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List of Forms by Chapter - Chapter 1 — Overview of the Bankruptcy Code and System
- I. [1.1] Scope of Chapter
- II. [1.2] Introduction to the Bankruptcy Code
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III. [1.3] The Bankruptcy Rules - [1.4] Part I — Commencement of Case; Proceedings Relating to Petition and Order for Relief
- [1.5] Part II — Officers and Administration; Notices; Meetings; Examinations; Elections; Attorneys and Accountants
- [1.6] Part III — Claims and Distribution to Creditors and Equity Interest Holders; Plans
- [1.7] Part IV — The Debtor: Duties and Benefits
- [1.8] Part V — Bankruptcy Courts and Clerks
- [1.9] Part VI — Collection and Liquidation of the Estate
- [1.10] Part VII — Adversary Proceedings
- [1.11] Part VIII — Appeals to District Court or Bankruptcy Appellate Panel
- [1.12] Part IX — General Provisions
- IV. United States Trustee System
- V. [1.18] Employment and Compensation in Bankruptcy Cases
- VI. Jurisdiction, Venue, Appeals
- [1.23] History
- [1.24] The Present System — Core Proceedings vs. Related Proceedings
- [1.25] Related Proceedings
- [1.26] Related Proceedings Heard by the Bankruptcy Court by Consent of the Parties
- [1.27] Withdrawal of Reference
- [1.28] Mandatory Withdrawal
- [1.29] Permissive Withdrawal
- [1.30] Limitation on Jurisdiction
- [1.31] Abstention
- [1.32] Removal of Pending Proceedings to the Bankruptcy Court
- [1.33] Venue in Bankruptcy Cases
- [1.34] Related Proceedings
- [1.35] Change of Venue
- Appeals
- [1.36] Jurisdiction
- [1.37] Standard of Review
- [1.38] Appellate Procedure
- [1.39] Jury Trials
- Chapter 2 — Consequences of Bankruptcy and Out-of-Court Alternatives
- I. [2.1] Introduction
- II. [2.2] Chapter 7 Bankruptcy Proceedings
- III. [2.3] Chapter 11 Reorganizations
- IV. [2.4] Chapter 12 and the Family Farmer or Fisherman
- V. [2.5] Chapter 13 Cases
- VI. [2.6] Chapter 15 Cases
- VII. [2.7] Out-of-Court Composition Plans
- VIII. [2.8] Assignments for the Benefit of Creditors
- Chapter 3 — Section 541: Property of the Estate
- I. [3.1] Introduction
- II. [3.2] Applicable Law
- III. Section 541(a): Property Included in the Bankruptcy Estate
- [3.3] Section 541(a)(1): Legal and Equitable Interests of the Debtor in Property
- [3.4] Effect of Conversion of Bankruptcy Case
- Application to Specific Types of Property or Interests of the Debtor
- [3.5] Exempt Property
- [3.6] Insurance
- [3.7] Encumbered Property
- [3.8] Contracts
- [3.9] Letters of Credit
- [3.10] Tax Refunds and Credits
- [3.11] Deposits
- [3.12] Agency
- [3.13] Security deposit
- [3.14] Escrow funds
- [3.15] Tax accounts
- [3.16] Bonds
- [3.17] Licenses and Permits
- [3.18] Retainers
- [3.19] Legal Claims
- [3.20] Real Estate Commissions
- [3.21] Social Security Benefits
- [3.22] Section 541(a)(2): Community Property
- [3.23] Sections 541(a)(3) and 541(a)(4): Property Recovered or Preserved for Benefit of or Ordered Transferred to Estate
- [3.24] Section 541(a)(5): Entitlements Within 180 Days After Filing Petition
- [3.25] Section 541(a)(6): Proceeds from Estate Property
- [3.26] Section 541(a)(7): Interests Acquired Postpetition by the Estate
- IV. Section 541(b): Property Excluded from the Bankruptcy Estate
- V. Section 541(c): Restricted or Conditioned Interests
- VI. [3.33] Section 541(d): Property in Which Debtor Holds Only Legal Title
- VII. [3.34] Section 541(f)
- Chapter 4 — Proofs of Claim, Priorities, and Distribution
- I. Definitions
- II. Proofs of Claim and Interest
- [4.3] General Considerations
- [4.4] Why Not To File a “Routine” Proof of Claim
- [4.5] Chapter 7 Liquidations
- [4.6] Chapter 11 Reorganizations
- [4.7] Chapter 12 Family Farmer Debt Adjustments
- [4.8] Chapter 13 Debt Adjustments
- [4.9] Proof of Interest Filed by Equity Security Holder or Proof of Right to Record Status Filed by Transferee of Security
