the creditors committee.  The unsecured creditors' committee is appointed by the U.S. trustee, in a chapter 11 case, and is made up of the largest unsecured creditors (usually 7 but sometimes fewer) of the debtors who are willing to serve. Committee members have a more active role than other creditors and have greater access to information and to the debtor’s representatives. The committee represents the interests of all unsecured creditors in a fiduciary capacity.

What do I do?  A creditors committee must first be formed.  The US trustee owns the process of forming the committee.

  • The U.S. Trustee may appoint a committee as soon as possible after the bankruptcy case is filed if there is significant interest among unsecured creditors.
  • The process begins with the US trustee sending a questionnaire to the largest unsecured creditors.  Creditors interested in becoming a member of the committee complete and return the questionnaire to the U.S. trustee.  From that point the U.S. trustee convenes an in person meeting of those creditors that are interested in serving.  The trustee will select members of the committee from among those who submitted questionnaires and are present at the meeting (although sometimes this is done based on the questionnaires alone without an in person meeting).

What does it mean to me?  The committee has official duties and responsibilities.  There is a time commitment involved with being a committee member. 

  • Review the progress and status of the case and discuss the same with the debtor. Also, the debtor is required to file periodic financial reports with the Court and the Office of the United States Trustee. These reports should provide valuable information for the committee.
  • Investigate the financial condition of the debtor, the operation of the debtor's business and the desirability of the continuance of the business.
  • Participate in the formulation of a plan.
  • Ask the Court to appoint an examiner in the case. An examiner is a professional (often a CPA) with the expertise to investigate the business and file a report drawing conclusions regarding the viability of the same, the competence of past or current management, possible fraud, etc.
  • Request the appointment of a trustee. A trustee is an independent third party charged with the responsibility of controlling estate assets.
  • Ask the Court to either dismiss the case or to convert it to one under Chapter 7 (liquidation). One cause for dismissal or conversion is unreasonable delay which is prejudicial to creditors.

The Bankruptcy Code provides further that the debtor must meet with the creditor's committee to transact such business as may be necessary and proper, and that the debtor shall furnish to the committee, upon request, information concerning the debtor's business and its administration. If in the performance of its duties, the committee would be aided by the services of an attorney,

Accountant or other professional, the Code provides a means for the appointment of such individuals as may be selected by the committee. The compensation of such individuals will be paid from assets of the debtor's estate, and will not be chargeable directly to individual committee members.


 Think About It! - Considerations Throughout the Entire Case....


Post-Petition Sales

"You mean they are still in business?"

What is it?  Some creditors may decide to sell to a debtor after they’ve filed chapter 11 bankruptcy.  The debtor in bankruptcy, known as a Debtor in Possession (DIP), is now essentially creating new debt that is not part of the bankruptcy case.

Vendors need to manage their post-petition credit risk very closely. Due to the possibility that a debtor may have limited cash flow through the bankruptcy process, vendors may want to consider whether to continue doing business, and if so, under what terms. Steps in determining a debtor’s post-petition liquidity include searching PACER to determine whether the debtor has authority to use its lenders cash collateral or has obtained DIP financing.  This information might help you as the creditor feel more comfortable with the debtors’ ability to pay you for post-petition shipments.  In addition, if the debtor fails to pay you for any post-petition shipment you are entitled to a higher priority administrative claim for those shipments (although there is no guarantee administrative claims are paid in full).   If you are not comfortable extending credit post-petition, you can impose COD or cash in advance terms or elect not to ship at all.


Preference claims & fraudulent transfers

"What? I might have to pay money back to the bankruptcy estate?"

The answer to this is “yes” - Keep reading.

What is it?  Preference and fraudulent transfer actions are some of the most common bankruptcy-related claims that creditors face. It may not seem fair, but it’s a reality of bankruptcy.  The US Trustee will review all payments made to creditors going back 90 days from the date of filing.  Any transfer (payment) made by the debtor to the creditor will be analyzed by the trustee.  The intent of preference & fraudulent transfers analysis is to prevent a debtor from “preferentially” paying one creditor over another or “fraudulently” transferring assets to another party.  The concept is rooted in fairness.

What does it mean to me?  No creditor wants to receive a preference action.  Nonetheless, you have to deal with it.  You may receive a “demand letter” from the US trustee. The demand letter lists the payments that the trustee or debtor-in-possession identifies as having been made to you within the 90-day period.  The demand is for immediate payment, usually less some small discount.  When a creditor receives a preference demand letter, the creditor should always have experienced bankruptcy counsel review the case to determine whether the creditor has valid defenses (explained more below).

