What is the Small Business Reorganization Act? (SBRA)

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For years, small business debtors struggled to reorganize effectively after filing for Chapter 11 Bankruptcy. However, the signing into law of the Small Business Reorganization Act of 2019 (SBRA) aims to address some of these issues. SBRA (aka new Chapter 11v) will strike a balance between chapters 7 and 11 bankruptcies for small-business debtors. As such, it will make small business bankruptcy processes faster and less expensive.

Apart from lowering the cost of filing for Chapter 11v bankruptcy, the act also streamlines the reorganization plan confirmation process. As a result, small businesses can survive bankruptcy and retain operational control.

What is the Small Business Reorganization Act (SBRA)?

Legal commentators had long lamented the high costs and complexities of chapter 11 bankruptcy and the toll it took on small businesses’ ability to reorganize successfully. In response, Congress legislated and passed the Bankruptcy Code amendments called the Small Business Reorganization Act (SBRA). President Donald Trump signed SBRA into law on August 23, 2019 and was enacted on February 19, 2020.

The Difference between Chapter 7 and new Chapter 11v

Before SBRA, struggling businesses that considered bankruptcy faced two options: Chapter 11 or Chapter 7.

1. Chapter 7

Upon filing, the court creates a bankruptcy estate comprised of a debtor’s nonexempt property. The U.S. Trustee then appoints a trustee and tasks him or her with liquidating the assets of the debtor (bankruptcy estate) and distribute the proceeds to creditors. It’s not an option for a business that hopes to survive bankruptcy and retain operational control over its affairs.

2. Chapter 11

Under chapter 11, a debtor retains control over his or her business operations and restructures all debts through a court-approved plan. However, the operational control that the debtor maintains is contingent on increased oversight from the U.S. Trustee and the bankruptcy court.

The debtor’s plan to repay debts is subject to the bankruptcy court’s stringent requirements. What’s more, the court must confirm (approve) everything before allowing the debtor to exit bankruptcy. Throughout the bankruptcy period, the debtor must obtain the court’s approval of non-ordinary business transactions. They must also comply with all the monthly reporting requirements of the U.S. Trustee. A plan of reorganization had to be voted on by the creditors after filing a comprehensive disclosure statement for reorganization.

As a result, many small businesses could not afford chapter 11 costs, and they found the requirements challenging to keep.

Why the Need for SBRA?

The new Chapter 11v SBRA strikes a balance between chapter 11 and chapter 7. Under the Chapter 11v some debtors could retain control over their daily business operations while reorganizing. Fortunately, they won’t be subject to the costly requirements in regular chapter 11. In short, many of the amendments of the SBRA will streamline the plan confirmation processes and potentially reduce their total costs.

Provisions of the Small Business Reorganization Act (SBRA)

The new Chapter 11v SBRA contains several key provisions intended to simplify and streamline the small business reorganization process and reduce costs. They include the following:

Appointment of a Trustee

The U.S. Trustee will appoint a trustee to each small-business debtor case whose functions and duties are similar to those of a chapter 13 trustee. They will also help ensure the reorganization process stays on track. While the small business owner will have authority over the daily operations, the trustee will perform specific oversight functions such as payments administration under a confirmed plan.

No Creditor Committees

It further provides that there will not be an appointment of a committee of creditors unless the bankruptcy court orders one for cause. It will decrease the costs associated with the regular chapter 11 since, after the appointment of a creditor committee, it can decide to hire its professionals at the expense of the debtor.

No Disclosure Statement

SBRA does not require disclosure statements. However, the debtor’s plan must include information generally found in a disclosure statement, such as a liquidation analysis, summary of historical operations, and projections that demonstrate an ability to make all payments under the proposed plan.

No Potential Competing Plans

The SBRA permits only debtors to file plans of reorganization. Thus, the debtor reserves the exclusive right to file their plan within 90 days from the bankruptcy petition date, unless extended for cause.

No Absolute Priority

Debtors need not observe the absolute priority rule that generally prohibits business owners from retaining equity unless creditors are paid in full. What’s more, the confirmation of plans is possible despite the objection of one or more impaired creditor classes.

To obtain such conformation through a “cramdown,” the debtor need only demonstrate that their plan is fair, equitable, doesn’t unfairly discriminate, and it provides for the contribution of all the projected disposable income of the debtor.

Discharge Provisions

After the confirmation of a debtor’s plan with the consent of the affected creditors, they will receive a discharge of their debts upon plan confirmation.

Deferral of Administrative Expense Payments

Debtors can differ administrative expense payments over the life of the reorganization plan for up to five years. These expenses are typically due on the effective date of the reorganization plan.

Residential Mortgage Modification

The SBRA authorizes small business debtors to modify residential real estate mortgages to the extent that loan proceeds go into the business. Such relief was previously unavailable.

The Bottom Line

For years, the benefits of the regular Chapter 11 reorganization were elusive to small business debtors due to their size, their limited financial resources, as well as the requirements and expense of filing for bankruptcy. The Small Business Reorganization Act (SBRA) attempts to remedy a lot of these challenges to ensure successful small business reorganizations.

