Gregg W. Wagman, Attorney at Law

 

CONNECTICUT BANKRUPTCY LAW

 

Non-Bankruptcy Workouts

The term "workout" is used to describe a more formal, mutually-negotiated modification of debt that does not involve a bankruptcy filing. Simply stated, a workout is an agreement worked out between the debtor and his or her creditors for payment of the debts between them. The agreement is negotiated without all the bells and whistles (and perhaps the stigma) of the bankruptcy process.

Workouts are sometimes called compositions or extensions. A composition is a contract between a debtor and two or more creditors in which the creditors agree to take a partial payment in full satisfaction of their claims. An extension is a contract between the debtor and two or more creditors in which the creditors agree to extend the time for payment of their claims. An agreement may be both a composition and an extension, or an agreement to accept less money over a longer period of time.

The same laws govern both compositions and extensions. Both are subject more to contract law principles than debtor-creditor rules. Thus, compositions and extensions must satisfy all formal requirements of contract formation, which can vary from state to state, but most of the basic principles are constant whichever state you're in. There must be an offer to make a contract, the offer must be accepted, and there must be "consideration" (a legal term meaning something of value exchanged between the parties).

While more than one creditor must enter into the workout agreement, there is no requirement that all of the debtor's creditors agree to its terms. Creditors that do not agree to the workout are not affected by it. In other words, they are entitled to pursue other remedies to collect the debts owed to them and can proceed to recover the full amount, but they are forfeiting the right to automatically benefit from whatever partial payment the composition allowed.

By entering into a voluntary agreement with creditors, the debtor avoids the stigma that attaches to bankruptcy but achieves the same results -- discharge from all or a portion of his or her debts. In fact, the workout discharge is even broader than a bankruptcy discharge. Also, a workout discharge does not affect the debtor's rights to file a future bankruptcy, whereas certain types of bankruptcy discharges do. But the main advantage of a workout is that it is voluntary. In a workout, unlike bankruptcy, all of the participating creditors must agree to the workout's terms.

 

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Attorney Gregg W. Wagman
70 Howard Street
New London
, CT 06320
Tel: 860-444-0100

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Bankruptcy code is complex and requires an absolute
understanding of the laws involved to keep you and your family safe.

 

 

How Chapter 7 Works

A chapter 7 case begins with the debtor filing a petition with the bankruptcy court serving the area where the individual lives or where the business debtor is organized or has its principal place of business or principal assets. (3) In addition to the petition, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) a schedule of current income and expenditures; (3) a statement of financial affairs; and (4) a schedule of executory contracts and unexpired leases. Fed. R. Bankr. P. 1007(b). Debtors must also provide the assigned case trustee with a copy of the tax return or transcripts for the most recent tax year as well as tax returns filed during the case (including tax returns for prior years that had not been filed when the case began). 11 U.S.C. § 521. Individual debtors with primarily consumer debts have additional document filing requirements. They must file: a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts. Id. A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a). Even if filing jointly, a husband and wife are subject to all the document filing requirements of individual debtors.

In order to complete the Official Bankruptcy Forms that make up the petition, statement of financial affairs, and schedules, the debtor must provide the following information:

  1. A list of all creditors and the amount and nature of their claims;
  2. The source, amount, and frequency of the debtor's income;
  3. A list of all of the debtor's property; and
  4. A detailed list of the debtor's monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.

Role of the Case Trustee

When a chapter 7 petition is filed, the U.S. trustee (or the bankruptcy court in Alabama and North Carolina) appoints an impartial case trustee to administer the case and liquidate the debtor's nonexempt assets. 11 U.S.C. §§ 701, 704. If all the debtor's assets are exempt or subject to valid liens, the trustee will normally file a "no asset" report with the court, and there will be no distribution to unsecured creditors. Most chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an "asset" case at the outset, unsecured creditors (7) must file their claims with the court within 90 days after the first date set for the meeting of creditors. Fed. R. Bankr. P. 3002(c). A governmental unit, however, has 180 days from the date the case is filed to file a claim. 11 U.S.C. § 502(b)(9). In the typical no asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim. Although a secured creditor does not need to file a proof of claim in a chapter 7 case to preserve its security interest or lien, there may be other reasons to file a claim. A creditor in a chapter 7 case who has a lien on the debtor's property should consult an attorney for advice.