Secured Transactions Assignment 6
description
Transcript of Secured Transactions Assignment 6
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Secured TransactionsAssignment 6
Bankruptcy and
the Automatic Stay
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The Big Picture
Chapter 1. Creditors’ Remedies Under State Law
No remedies against the debtor’s person
Secureds and unsecureds have remedies against the debtor’s property
Chapter 2. Creditors Remedies in Bankruptcy
Secureds and unsecureds’ state remedies are interrupted by the stay
Secureds’ debts are cut to the value of the collateral
Unsecureds’ debts are discharged
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§9-102(a)(52). “Lien creditor” means . . . a creditor that has acquired a lien on the property involved by attachment, levy, or the like . . . .
§9-102(a)(72). “Secured party” means . . . a person in whose favor a security interest is created . . . under a security agreement. (Excludes mortgages)
Security interests are contractual; liens are judicial.
The categories are mutually exclusive.
Article 9 Terminology
Security interest
Lien
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§9-102(a)(52). “Lien creditor” means . . . a creditor that has acquired a lien on the property involved by attachment, levy, or the like . . . .
§9-102(a)(72). “Secured party” means . . . a person in whose favor a security interest is created . . . under a security agreement. (Excludes mortgages)
Security interests are contractual; liens are judicial.
The categories are mutually exclusive.
Article 9 Terminology
Mortgage Security interest
Lien Statutory lien
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§101(51): Security interest means a lien created by agreement. (Includes mortgages)
§101 (36): Judicial lien means lien obtained by judgment, levy, sequestration, or other legal or equitable process . . .
§101(53): Statutory lien means a lien arising by statute, but does not include security interest or judicial lien
§101(37) Lien means charge against property to secure payment
Bankruptcy Code Terminology
Security interest
Judicial Lien
Mortgage Article 9 security interest
Statutory Lien
Lien
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Specialized courts: Bankruptcy is a separate court system
Bankruptcy Courts
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Specialized courts: Bankruptcy is a separate court system
a. Federal
Bankruptcy Courts
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Specialized courts: Bankruptcy is a separate court system
a. Federal
b. Fully electronic, 1997-2005
Bankruptcy Courts
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Specialized courts: Bankruptcy is a separate court system
a. Federal
b. Fully electronic, 1997-2005
c. 200 locations in the US
Bankruptcy Courts
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Specialized courts: Bankruptcy is a separate court system
a. Federal
b. Fully electronic, 1997-2005
c. 200 locations in the US
Purpose: Coordinated resolution of debt problems
a. Consumers
b. Businesses
Bankruptcy Courts
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Bankruptcy Concepts1. Petition: Document that commences a bankruptcy case
2. Schedules: Lists of assets and debts, filed with petition
3. Proof of claim: Creditor’s statement of debt owing
4. Automatic stay: An “injunction” that takes effect on the filing of a bankruptcy case
5. Discharge: An injunction against future efforts to collect the debt from the debtor.
6. Motion to lift automatic stay: Secured creditor remedy
7. Adequate protection: Protection against decline in the value of the secured creditor’s collateral. In re Timbers of Inwood Forest Associates (1988). Example: Value of collateral drops from 100 to 90.
Provided by payments, liens, cushion of equity, etc.
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More Bankruptcy Concepts8. Reaffirmation: Debtor’s election not to discharge a debt
9. Property of the estate: “All legal or equitable interests of the debtor in property as of the commencement of the case,” except exempt property. Property of the debtor.
10. Trustee: Independent lawyer/accountant who administers property (“panel of trustees”) (as distinguished from the United States Trustee). Debtor in possession.
