Bankruptcy Can Play Out In A Number Of Ways From Reorganization To Liquidation
Just because a retailer can reorganize through bankruptcy doesnt mean it ought to go that route. Chapter 11 is not meant to provide permanent relief from debt payment, so if a companys liquidation value is greater than its revenue potential, shutting operations down entirely may very well be the best option. Liquidation is also known as Chapter 7 bankruptcy, in which a court-appointed trustee sells off the retailers assets merchandise and store fixtures, intellectual property, etc. in order to pay off its creditors in a prescribed order of priority. These are the two chapters used by bankrupt businesses Chapter 12 is designed for family farmers or family fishermen, and Chapter 13 is for individuals.
One of the biggest determinants in whether a company should attempt to restructure is simply whether it has a reason to exist
One of the biggest determinants in whether a company should liquidate or attempt to restructure is simply whether it has a reason to exist, says Melissa Kibler, a senior managing director at Mackinac Partners who works as an accountant on bankruptcy-induced reorganizations. If a company has too many powerful competitors or if its in a sector thats suffering as a whole as brick-and-mortar retail has been, due to Amazon and the rise of online shopping the answer may be no.
Reorganization efforts often fail, and a Chapter 11 bankruptcy can end in liquidation of some or all of the companys assets
Retention Of Title Clause
One way to avert loss from a potential bankruptcy claim filed by a client is to include a retention of title clause in your contract of sale. This clause allows you to retain the rights of ownership of the goods you deliver to the client until full payment is received. A contract of sale that includes this clause and which is signed by you and your client can give you claim to those goods if the client becomes insolvent. This way, you can avoid becoming an unsecured creditor in a bankruptcy filing.
It is important to note that some goods, like perishable goods, are not covered by a retention of title clause. In addition, if your customer enters administration, you will not be able to enforce a retention of title clause.
What Happens If I Declare Bankruptcy
When you declare bankruptcy, you will file a petition in federal court. Once your petition for bankruptcy is filed, your creditors will be informed and must stop pursuing any debt you owe. The court will then request certain information from you, including:
- The total amount of debt you owe
- A complete list of all your creditors
- An accounting of your total income
- An accounting of your outgoing expenses
You are permitted to represent yourself in bankruptcy court. You are also allowed to hire a lawyer who can serve as your advocate and help you navigate the complicated process of what happens if you declare bankruptcy. Having your debt discharged or reorganized in bankruptcy court can take a lengthy period of time. Should you get a lawyer, your lawyer can help you understand the relevant timeline in your bankruptcy case.
Recommended Reading: How Many Bankruptcies Has Donald Trump Filed
Are Bankruptcy Filings Publicly Available
Bankruptcies are considered a public record, but that doesn’t mean everyone’s going to know about it. Bankruptcy proceedings are filed in a system called Public Access to Court Electronic Records, or PACER for short.
For the most part, it’s more common for attorneys and creditors to use this system to look up information about your bankruptcy. But anyone can register and check if they want to. The service charges 10 cents per page to access case information.
Another way people might find out about your bankruptcy is if your local newspaper publishes public notices.
Finally, employers, landlords and creditors may be able to see on your credit report that you’ve filed bankruptcy when you apply for a job, an apartment lease, or a loan or credit card.
Drawbacks Of Chapter 7 Bankruptcy For Small Businesses
Unless you’re a sole proprietor filing bankruptcy, your business won’t receive a discharge of its debts in Chapter 7. So, if you’re somehow responsible for the business debtfor instance, you signed a personal guaranteeyou’ll still be on the hook unless you file a personal Chapter 7 bankruptcy.
Also, a business entity can’t use exemptions to protect assets in business bankruptcy. As a result, the trustee sells all of the business assets to pay creditors, and the business gets shut down.
In most cases, a business owner can get a better price for the business assets, and thereby pay down a more significant share of the business debt. This will leave less debt to be paid by the owners.
Plus, putting a business in bankruptcy opens the door for creditors to lodge objections or to claim that corporate formalities weren’t followed and that the members or shareholders should pay business debt with personal assets. To learn more, see Piercing the Corporate Veil: When LLCs and Corporations May Be at Risk.
Recommended Reading: What Is A Bankruptcy Petition Preparer
If You Owe Money To People Or Companies In The Eu
Bankruptcy might not be right for you if you owe money to people or businesses in the EU. These debts might not be covered by bankruptcy.
Your creditors could keep asking you for money, for example by calling you and sending you letters.
If you live in the EU, they could take you to court in the EU.
EU creditors still have to sue here in the UK rather than abroad in the EU, even if they have an existing judgment. The UK will recognise EU judgements entered or started before 31 December 2020.
If you live in the UK but have a home in the EU with a mortgage from an EU lender, the lender could take you to court in the EU.