- [4.10] Form and Content of Proof of Claim
- [4.11] Where To File Proof of Claim
- [4.12] Amendment of Proof of Claim
- [4.13] Withdrawal of Claim
- [4.14] Filing a Proof of Claim on the Creditor’s Behalf
- III. Allowance of Claims and Interests
- [4.15] General Considerations
- [4.16] Objections to Claims
- [4.17] Burdens of Proof
- [4.18] Disallowance and Limitation of Claims
- [4.19] Unenforceable Claims Against the Debtor
- [4.20] Claims for Unmatured Interest
- [4.21] Property Tax Claims
- [4.22] Insiders’ Claims
- [4.23] Unmatured Alimony, Maintenance, or Support Claims
- [4.24] Landlords’ Claims
- [4.25] Claims for Breach of Employment Contracts
- [4.26] Employment Tax Claims
- [4.27] Tardily Filed Claims
- [4.28] Estimation of Contingent or Unliquidated Claims
- [4.29] Offset Claims
- [4.30] Prepetition
- [4.31] Postpetition
- [4.32] Avoidable Transfers
- [4.33] Postpetition Claims
- [4.34] Claims Agents
- [4.35] Claims Trading
- IV. Treatment of Secured Claims
- V. Claims of Codebtors
- VI. [4.43] Distributions Received by Creditors Outside the Bankruptcy Case
- VII. Reconsideration and Subordination of Claims
- VIII. Priority Claims — Bankruptcy Code §507
- [4.46] Overview
- [4.47] Bankruptcy Code §507(a)(1) — Domestic Support Obligations
- Bankruptcy Code §507(a)(2) — Administrative Expenses, Fees, and Charges
- [4.48] General Considerations
- [4.49] Preservation Costs, Taxes, Fines, and Penalties
- [4.50] Preservation Costs — Bankruptcy Code §503(b)(1)(A)
- [4.51] Taxes — Bankruptcy Code §503(b)(1)(B)
- [4.52] Fines and Penalties — Bankruptcy Code §§503(b)(1)(C) and 503(b)(1)(D)
- [4.53] Compensation of Officers — Bankruptcy Code §503(b)(2)
- [4.54] Expenses Incurred by Creditors — Bankruptcy Code §503(b)(3)
- [4.55] Compensation — Bankruptcy Code §§503(b)(4) and 503(b)(5)
- [4.56] Fees and Mileage — Bankruptcy Code §503(b)(6)
- [4.57] Rejection Damages on Assumed Leases — Bankruptcy Code §503(b)(7)
- [4.58] Closing of a Healthcare Business — Bankruptcy Code §503(b)(8)
- [4.59] Seller’s Failing To Reclaim Goods Prepetition — Bankruptcy Code §503(b)(9)
- [4.60] Bankruptcy Code §507(a)(3) — Involuntary Petition Gap Creditors
- [4.61] Bankruptcy Code §507(a)(4) — Wage Claims
- [4.62] Bankruptcy Code §507(a)(5) — Contributions to Employee Benefit Plan
- [4.63] Bankruptcy Code §507(a)(6) — Grain Producers and United States Fishermen
- [4.64] Bankruptcy Code §507(a)(7) — Consumer Creditors
- [4.65] Bankruptcy Code §507(a)(8) — Taxes
- [4.66] Bankruptcy Code §507(a)(9) — Federal Depository Institutions Regulatory Agency
- [4.67] Bankruptcy Code §507(a)(10) — Personal Injury Claims Arising from the Operation of a Motor Vehicle or Watercraft While Intoxicated
- [4.68] Bankruptcy Code §507(b) — Superpriority Claims
- [4.69] Bankruptcy Code §§507(c) and 507(d) — Erroneous Tax Refund and Subrogation
- IX. Distribution of Property of the Estate — Bankruptcy Code §726
- Chapter 5 — Trustee’s Responsibilities and Avoiding Powers in Business Bankruptcies
- I. [5.1] Introduction
- II. [5.2] Trustee’s Duties
- Appointment
- [5.3] Interim Trustee
- [5.4] Chapter 7 Trustee Election
- [5.5] Chapter 11 Trustee Appointment
- [5.6] Chapter 11 Trustee Election
- Specific Statutory Duties
- [5.7] Statutory Duties of Chapter 7 Trustee
- [5.8] Statutory Duties of Chapter 11 Trustee
- Examination and Investigation of Debtor
- [5.9] Section 341 Meeting
- [5.10] Rule 2004 Examination
- [5.11] Retention of Professionals
- Administration of Assets
- [5.12] Operating Business
- [5.13] Liquidating Assets
- [5.14] Abandonment
- [5.15] Litigation
- [5.16] Objection to Claims
- Closing the Case
- Filing of Tax Returns
- [5.17] Income Taxes
- [5.18] Employment Taxes
- [5.19] Filing of Final Reports
- III. Avoiding Powers
- Introduction
- [5.20] Trustee
- [5.21] Debtor-in-Possession