11. Pro rata distribution: Distribution of the same percentage of debt to each creditor in a class
Example: 5 cents on the dollar
12. Plan: Proposal to make specified payments
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
(Except exempt)
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
(Except exempt)
2. Court discharges all debt
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
(Except exempt)
2. Court discharges all debt
(Except nondischargeable and reaffirmed debt)
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
(Except exempt)
2. Court discharges all debt
(Except nondischargeable and reaffirmed debt)
3. Trustee sells the surrendered property and distributes proceed pro rata
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Liquidations: Chapter 7Deal: "Fresh start"
1. Debtor surrenders all property to trustee
(Except exempt)
2. Court discharges all debt
(Except nondischargeable and reaffirmed debt)
3. Trustee sells the surrendered property and distributes proceed pro rata
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Reorganizations: Chapter 11
Deal:
1. Debtor remains in possession during case (Enron)
2. Debtor proposes plan to repay debt, makes disclosure
3. Creditors vote on plan (each “class” has a veto)
4. Court can “confirm” (“cramdown”) a plan despite class veto, if the plan follows the absolute priority rule
5. Confirmed plan binds all creditors
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Debt Adjustment: Chapter 13Eligibility: Individuals (humans) with unsecured debt less than
$337K and secured debt less than $1 million, §109(e)
Deal:
1. Debtor keeps all of debtor’s property
2. Debtor proposes plan to pay
Secured creditors to the value of their collateral
Unsecured creditors all “disposable income” for three years (five years for debtors with above median incomes)
3. No voting; court confirms plan (“cramdown”) if it meets statutory requirements
4. If debtor performs plan, remaining debt is discharged
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Problem 6.1, page 109
What kind of collection action can Compusoft take against bankrupt debtors?
File a proof of claim
What about those bills Compusoft sends each month?
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Bankruptcy Code §362(a)(a) [A bankruptcy] petition operates as a stay, applicable to all entities,
of --
(1) The commencement or continuation . . . of [an] action . . . against the debtor . . . to recover a claim . . . that arose before the commencement of the [bankruptcy] case
(2) The enforcement , against the debtor or against property of the estate, of a judgment obtained before [bankruptcy]
(3) Any act to obtain possession of property of the estate or of property of the debtor
(4) Any act to create, perfect, or enforce any lien against property of the estate
(6) Any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case.
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Bankruptcy Code §362(a)(a) [A bankruptcy] petition operates as a stay, applicable to all entities,
of --
(1) The commencement or continuation . . . of [an] action . . . against the debtor . . . to recover a claim . . . that arose before the commencement of the [bankruptcy] case
(2) The enforcement , against the debtor or against property of the estate, of a judgment obtained before [bankruptcy]
(3) Any act to obtain possession of property of the estate or of property of the debtor
(4) Any act to create, perfect, or enforce any lien against property of the estate
(6) Any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case.
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Problem 6.2, page 109
1. Kansas Savings has a judgment for possession of some equipment.
2. Kansas Savings and the sheriff go to get the equipment
3. The debtor files bankruptcy.
Can Kansas Savings go forward with the levy?
No. Bankruptcy Code §362(a)(2)
Can the sheriff go forward with the levy?
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Bankruptcy Code provisions§362 (a) [A bankruptcy] petition operates as a stay, applicable to all
entities, of --
(2) The enforcement , against the debtor or against property of the estate, of a judgment obtained before [bankruptcy]
§ 101(15) The term “entity” includes . . . governmental unit . . . .”
(27) The term “governmental unit” means . . . state . . . or instrumentality of . . . a state . . . .”
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Problem 6.2, page 109
1. Kansas Savings has a judgment for possession of some equipment.
2. Kansas Savings and the sheriff go to get the equipment
3. The debtor files bankruptcy.
Can Kansas Savings go forward with the levy?
No. Bankruptcy Code §362(a)(2)
Can the sheriff go forward with the levy?
No. Bankruptcy Code §101(15), (27)
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Problem 6.3, page 110We represent secured creditor Bank. The debtor just filed under Chapter 11.
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$250KLien
Prime CutsClosed restaurant
Problem 6.3, page 110
Value $250K or less
We represent secured creditor Bank. The debtor just filed under Chapter 11.
