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Subchapter V Lawyer – Small Business Chapter 11 Attorney

• History of Subchapter V
• Advantages of Subchapter V
• Other Advantages of Subchapter V to a Debtor Include:
• How is a Debtor Eligible for Subchapter V?
• The CARES Act Increases the Eligibility for Subchapter V
• Consult With a Bankruptcy Lawyer About Subchapter V
• Why Use Our Office to File a Subchapter V Case?

History of Subchapter V

On August 23, 2019, President Donald Trump signed into law the Small Business Reorganization Act of 2019 (“SBRA” or “the Act”), which became effective on February 19, 2020, and seeks to address issues small business debtors face when reorganizing under the provisions of the United States Bankruptcy Code. The Act creates a new Subchapter V to Chapter 11, which aims to make it easier for small businesses to confirm plans of reorganization by expediting bankruptcy procedures.

Prior to the Act, provisions made it difficult for debtors to confirm a Chapter 11 plan of reorganization. However, Congress came to the rescue of individual debtors through the passage of the SBRA which allows small-business debtors who have secured and unsecured business debts less than $2,725,625 and they are “engaged in commercial or business activities” to qualify for Subchapter V. Under the Coronavirus Aid, Relief and Economic Security act (CARES), Congress increased the debt ceiling for a small business to file under Subchapter V to $7.5 million, ending March 27, 2021. https://businesslawtoday.org/2020/09/individual-chapter-11-cases-new-subchapter-v/

Advantages of Subchapter V

Subchapter V creates a new chapter within Chapter 11 to maintain the traditional Chapter 11 plan without the unnecessary procedural burdens and costs. One of the key aspects of Subchapter V is that it is designated only for the small business debtor, therefore only a debtor can file a plan of reorganization. Most notably, Subchapter V allows small business owner to retain their equity in the business as long as the reorganization plan is fair and reasonable with respect to each class of claims or interests. To ensure this, the SBRA requires that the U.S. Trustee appoint a Subchapter V Trustee to every Subchapter V case to supervise the estate funds as well as clear the way for a mutual plan. https://en.wikipedia.org/wiki/Subchapter_V

Although there are many aspects of the new Subchapter V that are beneficial to a debtor, the most significant is the elimination of the Absolute Priority Rule – a rule governing the order and portion of payments with creditors and shareholders during a business liquidation. The new Subchapter V allows a debtor to confirm a plan over the objection of an unsecured creditor class as long as all “projected disposable income” of the debtor is received in a three-year period, or the value of the property to be distributed under the plan is not less than the “projected disposable income” of the debtor. https://businesslawtoday.org/2020/09/individual-chapter-11-cases-new-subchapter-v/

Other Advantages of Subchapter V to a Debtor Include:

• Plan Exclusivity: Unlike a normal Chapter 11 bankruptcy case, there is no exclusivity period that expires after 120 days with Subchapter V. Furthermore, only the debtor may file a plan in Subchapter V

• Reduced Expenses: There are no U.S. Trustees’ fees in a Subchapter V case nor is a committee of creditors appointed in a Subchapter V case, thus reducing the administrative expenses to the debtor.

• Retention of Counsel Allowed: Generally, in a Chapter 11, the court will not approve retention of the debtor’s counsel. However, Subchapter V has a special rule and allows retention of counsel as long as the debtor’s prepetition fees do not exceed $10,000.

• Plan Modifications: In a Subchapter V, only the debtor may modify a plan. This is a substantial benefit because in a standard individual Chapter 11 case, Section 1127(e) permits the Trustee, the U.S. Trustee, or holders of an allowed unsecured claim to seek modifications, whether that is to increase the amount of plan payments or extend/reduce the time for payments.

• Possible Early Discharge: Subchapter V allows a debtor to obtain a discharge on the effective date of the plan as long as the plan was approved under Section 1191(a) – Confirmation of Plan.  

• Tighter Deadlines to Expedite the Process: A Subchapter V debtor has only 90 days to file a plan. This cuts in half the timing requirement for filing a plan in a typical Chapter 11 case. In addition to the 90-day file plan, the court will request a status conference within 60 days after the order of relief. The debtor must file a notice with the court two weeks prior to that status conference explaining their progress in confirming a consensual plan.  

• Remedies Upon Plan Default: The normal requirements under Chapter 11 do not require remedies to protect creditors. However, Section 1191(c) requires the plan to provide proper solutions to protect the holders of claims in interest in case the planned payments are not made.
  
• Trustee is a Business Person as Opposed to an Attorney or from the U.S. Trustee’s Office: The Trustee appointed to oversee the case is selected from a group of local, private businesspersons as opposed to being chosen from a group of private attorneys (as is true of Chapter 7 and 13 cases) or being a staff attorney at the U.S. Trustee’s Office (as is true in regular Chapter 11 cases). This element introduces a potentially new dynamic into Subchapter V cases which is an understanding an an elevation to the business substance of the case as opposed to the technical compliance side of the case. This new system would better identify business that can reorganize their finances and give such business more of a chance even if they may lag on some technical compliance issues.

How is a Debtor Eligible for Subchapter V?

There are a few conditions that must be met in order for a debtor to be eligible for Subchapter V relief. First and foremost, debt must be incurred in connection with commercial or business operations. Secondly, the debt ceiling of $7.5 million must be met and not less than 50 percent of that debt must be from commercial or business activities. Additionally, for a debtor to proceed under Subchapter V, they must take part in a bankruptcy petition.

The CARES Act Increases the Eligibility for Subchapter V

There is no doubt the current economic decline caused by COVID-19 has resulted in many debtors in need of bankruptcy protection. Thus, Subchapter V was enacted at an appropriate time. The higher debt limits under the CARES Act through March 27, 2021, will increase the number of individuals eligible for the new Subchapter V by providing small businesses a better chance to restructure debt and reorganize.

Consult With a Bankruptcy Lawyer About Subchapter V

The advantages to eligible individuals under Subchapter V are tremendous, particularly the elimination of the Absolute Priority Rule, making it considerably easier for individuals to confirm Chapter 11 plans. However, it’s always important to have a bankruptcy lawyer by your side to ensure the process goes smoothly. The bankruptcy attorneys at The Law Office of Ronald D. Weiss, P.C. can assist you with filing for a Chapter 11 bankruptcy as well as help you get a better understanding of Subchapter V and all its benefits.

Why Use Our Office to File a Subchapter V Case?

Our Law Office does not concentrate only in Chapter 11 and we view both regular Chapter 11 and Subchapter V as useful tools in our pursuit of debt relief for our clients. Therefore we are able to have supplementary and alternative and backup options to Subchapter V in case it cannot deal with every aspect of our client’s financial hardship. That being said if we do decide to file a Subchapter V for your business we are dedicated to represent you in the case with knowledge and experience and will strive to achieve in the Subchapter V case the best results possible which can include a successful plan of reorganization and exit from the case after a confirmed plan of reorganization.

Please call the Law Office of Ronald D. Weiss P.C. at 631-271-3737 for a free consultation regarding Subchapter V.

Our legal consultations are free, but our advice may be invaluable.