- [5.22] Third-Party Avoidance Actions
- [5.23] Trustee as a Judicial Lien Creditor
- [5.24] Preferences
- [5.25] Elements of Preferential Transfers
- [5.26] Defenses
- [5.27] New Value
- [5.28] Ordinary Course
- [5.29] Other Amendments
- [5.30] Other Defenses
- [5.31] Fraudulent Transfers
- [5.32] Actual Fraudulent Transfers (11 U.S.C. §548(a)(1)(A))
- [5.33] Constructive Fraudulent Transfers (11 U.S.C. §548(a)(1)(B))
- [5.34] Good-Faith Transferee Defense to Fraudulent Transfers (11 U.S.C. §548(c))
- [5.35] Other Fraudulent Transfer Issues
- [5.36] Unauthorized Postpetition Transfers
- [5.37] Recovery of Avoided Transfers
- Chapter 6 — Advising Business Debtors: Alternatives to Bankruptcy
- I. [6.1] Introduction
- II. [6.2] The Attorney’s Role
- III. [6.3] The Workout Alternatives
- [6.4] Advantages of the Workout
- [6.5] Disadvantages of the Workout
- [6.6] The Workout Process
- [6.7] Analyzing the Problem
- [6.8] Determining Who Should Participate in the Analysis
- [6.9] Meeting with Trade Creditors
- [6.10] Types of Written Agreements
- [6.11] Standstill Agreements
- [6.12] Composition Agreements
- [6.13] Extension Agreements
- [6.14] Combination Agreements
- [6.15] Assignment for the Benefit of Creditors
- IV. [6.16] The Shutdown Alternatives
- V. [6.20] State Law Dissolution Procedures
- VI. [6.21] Conclusion
- VII. Appendix
- Chapter 7 — Illinois Common-Law Assignments for the Benefit of Creditors
- Chapter 8 — Involuntary Bankruptcy
- I. [8.1] Introduction
- II. [8.2] Filing an Involuntary Petition
- III. [8.6] Eligible and Ineligible Debtors
- IV. [8.12] Requirements for Petitioning Creditors
- [8.13] Status as a “Creditor”
- [8.14] Noncontingent Claims as to Liability
- [8.15] Claims Not Subject to Bona Fide Disputes
- [8.16] Burden of Proof
- [8.17] Objective Test for Determining Whether a Dispute Is “Bona Fide”
- [8.18] Depth of Analysis Required by Bankruptcy Court in Determining the Existence of a Bona Fide Dispute
- [8.19] Bona Fide Disputes as to Liability or Amount
- [8.20] Examples of Bona Fide Disputes
- V. [8.21] Number of Petitioning Creditors and Amounts of Claims
- Calculating the Required Number of Petitioning Creditors
- [8.22] Number of Petitioning Creditors
- [8.23] Disputing the Number of Petitioning Creditors
- [8.24] Entities Excluded from the Number of Petitioning Creditors
- [8.25] Withdrawal of Petitioning Creditors
- [8.26] Joinder of Petitioning Creditors
- [8.27] Timing for Joinder
- [8.28] Bad-Faith Bar to Joinder
- [8.29] Aggregate Amount of Claims
- [8.30] Involuntary Petitions Against Partnerships
- VI. [8.31] Grounds for Involuntary Relief
- VII. [8.34] Order for Relief
- VIII. Other Important Considerations When Filing an Involuntary Case
- IX. Assignments for the Benefit of Creditors and Involuntary Cases Under the Bankruptcy Code
- Chapter 9 — Business Chapter 7 Cases
- I. [9.1] Scope of Chapter
- II. Alternatives to Filing, Initial Considerations, and Advantages of Bankruptcy
- [9.2] Alternatives to Filing; Attorney’s Role
- [9.3] Initial Considerations
- [9.4] Advantages of Bankruptcy
- [9.5] Stay of Proceedings
- [9.6] Avoidance Powers
- [9.7] Priority Scheme
- [9.8] Limits on Claims
- [9.9] Executory Contracts and Unexpired Leases
- [9.10] Sale of Assets
- [9.11] Factors That May Increase Chapter 7 Filings
- III. Preliminary Issues and Filing the Petition
- IV. [9.15] Particular Statutory Directives
- V. [9.20] Impact on Trustee’s Obligations and Powers
- [9.21] Operation of a Debtor’s Business — In General
- [9.22] Operation of a Debtor’s Business — Postpetition Financing
- [9.23] Actions by Trustee Against General Partners of Partnership Debtor
- Miscellaneous Obligations of the Trustee Involved in a Business Chapter 7 Case
- [9.24] Duty To Investigate
- [9.25] Duty To Preserve, Maintain, and Secure Property of the Estate