What do I do?  You have to defend the preference action.  The trustee or debtor-in-possession has the initial burden of proving that the elements of a preference exist.  For starters, a prepayment is not a preference (even if the prepayment was received within the 90 days before bankruptcy).  The Bankruptcy Code provides defenses to preference actions. The three most common are all “affirmative defenses,” meaning that the creditor has the ultimate burden of proof on these issues.  The most common defenses used by creditors are explained below:

Creditors often are concerned about taking payments from their customers when the customer is known to be headed into bankruptcy. The reason is that the payment might be subject to clawback as a preference. Consider, however, that it often is better to have the money in-hand for several reasons:

  1. You have use of the money,
  2. The burden is then on the trustee to come after you to try to recover it as a preference, and
  3. You might have defenses to a later preference claim.

As it is often said, “possession is 9/10ths of the battle!” So, take the payment.

Ordinary Course of Business Defense – This defense is highly subjective, but the most common methodology is to look at the debtor’s payment history to evaluate its average time to pay your invoices for some period of time prior to the 90-day preference period. Did the timing stay consistent before and during the 90-day preference period? You may also use the average time for payment in the relevant industry to prove the ordinary course of business defense. What is the typical payment timing for other companies in the same industry? (Depending upon the court, the relevant industry might be the creditor’s or the debtor’s industry, if they are different.)

Contemporaneous exchange for new goods or services Defense - The creditor proves the “contemporaneous exchange” defense by showing that the creditor provided new goods or services contemporaneously with (i.e. at or near the same time) a payment that was of equal value to the goods or services provided and that the parties intended the transaction to be a “contemporaneous exchange.” For example, if the creditor delivers goods worth $100 on June 1 and is paid $100 for those goods on June 2, so long as the parties intended the $100 payment to be for the $100 in new goods and intended that the payment would occur “substantially contemporaneously” with delivery of the goods, then the contemporaneous exchange defense applies.

New Value Defense – This defense gives you credit for goods that you ship during the 90-day period after you have received an otherwise preferential payment.  The value of any “new” goods or services shipped during the 90-day period after an otherwise preferential payment can be offset dollar-for-dollar against any prior preferential payments made by the debtor. In order to use this defense, most courts require that the later shipment remain unpaid, although some courts will count the later shipment as new value even if you have been paid for that shipment.  Mechanically, using a simple example, this defense works as follows:  you receive a $10,000 payment on Day 80 prior to the bankruptcy filing and ship $7,500 of new goods (for which you were not paid) on Day 70 prior to the bankruptcy filing.  Under this scenario, assuming that the $10,000 payment meets all of the elements of a preference and would otherwise be avoidable by the trustee, you are entitled to offset the $7,500 shipment such that your net exposure is $2,500.  This defense is much more objective than the ordinary course of business defense.

Don’t get comfortable! They have 2 years from the date of filing to file a preference lawsuit.

Existing Contracts

"Wait! We have a contract! What do I do now?"

AKA  - Executory Contracts

This can be a complicated issue in any chapter 11 bankruptcy case, but don’t let the fancy words intimidate you.  This area of bankruptcy is understood by only a small number of people with a specialized knowledge or interest.  If you’re confused, that’s okay.  We’ll walk through the basics, but it’s always wise to consult bankruptcy counsel if you are aware of any existing contracts that require performance by either you or the debtor.

What is it? - An executory contract is a contract that has not yet been fully performed, that is to say, fully executed.  Put another way, it's a contract under which both sides still have important performance remaining, even if your customer is in bankruptcy.

What does it mean to me? If you are a party to a pre-petition contract (aka executory contract), debtors and bankruptcy trustees are authorized to “assume or reject” these contracts in bankruptcy.

Are you serious?  Yes, property interests of the debtor filing for bankruptcy become property of the estate.  An executory contract is property of the bankruptcy estate.

Why?  The Bankruptcy Code allows debtors to shed (i.e., reject) burdensome contracts (e.g., those where the debtor is paying more than current fair market value) and to retain (i.e., assume) beneficial contracts.

How?  Only with bankruptcy court approval can the debtor “assume or reject” an executory contract.  As a party to an executory contract, the debtor is required to send you notice of a motion seeking authority to assume or reject your contract and you are given an opportunity to object, if appropriate.  Bankruptcy courts defer to the debtor’s business judgment when deciding whether to permit assumption or rejection of an executory contract.

What does Assumption mean for me?  A debtor may assume an executory contract by:

Obtaining an order from the bankruptcy court permitting assumption of such contract after notice and an opportunity for the non-debtor counterparty to be heard in the bankruptcy court

-or-

Confirming a plan of reorganization, which provides for assumption of the contract.

If your contract is assumed, you are entitled to a cure of all defaults (with limited exceptions).  This means that if you are owed money under a contract for prepetition sales, if your contract is assumed, you will receive payment in full of your prepetition claim (as opposed to payment of some cents on the dollar).

