October 20, 2020

Volume X, Number 294

October 19, 2020

Subscribe to Latest Legal News and Analysis

CARES Act Offers Small Businesses Enhanced Opportunities Under Chapter 11 Bankruptcy

The Coronavirus Aid, Relief and Economic Security Act of 2020 (“CARES Act”) which Congress approved last week, together with the Small Business Reorganization Act of 2019 (the “SBRA”) which became effective on February 19, 2020, will make Chapter 11 bankruptcy protection much more attractive for small business debtors.  Together, the two new pieces of legislation not only streamline existing rules governing the efforts of small businesses and individuals to restructure successfully under Chapter 11 of the Bankruptcy Code, but the CARES Act raises the maximum debt level to qualify from $2,725,625 to $7,500,000, thereby expanding access to this form of relief to thousands of businesses.  Moreover, the SBRA which fortuitously took effect last month just as COVID-19 was beginning to impact U.S. businesses, makes it easier for owners to continue to own their businesses and makes it more difficult for creditors to contest Chapter 11 cases. SBRA also provides one useful benefit for creditors through changes to the preference laws.

Expansion of the Small Business Opportunities Under the Bankruptcy Code

The CARES Act, which raises the debt threshold for companies and individuals to qualify to file as a small business debtor from $2,725,625 to $7,500,000, works in concert with the SBRA which added a new subchapter V to Chapter 11 of the Bankruptcy Code to make it easier and less expensive for small businesses to successfully reorganize. The SBRA makes the Chapter 11 plan process for small businesses simpler, faster and cheaper and makes it easier for existing owners to retain their ownership interests.  A small business debtor is defined as a business entity or an individual that is engaged in business whose aggregate non-contingent debts (excluding debts to affiliates or insiders) do not exceed $7,500,000 and which elects to be treated as a small business. 

The SBRA’s key provisions include:

  1. Only the small business may file a Chapter 11 plan, but the debtor must file its plan within 90 days of the date it files its bankruptcy petition, except in certain circumstances;

  2. A standing trustee similar to those appointed in Chapter 13 cases will be appointed to oversee each small business case;

  3. A creditors committee will not be formed;

  4. The Chapter 11 plan can modify the rights of a creditor secured by a security interest in the debtor’s principal residence if the loan secured by the residence was not used to acquire the residence but was used in connection with the debtor’s business;

  5. The Court can confirm a debtor’s plan without the support of any class of claims as long as the plan does not discriminate unfairly and is deemed to be fair and equitable with respect to each class of claims;

  6. To be fair and equitable, the Chapter 11 plan must provide that all of the debtor’s projected disposable income to be received during the length of the plan will be applied to make payments under the plan for a period of 3 to 5 years.

The SBRA will enable small businesses to quickly and inexpensively move through the bankruptcy process.  But small businesses which have debts between $2,725,625 and $7,500,000 will have only a year to take advantage of the statute since the CARES Act contains a sunset provision that will reduce the debt threshold back to $2,725,625 on the one-year anniversary of the bill’s enactment.  As in all Chapter 11 cases, creditors will need to be vigilant to ensure that Courts properly evaluate Chapter 11 plans, especially those that lack creditor support, and that their rights are properly protected.  

Changes to Preference Laws

The SBRA made several significant changes to existing preference laws which creditors have welcomed.  Trustees and debtors in possession have broad authority to file lawsuits to recover preferential transfers which were made 90 days prior to the date the bankruptcy case was filed, or in the case of insiders, one year.  In addition, under the prior law if the amount of the transfer was less than $13,650, then the trustee or debtor in possession would have to file the lawsuit to recover the transfer in the federal district where the defendant resides, not in the district where the bankruptcy case is pending. The SBRA raised the threshold for non-insider defendants from $13,650 to $25,000 so that claims of less than $25,000 must be filed in the district where the defendant resides.  In addition, the SBRA added as a requirement that, before filing the lawsuit to recover a preference, the trustee or debtor in possession must exercise reasonable due diligence and must “. . . take into account a party’s known or reasonably knowable affirmative defenses . . .” before filing the lawsuit.  Due to costs and logistics, preference suits are rarely filed outside of the district where the bankruptcy case is pending, so raising the threshold to $25,000 effectively immunizes most transfers less than $25,000 from recovery.  In addition, the SBRA’s due diligence requirement will result in a reduction of the number of preference lawsuits.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 91

TRENDING LEGAL ANALYSIS


About this Author

Jeffrey Tarkenton Commercial Bankruptcy Attorney Womble Bond Dickinson
Partner

Creditors, landlords, trustees and those with equity interests in commercial bankruptcy cases, fraudulent conveyance litigation and preference lawsuits rely on Jeff’s seasoned legal counsel. With more than 35 years of experience in bankruptcy cases, Jeff not only has the knowledge and background to deal with almost any issue that can arise in a commercial bankruptcy case, but he also has a long track record of achieving successful results for his clients.

Experience

Any result the lawyer or law firm may have achieved on behalf of clients in other matters does not...

202.857.4450
Matthew Ward Bankruptcy Attorney Womble Bond
Partner

Matthew Ward is the leader of the Bankruptcy, Restructuring, and Creditors’ Rights practice group of Womble Bond Dickinson (US) LLP, and is the Office Managing Partner for the firm's Wilmington, Delaware office, and a member of the Firm Management Committee.

He has extensive experience serving as primary counsel for numerous public and private companies, guiding them through all aspects of complex Chapter 11 and Chapter 7 proceedings, assignments for the benefit of creditors, or reorganizations out of court. Matthew has also regularly represented official committees of unsecured creditors as lead counsel. Additionally, his experience includes work for numerous private companies, money management firms, and private equity funds as bidders/purchasers in bankruptcy proceedings, acquisitions of distressed assets and change of control transactions. Finally, Matthew has represented numerous public and private companies, hedge funds, and governmental entities as creditors or other stakeholders in litigation.

Matthew is one of only seven attorneys in the State of Delaware certified by the American Board of Certification as a Business Bankruptcy Specialist, and has consistently been listed in Chambers USA for bankruptcy matters. Matthew has been selected on several occasions to give presentations on a variety of topics of bankruptcy law. Additionally, the Delaware State Bar Association chose him as the statewide winner of the DSBA Community Service Award, based on his demonstrated commitment to leadership and service in activities that enrich and strengthen the community over a substantial period of time. The National Diversity Council also presented Matthew with the Leadership Excellence in the Law award based on his dedication to racial integration and providing opportunities to racial minorities.

302.252.4338
James S. Livermon III Creditor Rights and Bankruptcy Attorney Womble Bond Dickinson Raleigh, NC
Partner

James "Charlie" Livermon is a Chambers-ranked attorney with a robust practice focused on creditors' rights and bankruptcy. A board-certified specialist in business and consumer bankruptcy, he has represented secured and unsecured creditors in Chapter 7, 11, 12 and 13 bankruptcy cases in all bankruptcy districts in North Carolina. He has significant experience in commercial loan workouts, restructurings, receiverships, foreclosures and other pre- and post-judgment remedies, and has defended lenders and creditors in lender liability actions, contract disputes, fraud, misrepresentation and...

919.755.2148