- VI. [9.26] Ethical Responsibilities and Issues — Conflicts of Interest
- VII. [9.27] Conclusion
- Chapter 10 — Representing the Chapter 11 Debtor
- I. [10.1] Introduction
- II. [10.2] First Steps
- III. [10.11] The Chapter 11 Case
- [10.12] Prepackaged, Prearranged, or Free-Fall Chapter 11
- [10.13] Venue Considerations
- First Day Motions
- [10.14] Overview
- [10.15] Joint Administration of Related Cases
- [10.16] Extension of Time To File Schedules, Statements, and Lists
- [10.17] Retention of Debtor’s Counsel
- [10.18] Retention of Debtor’s Other Professionals
- [10.19] Interim Compensation and Reimbursement of Professionals
- [10.20] Retention of Ordinary Course Professionals
- [10.21] Continue Cash Management System
- [10.22] Wages and Employee Benefits
- [10.23] Customer Programs
- [10.24] Essential Trade Creditors
- [10.25] Shipping
- [10.26] Sales and Use Tax
- [10.27] Utilities
- [10.28] Key Employee Retention Plan
- [10.29] Debtor-in-Possession Financing and Cash Collateral
- After the First Days: Potential Calm/Potential Litigiousness
- [10.30] The Calm
- The Storm
- [10.31] Conversion and Dismissal
- [10.32] Motion To Terminate Exclusivity
- [10.33] Motion for Relief from Stay
- [10.34] Executory Contracts
- [10.35] Avoidance Powers
- [10.36] Claims Administration
- [10.37] Section 363 Sales
- Getting Close to the Finish Line
- [10.38] Formulation of a Plan
- [10.39] Approval of a Disclosure Statement
- [10.40] Voting on the Plan
- Confirmation of the Plan
- [10.41] Legal Requirements
- [10.42] Practical Considerations — Another Word About Valuation
- IV. [10.43] Showtime — Post-Confirmation and Plan Enforcement
- V. [10.44] Conclusion
- Chapter 11 — Representing the Secured Creditor and Adequate Protection
- I. [11.1] Introduction
- II. [11.2] Creation of the Bankruptcy Estate and the Obligation To Turn Over Property of the Estate to the Debtor
- III. Effect of the Bankruptcy Filing on Secured Creditor’s Rights in After-Acquired Property
- [11.3] General Rule of Bankruptcy Code §552(a) — Applicable to Agreed Security Interests Only
- [11.4] Exception of Bankruptcy Code §552(b)(1) — When Security Agreement and Applicable Nonbankruptcy Law Cover Proceeds
- [11.5] Exception of Bankruptcy Code §552(b)(2) — When Security Agreement Covers Rents or Hotel Room Revenues
- [11.6] Exceptions in Bankruptcy Code §552(b) Do Not Apply in Certain Circumstances
- [11.7] Commingled Proceeds
- IV. [11.8] Commencement of the Bankruptcy Case and the Impact of the Automatic Stay on the Secured Creditor
- V. [11.12] Avoidance of Unperfected Liens — Hypothetical Lien Creditor
- VI. Bifurcation and Lien-Stripping of the Secured Creditor’s Claim
- VII. Claims Assessed Against, or Allowed as Secured Claims of, the Secured Creditor Under Bankruptcy Code §506
- [11.18] Charging Secured Creditor for Certain Administrative Expenses Under Bankruptcy Code §506(c)
- [11.19] Interest, Fees, and Costs of Secured Creditors Allowed Under Bankruptcy Code §506(b)
- [11.20] Attorneys’ Fees
- [11.21] Default Interest
- [11.22] Prepayment Charges
- [11.23] Late Charges
- [11.24] Interest on Bankruptcy Code §506(b) Charges
- [11.25] Appraisal Fees and Expenses
- [11.26] Management and Consultants’ Fees
- VIII. [11.27] Adequate Protection
- IX. Impact of a Bankruptcy Code §363 Asset Sale on a Secured Creditor
- X. Other Rights, Remedies, or Concerns of the Secured Creditor During the Administration of the Bankruptcy Case
- [11.41] Dismissal of Case or Conversion to Chapter 7 Liquidation
- [11.42] Appointment of Trustee or Examiner
- [11.43] Appointment of Trustee
- [11.44] Appointment of Examiner
- [11.45] Relief from Automatic Stay
- [11.46] Marshaling Assets
- [11.47] Filing and Assignment of Claims
- Special Tax Lien Considerations for the Secured Creditor
- [11.48] 45-Day Rule
- [11.49] Subordination of Tax Liens upon Conversion to Chapter 7
