Consumer Bankruptcy Journal Spring 2018 | Page 45

SEVEN CONCEPTS or retirement monies. They have other stuff, but it has no realizable value. The senior home lender is owed $1.2 million including delinquent payments of about $200,000 (payments and other charges). Interest runs at 4.5%. The junior lender is owed $500,000 principal and $200,000 in delinquent payments and other charges - $700,000 in total. Interest runs at 12%. It appears that the junior lender is effectively unsecured. (This fact is gold when it comes to voting.) Credit card and other personal debts are another $200,000. You are aware that the junior lender believes that it holds a secured claim, at least in part. Business debts are $150,000. Income and payroll tax obligations are paid timely. The Smiths have been trying to balance their debts for a period of years. They have not been honest with their creditors. They have made many promises and broken these promises many times. They lack credibility with their creditors. The facts here are typical of many small cases, a lot of debt, a lot of broken promises, unhappy creditors, little money, no real understanding of the problems and beaten up debtors. Though their situation is dire, a chapter 11 case can work. They need reassurance from you that they can succeed. Concept 1- The Small Case. Most chapter 11 cases are small. They have small revenues and a small asset base. They have a limited ability to fight through a chapter 11 case. Many do not make it through. However, the benefits of success are immense, e.g., the family home and the business can be saved. What are some problems of being a small case in Chapter 11? The court’s and the U.S. Trustee’s requirements are extensive and often burdensome. Many of these requirements were written for large companies but they apply to all chapter 11 debtors, of whatever size. Second, creditors who are angry or vengeful can swarm into a case and overwhelm the chapter 11 case. On the debtor side, the budget to oppose this creditor is modest and you may not have enough information to effectively fight the creditor, so opposing the over aggressive creditor is hard. A third concern is the time demands the case puts on debtors in small cases. They have lives to live. They do not have the time you need them to put into the chapter 11 case. The Seven Concepts and This Case. Fourth, most debtors are not highly sophisticated in the law and in business. They will not understand much of what goes on in a chapter 11 case. Their lack of understanding will lead to frustration which they will take out against their attorney. Do not take it personally. Let’s apply the seven Concepts to the debtors’ situation. To do this, I will use business, strategic and legal ideas and I will offer some other case examples to help explain the seven Concepts. What should you do? First, get in front of the curve by filing first day motions, e.g., to use cash collateral, a budget motion and a motion to pay priority payroll to the business’ employees. The motions give you National Association of Consumer Bankruptcy Attorneys Spring 2018 the opportunity to tell the judge the debtors’ story before the creditors tell the judge that your clients broke promises. Tell the judge that the Smiths are following the rules of bankruptcy and state which ones. Third, offer to make regular payments to the senior home lender. Payment builds credibility. It also makes you look good in the Court’s eyes. As to the third concern above, the demands on the small case debtors, this is a serious problem which can lead to failure unless the attorney does something about it. First, have an outside bookkeeper work on the business’ record keeping and help track the family expenses. Make sure that person reports to you any problems. Keep the debtors informed so that they can see progress and keep their hopes alive. Concept 2: Know the End Game; Set up the End Game Before the Case Begins. In chapter 13, creditors can object; they cannot vote. In chapter 11, on the other hand, creditors can both object and vote. Before you file a chapter 11 petition, have a good idea what the likely classes of creditors will be, who will be placed into which classes, whose votes will matter and how individual creditors are likely to vote. In chapter 11, classification of claims into classes is often the key to obtain the votes necessary to confirm a plan. Similar claims are placed into the same class. Dissimilar claims are placed in different classes. Each secured claim is placed in its own class. If the classes are not being paid in full pursuant to the terms of their contracts, then they are impaired. At least one impaired class must vote to accept the plan. For the unsecured creditor CONSUMER BANKRUPTCY JOURNAL 45