What does Rejection mean for me?  Rejection of an executory contract is essentially the debtor’s declaration that it will not perform its remaining obligations.  Upon rejection, the debtor no longer can be compelled to perform. 

What do I do?

If you receive a notice that the debtor is seeking to assume your contract, it should include what the debtor believes is the amount needed to cure any defaults.  You should review this carefully to be sure that you agree with the amount.  If you do not, you will want to retain bankruptcy counsel who can file an objection for you to assert the correct cure amount.

If you receive a notice that the debtor is seeking to reject your contract, first consider whether it is a leverage play by the debtor to try to get you to renegotiate the terms of your contract in exchange for continued business.  If the contract is one you would prefer not to lose, you might wish to contact the debtor to see whether negotiations are possible.  But know that it is ultimately the debtor’s right to reject your contract.  If your contract is rejected, you are entitled to file a “rejection claim.”  The order authorizing the rejection or a subsequent notice should tell you the deadline to file your rejection claim.  A rejection claim is a claim based upon the debtor’s breach of your contract, which is what is deemed to have happened upon rejection.  It is as though you are filing a lawsuit in state court against the debtor seeking damages for the debtor’s breach, but instead you are asserting those damages in the form of a rejection claim in the debtor’s bankruptcy case.  The rejection claim is treated as a general unsecured claim.

WARNING! Beware the $0 cure. Often, in the context of a sale of the debtor’s assets, a notice will be sent to many contract counterparties at once stating that the contracts identified on an attached exhibit will be assumed and assigned to the buyer as part of the sale. In many cases, the exhibit is lengthy and the notice requires that any objections must be filed within a very short period of time. Be on the lookout for a $0 cure amount! If your contract is listed and the cure is erroneously listed as $0 but you do not object timely, you will not be entitled to any cure and will lose one of the greatest benefits of having your contract assumed.


Monitor, Monitor, Monitor!

Be cautious and monitor all filings and due dates. Deadlines are simply that... DEADLINES! Late or misfiled paperwork can cost you the ENTIRE amount of your claim.
Most proceedings take months and sometimes years to unwind. Use this time to read up on bankruptcy proceedings so next time, you will be ready.

Want More??

Hmmm.. There are so many things here that should be considered. Too many to get into in this “highlights only” document. 90-day lookback, prepayment, practical considerations, key defenses, ordinary course of business, new value, contemporaneous exchange etc. etc.

NACM has many resources available; start with the latest edition of "Manual of Credit and Commercial Laws" by National Association of Credit Management(NACM). The information is fantastic and sample forms are even provided. A no brainer for sure. As sure as you are that you have all your ducks in a row, you are not an expert. The trickier the case and higher dollar amount at stake, the greater the likelihood you should obtain legal counsel.


 

Useful Articles/Resources

http://www.hmblaw.com/presentations/bankruptcy-back-to-basics,-cfdd-credit-retreat,-troutdale,-ore-(february-2014).aspx

http://www.coveringcredit.com/business_credit_articles/Bankruptcy/art938.shtml

http://www.lexisnexis.com/legalnewsroom/bankruptcy/b/bankruptcy-law-blog/archive/2010/12/09/critical-vendor-status-in-a-business-reorganization.aspx

http://www.klgates.com/files/Publication/6eb5ac92-1b27-474f-8bf6-9a4ef5ea1ead/Presentation/PublicationAttachment/bd899918-1c17-4c99-af5a-9ce01e73728b/ba0906.pdf

https://www.justice.gov/sites/default/files/ust/legacy/2011/07/13/credcom.pdf


 

Who helped us slap this together?

Mark Dunham – Lieutenant Colonel Retired - US Navy & Air National Guard

Jason M. Torf, Horwood Marcus & Berk Chartered | (312) 606-3236 | This email address is being protected from spambots. You need JavaScript enabled to view it. | http://www.hmblaw.com/professionals-directory/jason-m-torf.aspx

The Meridian Group |  223 Fourth Ave, Suite 1700 Pittsburgh, Pennsylvania 15222-1713 | (412) 232-0113

Ryan L. Haaland, Attorney at Law | 1400 Fawcett Parkway, Nevada, IA 50202 |  This email address is being protected from spambots. You need JavaScript enabled to view it.

Holly C. Hamm, Snow Spence Green LLP |  2929 Allen Parkway, Ste. 2800, Houston, TX 77019 | (713) 335-4808 / This email address is being protected from spambots. You need JavaScript enabled to view it.

The United States Department of Justice | “Information For Prospective Creditor Committee Members On Chapter 11 Cases”

Manual of Credit and Commercial Laws - 2014 Edition

Principles of Business Credit 7th Edition

3 A.M. Flashbacks