- XI. [11.50] Treatment of Secured Claims Under a Chapter 11 Plan
- [11.51] Conclusiveness of a Confirmed Plan
- [11.52] Classification of Secured Claims
- [11.53] Cramdown of Claims
- [11.54] Present Value of Secured Claims
- [11.55] Specific Treatment of Secured Claim Under Plan
- [11.56] Negative Amortization
- [11.57] Sales of Assets Under Plan
- [11.58] Valuations Related to Plan
- Strategies of Secured Creditors Under Plan
- [11.59] Election Under Bankruptcy Code §1111(b)
- [11.60] Adherence to the Absolute-Priority Rule
- [11.61] Competing Chapter 11 Plans
- [11.62] Collateral Estoppel
- XII. [11.63] Conclusion
- Chapter 12 — Postpetition Financing
- Chapter 13 — Representing the Official Committee of Unsecured Creditors
- I. [13.1] Purpose of the Committee
- II. Formation and Composition of the Committee
- III. Governance of the Committee
- IV. [13.10] Retention of Professionals
- V. [13.11] Disclosure Requirements to Unsecured Creditors
- VI. [13.17] Fiduciary Duty of Committee Members
- VII. [13.18] Limited Immunity of Committee Members from Lawsuits
- VIII. [13.19] Rights and Duties of the Committee
- IX. [13.20] Role of the Committee During the Chapter 11 Case
- X. [13.27] Dissolution of the Committee
- XI. Appendix — Forms
- Chapter 14 — Executory Contracts and Unexpired Leases
- I. Introduction and Definitions
- II. Standards for Allowing Assumption and Rejection
- III. Time Limitations for Assumption or Rejection
- IV. Performance Pending Assumption or Rejection
- V. Assumption and Assignment of Executory Contracts and Unexpired Leases
- VI. [14.21] Agreements That Are Not Assumable or Assignable
- VII. Issues Related to Rejection of Executory Contracts and Unexpired Leases
- VIII. [14.27] Debtor as Lessor
- IX. Rejection of Intellectual Property Contracts
- X. [14.31] Conclusion
- Chapter 15 — Attorneys’ Fees in Chapter 11 Cases
- I. [15.1] Introduction
- II. [15.2] Retention
- [15.3] Retention of Debtor’s Bankruptcy Counsel
- [15.4] Reasonably Necessary
- [15.5] Disinterested
- [15.6] Holding No Adverse Interest
- [15.7] Concurrent Representation of Both the Debtor and a Creditor
- [15.8] Debtor’s Special Purpose Counsel
- [15.9] Committee’s Counsel
- Application Process
- [15.10] Retention Application Contents
- [15.11] Nunc Pro Tunc Orders
- [15.12] Additional Required Disclosure of Attorneys Representing Debtors
- [15.13] Sanctions
- III. [15.14] Compensation and Fee Applications
- [15.15] Necessary Services and Expenses
- [15.16] Reasonable Compensation
- [15.17] Lodestar Approach
- [15.18] Johnson Factors
- [15.19] Contingent-Fee Agreements
- [15.20] Fee Enhancements
- [15.21] Treatment of Specific Activities
- [15.22] Overhead Costs
- [15.23] Travel Time
- [15.24] Meals
- [15.25] Office Conferences
- [15.26] Fee Application Preparation and Defense
- [15.27] Copying Expenses
- [15.28] Form of Interim and Final Applications
- [15.29] Local Practice in the Northern District of Illinois
- [15.30] Cover Sheet
- [15.31] Narrative Summary
- [15.32] Detailed Statement of Services
- [15.33] Sanctions
- [15.34] Additional Requirements Relating to Federal Rule of Bankruptcy Procedure 2016 Disclosures
- [15.35] Local Practice in the Southern District of Illinois
- [15.36] Local Practice in the Central District of Illinois
- [15.37] Disgorgement of Interim Compensation and Holdbacks
- [15.38] Fee Applications in Mega Cases
- [15.39] Timekeeping
- [15.40] Prepetition Retainers
- Chapter 16 — Special Problems in Dealing with the Farm Debtor
- Chapter 17 — The Chapter 11 Plan, Confirmation, and Cramdown
- I. [17.1] Scope of Chapter
- II. [17.2] Who May File and Solicit a Plan
- III. Approval of Disclosure Statement and Solicitation
- [17.3] Disclosure Statement Requirements
- [17.4] Solicitation Mechanics
- [17.5] Notice Requirements Under Federal Rule of Bankruptcy Procedure 3017(d)
