CARES Act Bankruptcy Update
Attention Small Business Facing Bankruptcy
This Is Important New Information You Must Know !!!
Posted Below: Several Articles From Multiple Sources
CARES Act Bankruptcy Update
By: Lindsey Emerson Raines and Harry A. Light
The Coronavirus Aid, Relief, and Economic Security Act (CARES) includes several changes to bankruptcy law, including an amendment to the Small Business Reorganization Act (SBRA), which took effect earlier this year. (Read full article here) These temporary modifications are designed to benefit small businesses and individuals who have sought, or plan to seek, relief under the provisions of the U.S. Bankruptcy Code. As many debtors seek payment deferments, these provisions will be important in evaluating the rights and benefits of debtors and creditors this year.
Small Businesses – Subchapter V of Chapter 11
A business may only seek relief under the SBRA if it meets certain requirements. Through the CARES Act, Congress expanded the eligibility for small businesses by increasing the maximum indebtedness for a “small business debtor” to $7.5 million in debt, which is a significant increase from the prior limit of approximately $2.7 million. The new, increased limit will only be applicable to cases filed on or after March 27, 2020, and should revert to the existing limit of $2.7 million for cases filed on or after March 27, 2021.
Individuals – Chapters 7 and 13
For cases filed under Chapter 7 or 13 of the Bankruptcy Code, the CARES Act provides that any payments made by the Federal government relating to the national emergency declared pursuant to the National Emergencies Act due to COVID-19 are exempt from the calculation of “current monthly income.” “Current monthly income” is used, among other things, to determine whether debtors are eligible for relief under certain chapters of the Bankruptcy Code. Additionally, these payments do not constitute “disposable income,” which is required to be committed to a Chapter 13 debtor’s plan. This means that debtors who already have confirmed Chapter 13 plans, as well as those that file Chapter 13 cases in the coming year, will not have to commit any COVID-19 payments to their plan.
Additionally, a Chapter 13 debtor can, subject to court approval, amend his or her confirmed plan if he or she is “experiencing or has experienced a material financial hardship due, directly or indirectly, to the coronavirus disease 2019 (COVID-19) pandemic.” Specifically, the CARES Act provisions permit a Chapter 13 confirmed plan to be modified, subject to court approval, to extend the plan length for up to a total of seven (7) years (compared to the existing maximum period of five (5) years) from the date of the first plan payment under the initially confirmed plan. What constitutes a “material financial hardship” is not defined in the CARES Act and will likely be developed on a case-by-case basis.
The changes to the Bankruptcy Code under the CARES Act will automatically expire on March 27, 2021, if not extended.
The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) was enacted on March 27, 2020.
The CARES Act provides relief for the widespread economic hardship caused by the coronavirus (“COVID-19”). Along with several changes to Chapter 11 reorganizations of small business debtors, the CARES Act also provides short-term relief to individual debtors under Chapter 7 and Chapter 13 of the Bankruptcy Code. The changes are temporary and, if not extended, will expire on March 27, 2021.
The CARES Act will provide many Americans with a one-time payment as an economic stimulus. In Chapter 7 filings, these stimulus payments will be excluded in calculating current monthly income when determining a debtor’s eligibility. Similarly, in Chapter 13 filings, the stimulus payments will be excluded when determining a debtor’s disposable income. The practical effect of these provisions is to prevent the stimulus payments from affecting a debtor’s eligibility to file under either chapter.
The CARES Act also provides relief to Chapter 13 debtors operating under a confirmed plan (as of March 27, 2020). Under the revised Bankruptcy Code provision, the debtor may extend their plan for up to seven years from when the first payment was due under the confirmed plan. But to qualify for this extension, there must be some “material financial hardship” suffered as a direct or indirect result of COVID-19. It remains unclear what courts will consider a “material financial hardship” when granting modifications. But given the extraordinary circumstances caused by COVID-19 to most Americans and the soaring unemployment rates caused by stay-at-home orders, most debtors likely will meet the standard in the court’s eyes.
We will continue to monitor the effects of the CARES Act on consumer bankruptcies, and will be ready to advise you on this and other COVID-19 related issues as they develop. Additional information about how the CARES Act effects Chapter 11 Reorganizations can be found here.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
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Inside the CARES Act: Changes to the Bankruptcy Code Under the CARES Act
The Coronavirus Aid, Relief, and Economic Security (CARES) Act makes important revisions to the United States Bankruptcy Code. The most remarkable change is that it has opened the doors to the Bankruptcy Court for many small businesses.
Small Business Reorganization Act
On February 19, 2020, the Small Business Reorganization Act (SBRA) became effective, which added a new subchapter to the United States Bankruptcy Code. Commonly referred to as Subchapter 5, the SBRA was enacted to reduce the cost and expense for small businesses to reorganize under Chapter 11. To qualify as a debtor under Subchapter 5, the debts of a company must not exceed $2,725,625 (secured and unsecured debts). Section 1113 of the CARES Act increases the debt limit to $7.5. The increased debt limit applies to cases filed after the enactment of the CARES Act and is valid for one year after the CARES Act becomes effective. Thereafter, the debt limit will once again be reduced to $2,725,625.
CARES Act on Bankruptcy Code Subchapter 5
Subchapter 5 creates a streamlined process for a debtor to reorganize and a simpler standard for a debtor to confirm a plan. Under Subchapter 5, a debtor must file a Chapter 11 plan within ninety days of filing for bankruptcy. Costs are reduced based on this timing and as there is no requirement for a debtor to file a Disclosure Statement and no official committee of unsecured creditors. Generally, a plan will be confirmed provided the debtor contributes all disposable income for three to five years to make plan payments. By increasing the debt limit for a debtor to qualify for Subchapter 5, the CARES Act makes a bankruptcy reorganization a viable option for more small businesses.
CARES Act on Chapter 7 and Chapter 13
The CARES Act also provides temporary changes to Chapter 7 and Chapter 13 of the United States Bankruptcy Code. The changes are as follows:
- For purposes of calculating a debtor’s income to determine his or her eligibility for Chapter 7 and Chapter 13, coronavirus-related payments from the federal government are excluded from the analysis.
- Similarly, coronavirus-related payments are not considered in determining a debtor’s disposable income for a Chapter 13 plan of reorganization.
- Lastly, the CARES Act allows Chapter 13 debtors who have already confirmed a plan to modify the plan based on a material financial hardship caused by the pandemic, including extending their payments for seven years after their initial plan payment was due.
The changes apply in pending Chapter 7 and Chapter 13 cases and will be applicable for one year from the effective date of the CARES Act.