The Chapter 11v SBRA’s elimination of potential competing plans and disclosure statements will prevent contested hearings that only prolong the reorganization process while increasing costs for debtors. It also relaxes the requirements to confirm plans over creditors’ objections provided they are fair, equitable, and don’t discriminate unfairly.

Ultimately, by lowering reorganization costs and simplifying plan confirmation processes, the Chapter 11v SBRA aims to provide a suitable option for small businesses that wish to reorganize.

When you feel like your small business debts have taken control of your life, Philadelphia bankruptcy attorneys Cibik & Cataldo, P.C., can help you find the right bankruptcy option. Contact us or call us today at (215) 735-1060 and start your journey to financial freedom.

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Repossession Laws in Philadelphia, Pennsylvania

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Thousands of Pennsylvanians owe money to a bank, finance company, or creditor. The lender, when providing funds, often has a security interest in property owned by the borrower — a phenomenon known as collateral.

Having this security interest provides protection to the creditor in the event the borrower doesn’t repay the loan, allowing them to repossess (or take back) the collateral. Two of the most common forms of secured borrowing are for vehicles and real estate. Read on to learn more about repossession laws in Philadelphia, Pennsylvania.

How can a creditor lawfully repossess property and how can borrowers protect themselves?

Creditors are not allowed to just walk into the borrower’s home and take property. Retrieving collateral must be done peacefully. This means that the borrower can tell the creditor “no” and deny them access to their home. In fact, if the creditor persists after being told “no,” they are breaking the law. If this point has been reached, the creditor must go to court.

This may buy the borrower some time to stop the proceedings, but if the creditor is successful, it’s also possible that the amount owed will increase. Moreover, property can’t be taken back without a written and signed security agreement that has a clear identification of the collateral in the event of non-payment. If the law is broken, the borrower can sue the creditor in a court of law.

Does the creditor have to give a warning prior to a repossession?

In most cases, no warning is required, but there are two exceptions. If the collateral is a mobile home, it cannot be repossessed without a 30-day written notice and an opportunity to catch up payments and fees associated with contract violation to prevent repossession.

The borrower can prevent repossession of a mobile home even after the 30-day warning has passed, but it may cost more in court costs and attorney fees. In other cases of collateral, excluding a vehicle, a 21-day notice is required to give the borrower the opportunity to catch up on their payments and prevent repossession by the creditor.

What happens after repossession?

After the creditor repossesses the collateral, they’ll likely try to sell it. However, the borrower must be given written notice of the location and time of sale. Especially in the case of real estate, it’s a good idea to attend the sale to ensure it was done in the best possible manner to get the best outcome. This is because the sale will be applied to the debt, so it is in the best interest of the borrower to make sure that it’s done right.

If the collateral is sold during an auction, the borrower can take interested parties and get written bids for the creditor. Even through this process, prior to sale, it is possible to retain the property if the past-due payments are made or an agreement is made with the creditor. If the collateral was a vehicle, the borrower can get their personal property back from it after repossession.

What happens if the sale isn’t enough to cover the debt?

If the collateral is sold, but not enough is paid to pay off the debt, the borrower may still have to pay the amount due, even if the property was voluntarily given up. For example, if the borrower owes $15,000 on a vehicle, but the creditor only gets $12,000, the borrower may still be liable for the last $3,000.

If the repossession is done legally and the borrower doesn’t pay the balance, the creditor has the legal right to sue the borrower for payment. If the borrower is sued, legal consultation is important because there’s a very short time period to respond. If the repossession is not done legally, the borrower may not have to pay the balance and may have the right to sue the creditor.

Can creditors repossess other property?

No. Creditors can only repossess the agreed-upon collateral. However, if the creditor sues the borrower and wins the case, a sheriff or constable can come take other property to repay the debt.

How can repossession be avoided?

To begin with, borrowers need to be aware of their financial situation. Thus, the most important step to avoid repossession is to avoid becoming overwhelmed financially. When purchasing something that requires a collateral, the borrower needs to ensure they can cover the payment if there are income fluctuations. Just as importantly, the borrower needs to know how much they can afford to buy. This means that the borrower must be resistant to pressure to purchase something outside of their range, such as a fancier vehicle that will significantly increase the balance. The same is true when buying real estate. If the borrower can only afford and only needs a 2-bedroom house, they shouldn’t get a 3-bedroom house. Borrowers also need to be aware of the interest rate and additional fees, as well as the reason for the additional fees.

It’s also important that borrowers communicate problems with creditors. If creditors know ahead of time, they’re more likely to be lenient to help resolve the issue, such as extending repayment or refinancing the loan. It’s also possible that creditors will allow the borrower to repay the back debt over periods of new payments, such as an additional 10% on top of the regular payment for 10 months. In some cases, a Chapter 13 bankruptcy is the best option to avoid repossession and resolve credit problems. However, this requires a specialized lawyer. There are many different options and the borrower must decide the best one for their specific situation.

Regardless of the situation, the law changes frequently, not only at the federal level, but also at the local level. Moreover, each case is different and should be approached as such. While general information, such as found in this blog, is invaluable, it doesn’t take the place of legal advice regarding specific situations. If you’re facing a repossession, contact us to see how we can help you protect your property and rights.

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