- [17.6] Transmission of the Plan and the Disclosure Statement to Beneficial Holders
- [17.7] Forms of Ballots
- [17.8] Voting in “Prepackaged” Cases
- [17.9] Securities Regulations
- [17.10] Voting Requirements
- IV. [17.11] Contents of a Plan
- Requirements of Bankruptcy Code §1129(a)
- [17.12] Section 1129(a)(1) — Plan Complies with the Applicable Provisions of the Bankruptcy Code
- [17.13] Bankruptcy Code §1122 — Classification
- [17.14] Bankruptcy Code §1123(a)
- [17.15] Impairment
- [17.16] Same treatment within a class
- [17.17] Means for implementation
- [17.18] Bankruptcy Code §1123(b)
- [17.19] Impairment
- [17.20] Executory contracts and unexpired leases
- [17.21] Settlement or retention of litigation claims
- [17.22] Sale of assets
- [17.23] Section 1129(a)(2) — The Proponents of the Plan Have Complied with the Applicable Provisions of Title 11
- [17.24] Section 1129(a)(3) — Good Faith
- [17.25] Section 1129(a)(4) — All Payments To Be Made by the Debtors in Connection with Case Subject to the Approval of the Court
- [17.26] Section 1129(a)(5) — Disclosure of All Required Information Regarding Post-Confirmation Management and Insiders
- [17.27] Section 1129(a)(6) — Regulatory Rates
- [17.28] Section 1129(a)(7) — Best Interests of Creditors
- [17.29] Section 1129(a)(8) — Acceptance by the Requisite Classes of Creditors and Interest Holders
- [17.30] Section 1129(a)(9) — Payment of Priority Claims
- [17.31] Section 1129(a)(10) — Acceptance by at Least One Impaired, Non-Insider Class
- [17.32] Section 1129(a)(11) — Feasibility
- [17.33] Section 1129(a)(12) — Payment of Statutory Fees
- [17.34] Section 1129(a)(13) — Continuation of the Reorganizing Debtors’ Obligations To Pay Retiree Benefits
- [17.35] Section 1129(a)(14) — Domestic Support Obligations
- [17.36] Section 1129(a)(15) — Disposal Income Test
- [17.37] Section 1129(a)(16) — The Plan Complies with Any Applicable Restrictions on Transfers of Property of Nonprofit Entities
- [17.38] Section 1129(d) — The Plan’s Purpose Is Consistent with the Bankruptcy Code
- [17.39] Bankruptcy Code §1129(b) — “Cramdown” Requirements for Confirmation
- [17.40] Fair and Equitable
- [17.41] Secured Creditors
- [17.42] Deferred payments
- [17.43] Sales of assets; indubitable equivalent
- [17.44] Unsecured Creditors
- [17.45] Equity Interest Holders
- [17.46] Unfair Discrimination
- V. Effect of Confirmation
- Chapter 18 — Asset Sales Under the Bankruptcy Code
- I. [18.1] Introduction
- II. [18.2] The Requirements of Bankruptcy Code §363 Do Not Apply to Sales Within the “Ordinary Course of Business”
- III. [18.5] Sales Outside of the Ordinary Course of Business
- [18.6] Two-Step Public Sales: Bidding Procedures and the Selection of a Stalking-Horse
- [18.7] Approval of Bidding Procedures
- [18.8] Selection of a Stalking-Horse and Approval of Bid Protections
- [18.9] The Business-Judgment Rule
- [18.10] Best Interests of the Debtor’s Estate
- [18.11] Breakup Fees as Administrative Expenses
- [18.12] Credit Bids by Secured Creditors Under Bankruptcy Code §363(k)
- [18.13] Disqualification of Credit Bid “For Cause Shown”
- [18.14] Credit Bidding in Sale Conducted Under Plan of Reorganization
- [18.15] Approval of a Sale Under Bankruptcy Code §363(b)
- [18.16] Standard of Review: The Business Justification Standard
- Other Considerations
- [18.17] Sale of Personally Identifiable Information
- [18.18] Sub Rosa Plans
- [18.19] Sale Free and Clear of Liens and Interests
- [18.20] Requirements of a Sale Free and Clear of Interests
- [18.21] Applicable Nonbankruptcy Law
- [18.22] Consent
- [18.23] When the Sale Price Exceeds the Lien Value
- [18.24] Disputed Liens
- [18.25] Monetary Satisfaction
- [18.26] Additional Extra-Statutory Requirements
- “Interests” Under Bankruptcy Code §363(f): Sale Free and Clear of Successor Liability?