The Type Of Small Business Will Impact Your Small Business Bankruptcy
Partnerships / Sole Proprietorship Business
If your small business is structured as a partnership or as a sole proprietorship then you will have to file personal bankruptcy as the business and the person that operates the business are not legally separate your personal and business assets and liabilities are not legally separated in a sole proprietorship or a partnership.
If you have an incorporated company the business is legally a separate entity with the assets and liabilities being held by the business and separately from the business owner.
If your business is incorporated then you do not have to file bankruptcy personally and your business can go bankrupt.
Certain assets that your incorporated business holds will be sold by your licensed insolvency trustee to distribute the funds to your creditors.
In a small business bankruptcy there might be certain creditor classes that have preference over the assets and these creditors will be paid first and receive preference when funds raised by the sale of your business assets are distributed by the trustee.
You May Like: Do It Yourself Bankruptcy Chapter 7 Software
Discharging Debt Through Bankruptcy
When you file for bankruptcy protection, a discharge from the court will relieve you of your obligation to repay your creditors for certain debts. Once your debt is discharged, your creditors cannot contact you or attempt to collect the debt in any way. A discharge of your debt is also permanent and final for all unsecured debt you include in your bankruptcy filing.
The timing of your discharge will vary according to the type of bankruptcy you filed. A Chapter 7 bankruptcy discharge order can take as little as four months while a Chapter 13 bankruptcy discharge can take three to five years.
If you are represented by a lawyer in your bankruptcy filing, you and your lawyer will each receive a copy of your debt discharge order. Your lawyer will help you understand what happens if you declare bankruptcy and which debts were discharged by your bankruptcy filing as well as those you might still be obligated to pay.
More Information On Succession Planning
- BDCs information on changing ownership can help you create a succession plan, sell your business, or hand over ownership to a family member.
We want to acknowledge that in the province of Alberta we are situated on the traditional territories of Treaties 4, 6, 7, 8 and 10, ancestral homeland of diverse First Nations groups, Métis and Indigenous people whose ancestors have walked this land since time immemorial and whose histories, languages and cultures continue to influence our vibrant community. We pay respects to the Indigenous people of this land, past, present and future, while recognizing their cultural heritage, beliefs, and relationship to the land on which we reside.
You May Like: Can Restitution Be Discharged In Bankruptcy
Bankruptcy: Definition And Facts
When a company has so much debt that it cant realistically keep up with its bills, it has several options moving forward. One of those options is bankruptcy.
According to the United States Courts, bankruptcy is a legal procedure for dealing with debt problems of individuals and businesses specifically, a case filed under one of the chapters of title 11 of the United States Code .
Looking past the legal jargon, bankruptcy is a process of dealing with extreme financial problems in bankruptcy court. This is rarely good for the company, its shareholders, or its debtholders.
If Creditors Keep Chasing You
You can check your estate details on our website to make sure we’ve been told about the creditor.
If the creditor is not listed against your estate, give your estate officer their details so that they can be contacted and given a chance to file a claim.
If creditors keep chasing you for payment then give them your estate number and ask them to contact your estate officer. They can also search for your insolvency details on our public register.
Don’t Miss: How Many Bankruptcies Has Donald Trump Filed
About Licensed Insolvency Trustees
In a bankruptcy, people or companies who can no longer pay their debts give all of their non-exempt property to a Licensed Insolvency Trustee who then sells it and distributes the money to creditors. Bankruptcy can be voluntary or forced by a creditor through the Courts.
Roughly 90 percent of bankruptcies in Canada are consumer bankruptcies where the business-related debts make up less than 50 percent of the bankrupt’s total debts.
When the bankrupt’s realizable assets do not exceed $15,000, the bankruptcy may be processed under summary administration. Almost all consumer bankruptcies are processed this way.
Bankruptcies processed as summary administrations are simpler for example, they don’t require a meeting of creditors. If your debtor’s bankruptcy is to be handled as a summary administration, you will find a notation saying so near the top of the documents you receive.
As soon as the debtor is declared bankrupt, creditors can no longer start or continue legal proceedings against the debtor without the Court’s permission.
If you are a secured creditor, however, you can take possession of the asset on which you hold a security unless the Court, under certain conditions, orders otherwise. For example, a bank holding a security on a car may take possession of the car and sell it even if the debtor has declared bankruptcy.
Can A Business File For Bankruptcy
Yes. Corporations, limited liability companies, partnerships, and sole proprietorships can all file for some kind of business bankruptcy. Depending on the type of bankruptcy you are filing for , there may be some eligibility requirements. Generally speaking, businesses file for bankruptcy when they are unable to repay their debts.