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$250KLien
Prime CutsClosed restaurant
Can the bank foreclose?
Problem 6.3, page 110
Value $250K or less
We represent secured creditor Bank. The debtor just filed under Chapter 11.
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$250KLien
Prime CutsClosed restaurant
Can the bank foreclose?
Not without lifting the stay
Problem 6.3, page 110
Value $250K or less
We represent secured creditor Bank. The debtor just filed under Chapter 11.
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay?
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay?
What happens if the stay is lifted?
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$210KLien
Sprouts Up head-quarters building
Can the bank foreclose?
Problem 6.4, page 110
Value $600K
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay?
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay? No.
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$350KLien
Paradise Boat LeasingCommercial yacht
Problem 6.5, page 110
Value $700KBoat is uninsured. Bank is afraid it will go out and not come back.
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$350KLien
Paradise Boat LeasingCommercial yacht
Can the bank foreclose?
Problem 6.5, page 110
Value $700KBoat is uninsured. Bank is afraid it will go out and not come back.
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay?
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Bankruptcy Code §362(d)
(d) [T]he court shall grant relief from the [automatic] stay:
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest [or]
(2) With respect to a stay of an act against property . . . if
(a) The debtor does not have an equity in theproperty; and
(b) Such property is not necessary to an effectivereorganization
Can the bank lift the stay? Yes. “adequate protection” is protection against decline in the value of the collateral.
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling• How do we deal with Watson Investment, unsecured for $126K?
What can Watson do?
a. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(e)
How would we come out? Three views.
Petition
3 months
Now
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling
a. How do we deal with Watson Investment, unsecured for $126K? What can Watson do?
a. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(e)
How would we come out? Three views.
Petition
3 months
Now
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d).
How would we come out? Three views.
Petition
3 months
Now
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay.
How would we come out? Three views.
Petition
3 months
Now
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e).
How would we come out? Three views.
Petition
3 months
Now Motion Hearing
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Problem 6.6, page 110
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e).
How would we come out? Three views.
Petition
3 months
Now Motion Hearing
60 days
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Problem 6.6, page 110
Petition
3 months
Now Motion Hearing
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
How would we come out? Three views.
60 days
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Problem 6.6, page 110
Petition
3 months
Now Motion Hearing
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
Macklin gets adequate protection against decline in the value of the collateral (Timbers) or the stay is lifted.
How would we come out? Three views.
60 days
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Problem 6.6, page 110
Petition
3 months
Now
$50K $40K
Motion Hearing
$35K $30K $25K
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
Macklin gets adequate protection against decline in the value of the collateral (Timbers) or the stay is lifted. What decline?
Caseend
60 days
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Problem 6.6, page 110
Petition
3 months
Now
$50K $40K
Motion Hearing
$35K $30K $25K
Caseend
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
Macklin gets adequate protection against decline in the value of the collateral (Timbers) or the stay is lifted. What decline? Three views: from petition, motion, or hearing.
60 days
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Problem 6.6, page 110
Petition
3 months
Now
$50K $40K
Motion Hearing
$35K $30K $25K
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
Macklin gets adequate protection against decline in the value of the collateral (Timbers) or the stay is lifted. What decline? Three views: from petition, motion, or hearing. Ninth Circuit, when creditor would have received money by state procedure
Caseend
60 days
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Problem 6.6, page 110
Petition
3 months
Now
$50K $40K
Motion Hearing
$35K $30K $25K
We represent the bankrupt. Angry creditors are calling
b. How do we deal with Macklin Mortgage, secured by sterilization equipment for $50K? What could Macklin do? §362(d). Move to lift the stay. How long would that take? §362(e). What will happen at the hearing?
Macklin gets adequate protection against decline in the value of the collateral (Timbers) or the stay is lifted. What decline? Three views: from petition, motion, or hearing. What kind of protection here?
Caseend
60 days