- [18.27] Existing Liabilities
- [18.28] Future Liabilities
- [18.29] Finality of Sales Under Bankruptcy Code §363(m)
- Chapter 19 — Special Issues for Limited Liability Companies
- I. [19.1] Introduction
- II. [19.2] No Specific Treatment for an LLC
- III. Bankruptcy Code Definitions
- IV. LLC as Debtor
- V. [19.11] Involuntary Cases
- VI. A Voluntary Chapter 11 Case
- VII. The Five Stages of a Chapter 11 Case
- VIII. [19.17] Proposed Revisions to Small Business Law
- IX. When an LLC Member is the Debtor
- X. [19.24] The LLC as a Method of Promoting Bankruptcy Remoteness
- XI. [19.25] Prosecuting Derivative Claims of an LLC
- Chapter 20 — Chapter 11 Cases for Individuals and Small Business Debtors
- I. [20.1] Introduction and Scope of the Chapter
- II. Representing the Individual Debtor
- [20.2] Preliminary Matters
- Mechanics of Filing
- [20.3] Petition, Forms, and Schedules
- [20.4] United States Trustee Requirements
- [20.5] Retention and Compensation of Counsel and Other Professionals
- [20.6] Initial Debtor Interview and Code §341 Meeting
- [20.7] The Debtor’s Duties, Dismissal, and Conversion
- [20.8] The Debtor’s Avoiding Powers
- [20.9] Property of the Estate and Cash Collateral
- The Plan
- [20.10] Timing and Contents
- [20.11] Plan Payments
- [20.12] Plan Modification
- [20.13] The Absolute-Priority Rule
- [20.14] Domestic Support Obligations
- [20.15] Obtaining a Discharge
- [20.16] Final Report and Motion for Final Decree
- III. Representing the Creditor
- [20.17] Proof of Claim or Interest
- The Creditors’ Role
- [20.18] Secured Claims
- [20.19] Creditors’ Committee and Unsecured Claims
- [20.20] Priority Claims
- [20.21] Competing Plans
- [20.22] Curing Defaults
- [20.23] Appointment of Trustee or Examiner
- [20.24] The Involuntary Case
- [20.25] Conversion, Dismissal, and Revocation of Confirmation Order
- IV. Small Business Cases
- V. [20.29] Conclusion
- Chapter 21 — Special Problems In Commercial Real Estate Bankruptcy Cases
- I. [21.1] Introduction
- II. [21.2] Bad-Faith Filings and Motions To Dismiss
- III. [21.3] Turnover of Property by Custodian
- IV. [21.4] Perfecting a Security Interest in Rents
- V. [21.7] Debtor’s Use of Mortgagee’s Cash Collateral
- [21.8] Statutory Framework
- [21.9] Adequate Protection
- [21.10] Application of Cash Collateral to Mortgage Lender’s Claim
- [21.11] Application of Surplus Cash Collateral to Claim of Undersecured Mortgage Lender
- [21.12] Application of Surplus Cash Collateral to Claim of Oversecured Mortgage Lender
- [21.13] Interest
- [21.14] Yield Maintenance Provisions
- [21.15] Attorneys’ Fees
- VI. Automatic Stay
- [21.16] Scope and Purpose of Automatic Stay
- [21.17] Waivers of Automatic Stay
- Relief from Automatic Stay
- Statute and Rules
- [21.18] Code §362(d)
- [21.19] Federal Rule of Bankruptcy Procedure 4001(a)
- [21.20] Time Periods
- [21.21] Counterclaims
- [21.22] Stay Relief “For Cause”
- [21.23] Lack of Adequate Protection
- [21.24] Code §362(d)(2) — Lack of Equity and Property Not Necessary to Effective Reorganization
- [21.25] Lack of Equity
- [21.26] Property Not Necessary for Effective Reorganization
- [21.27] Single-Asset Real Estate Cases
- [21.28] What Constitutes Single-Asset Real Estate
- [21.29] Monthly Payments or Plan
- [21.30] Appeals
- VII. Chapter 11 Plans of Reorganization
- [21.31] Summary of Plan Confirmation Process
- [21.32] Classification of Claims
- [21.33] Impairment
- [21.34] Designation of Votes Under Code §1126(e)
- [21.35] Feasibility
- [21.36] Cramdown — Confirmation Notwithstanding Rejection by Impaired Class
- [21.37] Fair and Equitable
- [21.38] Unfair Discrimination
- [21.39] Cramdown on a Class of Secured Claims
- [21.40] Fair and Equitable Treatment of Dissenting Class of Unsecured Creditors — The New Value Corollary to the Absolute-Priority Rule
- Josef S. Athanas
Josef S. Athanas
Josef S. Athanas is a Partner at Latham & Watkins LLP in Chicago, where he focuses on restructuring, insolvency, and workouts. He was named one of the Best Lawyers in America and has been recognized as one of the top restructuring practitioners by Chambers USA. He is a member of the Chicago Bar Association and was Chairman of the Commercial Finance and Transactions Committee in 1999 – 2000. Mr. Athanas received his B.S. from Indiana University and his J.D. from the University of Chicago Law School.
- Paul M. Bauch
Paul M. Bauch
Paul M. Bauch is a Senior Partner at Bauch & Michaels, LLC, in Chicago, where he focuses on business and commercial law, commercial litigation, debtor and creditor relations, real property and construction law, regulatory, and appellate practice. He is a member of the American, Illinois State, and Florida State Bar Associations. Mr. Bauch received his B.A. in public administration from Western Michigan University and his J.D. from the University of Miami School of Law.
- Brad A. Berish
Brad A. Berish
Brad A. Berish is a Partner at Adelman & Gettleman, Ltd., in Chicago, where he focuses on insolvency and bankruptcy law. He is a member of the Chicago Bar Association and the Turnaround Management Association. He has been selected as an Illinois Super Lawyer multiple times. Mr. Berish received his B.S. in accounting from Indiana University and his J.D. from Emory University. He is also a certified public accountant.
