Automatic Stay: Does Not Exist For Small Business Cases Dismissed And Refiled in Two Years (In re Abundant)

Normal activity cannot exist (photo by Marilyn Swanson) By: Donald L Swanson The automatic bankruptcy stay: “does not apply in a case in which the debtor— . . . (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period” before the... Continue Reading →

When Does A Subchapter V Discharge Happen? (In re Satellite Restaurants)

Timing (photo by Marilyn Swanson) By Donald L. Swanson Here are opposing Subchapter V discharge rules—based on whether the plan is confirmed consensually or non-consensually: Consensual Confirmation.  “If a plan is consensual and confirmed under Section 1191(a), the debtor receives a discharge under Section 1141(d)”; butNon-Consensual Confirmation.  If a plan is non-consensual and confirmed under Section... Continue Reading →

Will Subchapter V’s $7.5 Million Eligibility Limit Be Extended In Time?

Sunset (photo by Marilyn Swanson) By: Donald L Swanson March 27, 2021, is the sunset date for Subchapter V’s eligibility debt limit of $7.5 million.  At the stroke of midnight, that coach will turn back into a $2.7 million pumpkin. So . . . where is the action in Congress to extend that $7.5 million limit? ... Continue Reading →

A Subchapter V Plan Needs To Be A First Day Filing (In re Online King)

A first day? (photo by Marilyn Swanson) By: Donald L Swanson Here is a Hard-Knocks Rule (i.e., a lesson I’ve learned the hard way): A plan of reorganization needs to be a first-day filing—or as close to that as possible. This lesson first imposed itself upon me three decades ago.  I’m representing a Chapter 11 debtor,... Continue Reading →

Quiz Question On Debt Limits For Bankruptcy Eligibility

Not eligible for roaming the prairie (photo by Marilyn Swanson) By: Donald L Swanson QUIZ – Multiple Choice Question Question: Where is this bankruptcy eligibility language found: “aggregate noncontingent liquidated secured and unsecured debts as of the date of the filing of the petition or the date of the order for relief in an amount not... Continue Reading →

“Small Business Debtor” And “Subchapter V” Co-Exist As Separate Systems In Chapter 11

Co-existing, side-by-side (photo by Marilyn Swanson) By: Donald L Swanson A little-known effect of the enactment of Subchapter V is this: Prior “small business debtor” rules now co-exist, side-by-side, with (and separately from) Subchapter V rules in Chapter 11; andWe have two separate-but-similar systems for small business debtors. A Chronology Consider this chronology of changes that... Continue Reading →

New Pandemic Law Fails to Extend Subchapter V Eligibility Limit

By: Donald L Swanson So . . . the second, bi-partisan pandemic bill has made its way through both houses of Congress. It has been approved by politicians in both parties. It is signed by the President and is now law.  Here is a link to the text of the bi-partisan law.  It’s called the "Coronavirus... Continue Reading →

What Are Owners Of A Closely-Held Business To Do, When Subchapter V Is Not Available?

By: Donald L Swanson It happens.  There are businesses in financial stress who, for a variety of reasons, can’t qualify for Subchapter V.  Owners want to save the business, but Subchapter V is not available. Reasons why Subchapter V might be unavailable include: Debtor has more than $7.5 million of qualifying debt and can’t get enough... Continue Reading →

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