Don’t Miss: How Many Times Has Trump Filed Bankruptcies
What Is Chapter 7 Bankruptcy For A Business
Chapter 7 business bankruptcy is known as liquidation bankruptcy. When you file Chapter 7, your business will cease operations and existing assets will be sold off to pay your debt. Certain assets, like the filers home, are usually protected under bankruptcy exemption laws.
To file Chapter 7 bankruptcy, you need to meet certain income qualification standards. While all business entity types can file for Chapter 7, it is typically a tool used by sole proprietorships.
How Does Filing Business Bankruptcy Affect Your Credit
In short, the impact to your credit from filing for small business bankruptcy depends on the type of business you have. If you are a sole proprietor, theres no legal separation between you and your business.
When you file for bankruptcy, the court can discharge your debtsâthat means that you no longer have to pay them back, but youll pay the price with a huge hit to your credit. Bankruptcies show up on your credit report for seven to 10 years and can damage your score by more than 130 points.
If you have a registered business entity, such as an LLC or corporation, the legal wall between you and your business means neither the unpaid business debts nor the business bankruptcy should show up on your personal credit report.
But, they will show up on your companys business credit report. Of course, its important to remember that if you signed a personal guarantee on any of your businesss debt, then the unpaid debt will show up on your personal credit report.
Don’t Miss: Diy Bankruptcy Chapter 7
Keep Track Of Your Credit During The Process
Because declaring bankruptcy can affect your credit history and ability to do certain things in the future, it’s important to monitor your credit scores during the process and as you work on recovering from the ordeal.
As you do so, watch how certain actions affect your credit scores and look out for potential errors and negative information that might influence your score negatively. If you do find something that doesn’t belong on your credit report, dispute it with the credit reporting agencies.
As you keep track of your credit score during and after bankruptcy, you’ll learn better how to improve it over time and keep it in a good place going forward.
Want to instantly increase your credit score? Experian Boost helps by giving you credit for the utility and mobile phone bills you’re already paying. Until now, those payments did not positively impact your score.
This service is completely free and can boost your credit scores fast by using your own positive payment history. It can also help those with poor or limited credit situations. Other services such as credit repair may cost you up to thousands and only help remove inaccuracies from your credit report.
You Will Likely Have To Close Your Business
Some companies can declare bankruptcy and stay in operation, but this process is expensive, complex, and time-consuming. Companies that stay in operation file Chapter 11 and work with the courts to create a plan to pay off the debt over time.
Most small businesses that declare bankruptcy file Chapter 7 bankruptcy and close their doors immediately. This bankruptcy option requires asset liquidation to pay off their debt obligations.
For example, a restaurant may declare bankruptcy and sell its catering van to pay off a few existing obligations. Then, it would sell its kitchen equipment, furniture, and remaining inventory to reduce debts further. By the time those steps are done, the restaurant owner wont be able to continue operating anyways.
Bankruptcy is not just an easy way to erase debtit could cause you to lose your business entirely, leaving you and your employees without work.
You May Like: Has Mark Cuban Ever Filed For Bankruptcy
How Long Does A Bankruptcy Stay On Your Credit Report
Unfortunately, when you file for bankruptcy, it damages your credit severely. The notation that you filed for bankruptcy and your debts were discharged by the courts stays on your credit report for seven to ten years!
You may also have to sell personal assets like artwork, jewelry, and real estate to liquidate the assets to pay off some of your debt.
A poor credit rating and bankruptcy can affect your ability to get financing, buy a home, acquire insurance, and even get a job with some companies.
Ten years is a long time to suffer the consequences of poor financial decisions and mountains of debt. If there is any other way to handle your overwhelming financial situation, try and find one.
What Happens To An Employee When A Business Closes Or Theyre Given Working Notice
The COVID-19 pandemic has created economic hardship for many businesses. Retailers and restaurants have been some of the hardest hit, and other companies have had to permanently halt operations due to the impact of the coronavirus.
In my employment law practice, I continue to receive many questions from employees about their rights when their employer goes out of business, such as entitlements to severance and vacation pay. Here are the answers to some of employees most commonly asked questions when the company they work for shuts its doors.
Am I owed severance pay if my employer goes out of business?
You are entitled to full severance pay if your employer closes the business and you lose your job unless the company files for bankruptcy or goes into receivership.
In 2015, I was contacted by a significant number of employees who had been laid off from Future Shop and wrongfully dismissed, or not given legally appropriate severance packages, in the process. Parent company Best Buy, however, was still active and financially secure. Even though the company that dismissed the employees had ceased operations, we were still able to secure proper severance.
How much is severance pay?
READ MORE: The 5 facts you need to know about severance pay, according to an employment lawyer
Do I have to accept a severance offer by my employers deadline?
Can I get severance if the company goes bankrupt?
What happens if I am still on a layoff when the company closes down?
Don’t Miss: How Many Bankruptcies Has Donald Trump Filed