Posts Tagged With: lose job

In Bankruptcy – Everybody Loses

Most of my clients come to me concerned about losing stuff – house, cars, one woman was terrified that the Trustee would take her hopelessly spoiled Yorkie. Generally, those fears are not well founded – especially the Yorkie. Yes, sometimes debtors file for bankruptcy with assets that are not exempt, and they do have to turn them over to the Trustee. In Oklahoma that is fairly rare, and the Debtor should know it will happen before the case is filed and his lawyer should discuss with him ways to protect those assets. Still, there are times when filing anyway is still the best option.

Of course, there are other things that debtors lose when they file for bankruptcy – privacy, some pride, the ability to easily incur debt to start a business or buy a house. Although in many cases I think the greatest loss is one of a sense of self-sufficiency. For most people it is a great loss to ask the government for help – for protection, to use a Bankruptcy Code term.

These are things my clients think about. They don’t generally think about what other people are losing when a bankruptcy is filed. Sure, they know that their creditors won’t get paid. Of course, generally those creditors aren’t getting paid anyway; but for most institutional creditors, bankruptcy is an accepted cost of doing business. For smaller creditors and other people connected with a bankruptcy that isn’t as true; and a bankruptcy filing can be a huge loss.

I have recently undertaken the representation of some preferred stock holders in GMX Resources, Inc. GMX Resources, Inc. was a small, publicly traded, oil and gas company based in Oklahoma City that filed a Chapter 11 Bankruptcy two years ago. My clients are being sued to recover dividends that they were paid as stock holders in the period leading up to the GMX bankruptcy filing. You can find a discussion of the relevant cause of action, here. In most cases, my initial contact with these former stock holders is that they lost their entire investment in the company, they shouldn’t have to lose anything else! In fact, several people have told me they almost threw the Summons and Complaint in the trash and done nothing. If they had done so, the Trustee would have taken default judgments against them. Instead, I believe that I can successfully defend these cases.

Of course, on an emotional level I completely understand my clients’ initial reactions. One of the truths of human nature is that it is harder to give up something we have received than to have not received it in the first place or not gain it in the future. Once it is ours, it is OURS!.

On the other hand, if the preferred stock dividends at issue here are actually stock dividends (and I think they were more analogous to debt payments, but that is a conversation for another day), then they should not have been paid if it left the corporation unable to pay its bills. Stock dividends are to be paid out of surplus, not necessary operating funds. The creditors should have had access to that money before the bankruptcy was filed, instead, the creditors weren’t paid, the shareholders were; and the company filed for bankruptcy.

The company filed a bankruptcy to reorganize, but it wound up liquidating. Its general, unsecured creditors (people who had provided goods, services, loans) were owed over $81 MILLION when the case was filed. Most of those creditors will never be paid. Sure, there are a lot of institutional creditors for whom it is an expected part of doing business; but among the long list of creditors is a woman in a suburb of Oklahoma City doing business as a caterer. She was owed over $7,000 – money she will never see. To her, that must have been a catastrophic loss.

Then, there are the ongoing losses. GMX’s employees lost their jobs. The attorneys and accountants and contract firms who did business with GMX all lost a client and valuable source of business. The local economy lost part of its tax base. The business community lost a significant local player.

Everybody lost. That is the price of failure. In personal bankruptcies you have an offsetting win. A personal bankruptcy takes someone who has more debt than he can pay, and converts him into a participating member of the economy again. A personal bankruptcy takes someone who can’t care for himself and his family and converts him into someone who can. A personal bankruptcy creates the freedom to try and to succeed, because without the freedom to fail, no one could ever afford to try. One of the real benefits of the American bankruptcy system is that it isn’t punitive. It allows people to fail and try again. That is the beauty of our fresh start. If Walt Disney had not been able to file for Bankruptcy and try again, central Florida would look very different today!

Corporate bankruptcies can be wonderful things when a company successfully reorganizes. Jobs are saved, assets are made more productive, a valuable member of the business community is restored. Unfortunately, that doesn’t always work; and when it doesn’t – everybody loses.

Elaine

Categories: Bankruptcy, Business Bankruptcy | Tags: , , , , , , , , , | Leave a comment

What If Something Bad Happens During a Chapter 13 Plan?

The answer to the question, what if something bad happens during a Chapter 13 Plan is – call your lawyer. Please notice, I did not say, call the Trustee. Even if you haven’t talked to your lawyer since your case confirmed, at least in the Western District of Oklahoma, your lawyer is still your lawyer until the case concludes, you fire him or the Court allows him to withdraw for some reason. The Trustee does not work for you, your lawyer does. Call your lawyer.

Now, for the rest of the story. Clients come to see me and are nervous about filing a five-year plan. What if something happens? Well, something will happen. It is called life. The problem with answering that question is that the answer is always going to be – that depends. The answer depends on exactly what happens, when it happens, what has or has not been paid in the Chapter 13, where you are in the plan, whether the case is confirmed or not. It just depends.

Losing a job in the last year of a plan is very different from losing one in the first year. Having a house burn down might change how hard you want to fight to save it. (Yes, I have had that happen to a Chapter 13 debtor.) The death of a spouse is just hard – all the way around, and being in a Bankruptcy at the time doesn’t make it easier. Totaling a car means having to get a new one. Divorce complicates a Chapter 13 in ways very few other things do. Regardless, you will have options; and only your lawyer can talk to you about them.

Still, there are some generalities. If you lose a job during a chapter 13, you will want to discuss with your lawyer whether your plan payment can be reduced, whether you should consider converting the case to a Chapter 7, whether you should consider seeking a loan modification on your mortgage, maybe you want to talk about whether or not you can sell the house. Maybe you should dismiss the chapter 13 with an eye towards refiling when you have found new employment. Maybe staying in with the smallest possible plan payment makes more sense. Maybe the best answer is some combination of the above.

Dealing with a Chapter 13 that has gotten into trouble is relatively easy when there is some flexibility in the plan. The worst cases are the ones where the Debtor was a year behind on his mortgage when the case was filed. The plan is all about saving the house. There is virtually nothing besides the house and the car getting paid in the plan, the plan payment was a real reach for the debtor before he lost his job, he is already at a full 60 months – and he loses his job. Well, you can’t extend that plan term. You can’t reduce the payment without giving up either the house or the car, because there is nothing else there. You can get the debtor a little bit of time to find a new job, but every plan payment he misses is going to increase the remaining payments – which were a stretch to begin with, before he lost his job. So, after three or four months the Debtor finds a new job that pays less than the old one, he is now three or four months behind on his plan payment. The remaining payments will have to go up to cover that, and he can’t do it. In that case, sometimes the best option is to dismiss and refile.

I want you to notice, though, that even with the facts above; there was still an option. Dismissing and refiling may not sound too fun after three or four years in a plan. The last thing you really want to do is start over, but at least in this case it means starting over with a much smaller mortgage arrearage than you had to deal with in the first place, and you get a whole new 60 months to cure it. It isn’t a great solution, but it can make the difference between saving a house and losing it.

So, if life hands you more than you can handle during your plan term. Call your lawyer. You will have options. They may not be wonderful, but you will have some. Oh, and don’t be surprised if your lawyer’s first suggestion is that you try to sit tight until you find a new job. You will always have more and better options employed than not.

Elaine

Categories: Bankruptcy, Divorce, Mortgages and Foreclosure | Tags: , , , , , , , , , , , | Leave a comment

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