Chapter 11 allows a business or an individual to reorganize debt under court supervision. The debtor usually keeps running its affairs while the case moves forward. The sections below walk through each stage of the process.
Filing the Chapter 11 Petition
A chapter 11 case begins with the filing of a petition with the bankruptcy court serving the area where the debtor has a domicile or residence. The petition may be a voluntary petition, filed by the debtor, or an involuntary petition, filed by creditors that meet certain requirements. 11 U.S.C. §§ 301, 303.
A voluntary petition must adhere to the format of Form 1 of the Official Forms prescribed by the Judicial Conference of the United States. (The Official Forms are not available from the court. They may be purchased at legal stationery stores or downloaded from the Internet at www.uscourts.gov/bkforms/index.html.)
The voluntary petition will include standard information about the debtor. This covers the debtor’s name(s), social security number or tax identification number, residence, and location of principal assets (if a business). It also states the debtor’s plan or intention to file a plan, and a request for relief under the appropriate chapter of the Bankruptcy Code.
Unless the court orders otherwise, the debtor also must file the following with the court. Fed. R. Bankr. P. 1007(b).
- Schedules of assets and liabilities
- A schedule of current income and expenditures
- A schedule of executory contracts and unexpired leases
- A statement of financial affairs
If the debtor is an individual (or husband and wife), there are additional document filing requirements. 11 U.S.C. § 521. Such debtors 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
- A record of any interest the debtor has in federal or state qualified education or tuition accounts
A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a).
Chapter 11 Filing Fees
The courts are required to charge a $1,167 case filing fee and a $550 miscellaneous administrative fee. The fees must be paid to the clerk of the court upon filing. With the court’s permission, individual debtors may pay in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8.
Several rules apply to installment payments:
- Fed. R. Bankr. P. 1006(b) limits to four the number of installments for the filing fee.
- The final installment must be paid not later than 120 days after filing the petition.
- For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than 180 days after filing the petition. Fed. R. Bankr. P. 1006(b).
- The $550 administrative fee may be paid in installments in the same manner as the filing fee.
If a joint petition is filed, only one filing fee and one administrative fee are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 1112(b)(10).
The Debtor in Possession
A debtor that files a voluntary petition under chapter 11 automatically assumes an additional identity as the “debtor in possession.” 11 U.S.C. § 1101. The same is true in an involuntary case upon the entry of an order for relief. The term refers to a debtor that keeps possession and control of its assets during a chapter 11 reorganization, without the appointment of a case trustee.
A debtor will remain a debtor in possession until the debtor’s plan of reorganization is confirmed, the case is dismissed or converted to chapter 7, or a chapter 11 trustee is appointed. The appointment or election of a trustee occurs only in a small number of cases.
Generally, the debtor, as “debtor in possession,” operates the business. The debtor in possession also performs many of the functions that a trustee performs in cases under other chapters. 11 U.S.C. § 1107(a).
The Disclosure Statement and Plan of Reorganization
Generally, a written disclosure statement and a plan of reorganization must be filed with the court. 11 U.S.C. §§ 1121, 1125. The disclosure statement must contain information concerning the assets, liabilities, and business affairs of the debtor sufficient to enable a creditor to make an informed judgment about the plan. 11 U.S.C. § 1125.
The information required is governed by judicial discretion and the circumstances of the case. In a “small business case,” the debtor may not need to file a separate disclosure statement if the court determines that adequate information is contained in the plan. 11 U.S.C. § 1125(f).
The contents of the plan must include a classification of claims. The plan must also specify how each class of claims will be treated. 11 U.S.C. § 1123.
Creditors whose claims are “impaired” vote on the plan by ballot. 11 U.S.C. § 1126. Impaired claims are those whose contractual rights are to be modified, or who will be paid less than the full value of their claims under the plan.
After the disclosure statement is approved by the court and the ballots are collected and tallied, the court will conduct a confirmation hearing to determine whether to confirm the plan. 11 U.S.C. § 1128.
Chapter 11 for Individual Debtors
In the case of individuals, chapter 11 bears some similarities to chapter 13. For example, property of the estate for an individual debtor includes the debtor’s earnings and property acquired by the debtor after filing, until the case is closed, dismissed or converted. Funding of the plan may be from the debtor’s future earnings. 11 U.S.C. §§ 1115, 1123(a)(8).
In addition, the plan cannot be confirmed over a creditor’s objection unless it commits all of the debtor’s disposable income over five years. A shorter period is allowed if the plan pays the claim in full, with interest. 11 U.S.C. § 1129(a)(15).