Scura, Wigfield, Heyer, Stevens & Cammarota Blog
Navigating Bankruptcy as a Creditor: Essential Insights and Strategies
When a debtor files for bankruptcy, it can have significant implications for creditors. While an unfortunate end to a business relationship, it is important for creditors to do all they can to receive the maximum amount of money from a debtor filing bankruptcy. As a creditor, understanding the bankruptcy process and your rights within it is crucial for protecting your interests. In this blog post, we will explore important information that creditors need to know when dealing with bankruptcy cases. By familiarizing yourself with these key aspects, you can navigate the bankruptcy process more effectively and maximize the chances of recovering what you are owed.
What is a creditor?
Generally, a creditor is one that has a claim to money. In a bankruptcy case, creditors are usually split into two categories: secured and unsecured. Secured creditors are those who have a debt that they can collect by foreclosing on property owned by the debtor. Examples would include a car loan or a mortgage. Unsecured creditors are those that have nothing securing their claim but are still owed money. Examples would include medical debt, personal loans, or credit cards. It is important for a creditor to first determine what type of creditor they are. In an reorganizational bankruptcy (think chapter 13 for individuals or chapter 11 for business) a debtor will eventually draft a plan, and the treatment of creditors will depend on which class of claim the creditor holds.
Secured creditors tend to be more involved in the bankruptcy process. They can file motions for relief from the automatic stay, are entitled to certain adequate assurances, and, in the case of a mortgage, are entitled to continue to be paid by the debtor throughout the pendency of the bankruptcy. Unsecured creditors generally will not have all these options available to them.
Types of Bankruptcy
Bankruptcy cases typically fall under Chapter 7 (liquidation) or Chapter 11 (reorganization) for businesses, and Chapter 13 for individuals. It's important for creditors to determine the type of bankruptcy filed, as this will affect their rights and the course of the case. During a bankruptcy, a debtor will usually file a plan that shows how each type of creditor will, or will not, be paid back.
Automatic Stay and Proofs of Claim
Once bankruptcy is filed, the automatic stay immediately goes into effect, halting all collection activities by creditors. Creditors must immediately cease any attempts to collect debts, including lawsuits, foreclosures, or repossessions. A creditor who continues to attempt collections despite the automatic stay will often be subject to sanctions, including attorneys’ fees for failure to comply with the automatic stay. Creditors must be notified of the bankruptcy. If there are assets to be distributed in the case, creditors should submit a proof of claim form to the Bankruptcy Court Clerk, detailing the amount owed and supporting documentation. Filing a proof of claim may be essential to ensure participation in the distribution of any available funds.
The Meeting of Creditors
Creditors have the right to attend the Meeting of Creditors, also known as the 341 meeting. During this meeting, the debtor is questioned under oath by the bankruptcy trustee, and creditors may also ask relevant questions. Although creditors rarely attend these meetings, it provides an opportunity to gather information and raise concerns if necessary.
In addition to the 341 meeting, a creditor may issue a subpoena for a 2004 examination. This is equivalent to a deposition outside of bankruptcy. The creditor may request more documentation relating to the bankruptcy case. This examination allows creditors, with court approval, to question the debtor, related parties, and other individuals under oath about financial affairs and transactions leading up to the bankruptcy filing. The information gathered during a 2004 examination can uncover hidden assets, fraudulent transfers, or preferential payments that may recover additional funds for distribution to creditors. Seeking the assistance of an experienced bankruptcy attorney is crucial in utilizing the 2004 examination effectively.
Objections to Discharge and Reaffirmation Agreements
Creditors can object to the discharge of specific debts if they suspect fraud, misrepresentation, or other misconduct on the part of the debtor. Objections must be filed within the specified timeframe and provide supporting evidence. Creditors may also object to the debtor receiving a discharge of all debts in cases under chapter 7 or chapter 11. Additionally, creditors may consider entering into reaffirmation agreements with debtors, thereby promising to continue paying a debt that would otherwise be discharged. Careful evaluation of the debtor's financial situation and repayment capability is essential before pursuing a reaffirmation agreement.
In certain cases, creditors may initiate adversary proceedings to challenge specific aspects of the bankruptcy case. Adversary proceedings can involve issues such as preference actions (recovery of preferential payments made to creditors before bankruptcy) or fraudulent conveyance claims (recovery of assets transferred to third parties with the intent to defraud creditors). It is crucial to consult with legal counsel to determine if pursuing an adversary proceeding is warranted and when it must be made.
Plan Confirmation and Creditor Voting
In Chapter 11 cases, creditors have the right to vote on the proposed repayment plan. Creditors should carefully review the plan to ensure its fairness and feasibility. The percentage of creditor support and compliance of the plan with provisions of the Bankruptcy Code will impact the decision of the court to confirm or deny a plan of reorganization or liquidation. Creditors who dissent from the plan or believe it is unfair may voice their objections during the confirmation process.
Stay Relief and Collateral
Creditors with secured debts can seek relief from the automatic stay to pursue remedies against collateral, such as repossessing or foreclosing on property. However, obtaining stay relief requires court approval, and creditors must demonstrate a valid reason for doing so. Proper documentation and legal representation are crucial when seeking stay relief.
Empowering Creditors: Keys to Successfully Navigate Bankruptcy Proceedings
Being an informed creditor in bankruptcy cases is essential for protecting your rights and maximizing your chances of recovering outstanding debts. Understanding the bankruptcy process, knowing when and how to file proof of claims, attending important meetings, and considering legal actions when necessary are crucial tools for creditors. By seeking professional guidance and staying proactive, creditors can navigate bankruptcy proceedings with greater confidence and increase the likelihood of achieving satisfactory outcomes.
I have a passion for what I do. There are few things I enjoy more than helping good people and viable businesses find solutions to overwhelming debt.
Need Help? Contact Us Today!
Lists by Topic
- Personal Injury
- Chapter 13
- Chapter 7
- Debt Management
- Car Accident
- Chapter 11
- Business Bankruptcy
- Insurance Claims
- Business Law
- Consumer Bankruptcy
- Employment Law
- Probate and Estate Law
- Product Liability
- Slip and Fall
- Workers Compensation
- Commercial & Residential Real Estate
- Premises Liability
- wrongful death
- Family Law
- Video | Bankruptcy
- Bankruptcy Cost
- Corporate Litigation
- Trial Law
- student loans
- Attorney Fees
- Certified Civil Trial
- Dog Bites
- Relocation Assistance