This month, the Small Business Reorganization Act of 2019 officially went into effect. Creating a new subchapter under Chapter 11 of the Bankruptcy Code, the new law was designed to promote efficiency and simplicity for small businesses looking to reorganize by applying for Chapter 11 bankruptcy.
Although the recent changes have simplified the process of filing for Chapter 11 bankruptcy, doing so is still not an easy task, so if you are a small business owner and are considering bankruptcy, it is important to contact an experienced bankruptcy lawyer who can help protect your interests.
Chapter 11 Shortcomings
Prior to the passage of the new legislation, filing for Chapter 11 bankruptcy was difficult for small businesses, as it required detailed reporting and documentation that proved impractical for small business owners. Traditionally viewed as contracts of repayment, Chapter 11 plans required creditor assent and so were also notoriously time-consuming.
Because the costs and burdens of filing were so high, Chapter 11 bankruptcies were primarily reserved for large, complex businesses that had enough cash flow to justify the expense and time involved to file. In an effort to address the high costs, monitoring deficits, and procedural roadblocks faced by small business owner petitioners, Congress enacted the Small Business Reorganization Act (SBRA).
Changes Made by the SBRA
The recently enacted Small Business Reorganization Act addressed Chapter 11’s shortcomings by :
- Allowing debtors with noncontingent liquidated debts totaling less than $2,725,625 to opt for relief under Chapter 11;
- Requiring the appointment of a trustee in every small business case, who will be tasked with disbursing payment, helping debtors formulate a repayment plan, and participating in the process of reorganization;
- Shortening the time to file a plan from 120 to 90 days;
- Requiring that courts hold a status conference within 60 days of the filing of Chapter 11 petitions;
- Allowing for the funding of repayment plans from all disposable income (which includes income that isn’t necessary for business operation-related expenditures) within the plan period of between three and five years;
- Expanding the definition of property to include post-petition income;
- Reducing unnecessary procedural costs by prohibiting the appointment of a committee of creditors; and
- Eliminating the voting confirmation requirement.
Some of the most significant changes made to Chapter 11 proceedings for small businesses involve payment plans. For instance, under the terms of the new law, all petitioners must file a plan within 90 days. Similarly, only debtors are permitted to file a proposed repayment plan and plans themselves:
- Must contain information that was traditionally addressed in disclosure statements, including a brief history of business operations, a liquidation analysis, and a projection of the debtor’s ability to make payments;
- Must provide for repayment within three to five years;
- Can modify a secure lender’s rights with a lien on the petitioner’s principal residence, but only if the value received from the loan wasn’t used to purchase the debtor’s home and was used in connection with his or her business; and
- Allow the business owner to retain a stake in the company without having to pay creditors in full, as long as the repayment plan doesn’t unfairly discriminate, is feasible, and is fair and equitable to creditors.
Ultimately, these changes should make it easier for small business owners to file for Chapter 11 bankruptcy by streamlining filing procedures and providing petitioners with new tools to reduce liquidations and increase recovery for creditors.
Qualifying for Chapter 11 Bankruptcy as a Small Business
Before a business owner can take advantage of the SBRA’s provisions, he or she will need to demonstrate that his or her company qualifies as a small business, which means that:
- It is engaged in a commercial or business activity;
- It has secured and unsecured debt of less than $2,725,625; and
- It will use net income to repay creditors.
SBRA petitioners will also need to provide a copy of their company’s most recent balance sheet, a cash-flow statement, a federal income return, and a statement of operations, or a sworn statement explaining that the required documents don’t exist.
If petitioners satisfy these requirements, they could retain an ownership interest in their business, even when claims haven’t been fully repaid. This is unique to the SBRA, as typical Chapter 11 bankruptcy proceedings don’t allow shareholders to retain equity in their companies unless creditors are fully repaid.
Contact an Experienced Iowa Bankruptcy Attorney
To speak with a bankruptcy lawyer about restructuring your own small business, please call Telpner Peterson Law Firm, LLP at 712-309-3738 today. You can also schedule an initial case review with a member of our legal team by completing one of our brief online contact forms.