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Bankruptcy
Bankruptcy is condition in which a business cannot meet its debt obligations and petitions a federal district court[1] for either reorganization of its debts or liquidation of its assets. In the action the property of a debtor is taken over by a receiver or trustee in bankruptcy for the benefit of the creditors. This action is conducted as prescribed by the National Bankruptcy Act, and may be voluntary or involuntary.
Bankruptcy jurisdiction
Bankruptcy in the United States is a matter placed under U.S. federal jurisdiction by the Constitution (in Article 1, Section 8), which allows Congress to enact "uniform laws on the subject of Bankruptcy throughout the United States." Its implementation, however, is found in statute law. The relevant statutes are incorporated within the Bankruptcy Code, located at Title 11 of the United States Code, and amplified by state law in the many places where Federal law either fails to speak or defers expressly to state law.
While bankruptcy cases are always filed in U.S. Bankruptcy Court (an adjunct to the U.S. District Courts, bankruptcy cases, particularly with respect to the validity of claims and exemptions, are often highly dependent upon State law. State law therefore plays a major role in many bankruptcy cases, and it is often quite unwise to generalize bankruptcy issues across state lines.
Bankruptcy chapters
There are six types of bankruptcy under the bankruptcy code, located at Title 11 of the United States:
- Chapter 7 (a liquidation-style case for individuals or businesses),
- Chapter 9 (Municipal bankruptcy)
- Chapter 11 (a more complex rehabilitation-style case used primarily by business debtors, but sometimes by individuals with substantial debts and assets).
- Chapter 12 (a payment plan or rehabilitation-style case for family farmers and fishermen), and
- Chapter 13 (a payment plan or rehabilitation-style case for individuals with a regular source of income),
- Chapter 15 (ancillary and other cross-border cases)
Chapter 7
Chapter 7 personal bankruptcy is also known as straight bankruptcy, or liquidation bankruptcy. Under Chapter 7, debtors give up certain property that they own when they go bankrupt. The property is sold, and the proceeds are used to pay the creditors. In most cases debtors have few if any non-exempt assets, and thus in most cases they do not lose anything. In most Chapter 7 cases most debts are discharged about 90 days after filing. Debts that are discharged (which means they go away) include credit card debts. Debts that are not discharged would include child support payments and some taxes and student loans. Secured debts, such as car loans and house mortgages, are also not discharged. Under the new rules implemented as a result of the 2005 Bankruptcy Reform[2], it is now more difficult to qualify for Chapter 7 bankruptcy. Debtors are subject to a means test, and if income exceeds limits set by the government, the debtor must file under Chapter 13.
Chapter 13
Chapter 13 bankruptcy is a reorganization plan for individuals. To qualify for Chapter 13, an individual must have secured and unsecured debts under a certain amount. Under Chapter 13 the debtor keeps all of their property, but in return they make regular payments to a trustee, who distributes the payments to the creditors. Most Chapter 13 plans last for three to five years, and then the remaining unpaid and eligible debts are discharged. The types of debt that can be discharged under Chapter 13 was substantially scaled back by the 2005 reform amendments. Creditors may challenge a Chapter 13 plan but a plan can still be confirmed over their objection if the criteria for confirmation is otherwise met. A requirement for confirmation of a Chapter 13 plan is that unsecured creditors would receive at least as much as they would receive in a Chapter 7 liquidation.
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