- Barry A. Chatz
Barry A. Chatz
Barry A. Chatz is a Partner at Saul Ewing Arnstein & Lehr LLP in Chicago, where he focuses on bankruptcy and restructuring. He is a member of the American Bankruptcy Institute, the American Bar Association, and the National Association of Equity Receivers. Mr. Chatz received his B.A. from the University of Wisconsin-Madison and his J.D. from DePaul University College of Law.
- William Choslovsky
William Choslovsky
William Choslovsky is a Partner at Ginsberg Jacobs LLC in Chicago, where he focuses on litigation and bankruptcy. He has been named a Leading Lawyer. Mr. Choslovsky received his B.S. summa cum laude from the University of Illinois and his J.D. from Harvard Law School.
- Jeremy M. Downs
Jeremy M. Downs
Jeremy M. Downs is a Principal at Goldberg Kohn Ltd., in Chicago, where he focuses on bankruptcy and creditors’ rights. He has been named by Chambers USA as a Leading Lawyer in the United States in Bankruptcy/Restructuring since 2010. Mr. Downs received his A.B. in government cum laude from Harvard University and his J.D. from Northwestern University Pritzker School of Law.
- David R. Doyle
David R. Doyle
David R. Doyle is Member of Cozen O’Connor in Chicago, where he focuses his practice in financial and bankruptcy litigation and related transactional matters. He represents both debtors and creditors in all stages of financial distress, including out-of-court restructuring and workouts, assignments for the benefit of creditors, and Chapter 7 and 11 bankruptcy cases. After law school, he completed a term clerkship for the Honorable Carol A. Doyle (no relation) during her tenure as Chief Judge for the U.S. Bankruptcy Court for the Northern District of Illinois. He is a member of the American Bankruptcy Institute, the Turnaround Management Association, and the National Association of Federal Equity Receivers. Mr. Doyle received his B.A. from the University of Illinois at Urbana-Champaign and his J.D. cum laude at Chicago-Kent College of Law.
- Joseph D. Frank
Joseph D. Frank
Joseph D. Frank is a Partner at FrankGecker LLP in Chicago. He is bankruptcy counsel to some of the largest public and private corporations in the United States. He is member of the Trial Bar for the Seventh Circuit Court of Appeals. He speaks frequently to a wide range of professional groups and has written many articles. Mr. Frank received his B.A. magna cum laude from Carleton College and his J.D. with honors from the University of Chicago Law School.
- Eva D. Gadzheva
Eva D. Gadzheva
Eva D. Gadzheva is an associate at Goldberg Kohn Ltd., in Chicago, where she focuses on bankruptcy and creditors’ rights. Ms. Gadzheva received her B.A. with highest distinction from the University at Buffalo and her J.D. from Northwestern University Pritzker School of Law.
- Jeffrey L. Gansberg
Jeffrey L. Gansberg
Jeffrey L. Gansberg is Special Counsel to Much Shelist, P.C., in Chicago, where he focuses on bankruptcy and creditors’ rights. Mr. Gansberg received his B.S. from the University of Delaware and his J.D. from Washington University School of Law. He received the Scholar in Law award at Washington University School of Law.
- Frances F. Gecker
Frances F. Gecker
Frances F. Gecker is one of the Founding Partners of FrankGecker LLP in Chicago, where she represents and counsels financial institutions, trusts, corporations, creditors’ committees, and investors in commercial law, restructuring, and insolvency issues. She also has extensive experience serving as a liquidating trustee and representing liquidating trusts. She was first appointed by the United States trustee to serve as a trustee in the Northern District of Illinois. She has written numerous articles on bankruptcy issues, including the seminal article, The Doctrine of Necessity and Its Parameters, which has been widely cited by courts throughout the country. Ms. Gecker received her undergraduate degree with honors from the University of Wisconsin and her J.D. with highest honors from Northwestern University School of Law.
- Chad H. Gettleman
Chad H. Gettleman
Chad H. Gettleman is a Partner at Adelman & Gettleman, Ltd., in Chicago, where he focuses on commercial litigation, bankruptcy, insolvency, and corporate reorganization. He was named a Leading Lawyer for Bankruptcy and Workouts in 2004 – 2018 by Illinois Leading Lawyers Network, an Illinois Super Lawyer in the area of Bankruptcy and Reorganization, and a Leading Lawyer for Business by Chambers USA in 2006 – 2018. Mr. Gettleman received his law degree from Marquette University Law School. He is also a certified public accountant.
- Joshua D. Greene
Joshua D. Greene
Joshua D. Greene is a Partner at Springer Brown, LLC, in Wheaton, where he focuses on bankruptcy. He is a past Chair of the DuPage County Bar Association Bankruptcy Section and a former member of the Bankruptcy Court Liaison Committee in the Northern District of Illinois. He was recognized as a 2018 Emerging Lawyer by Leading Lawyers. Mr. Greene received his B.B.A. from Middle Tennessee State University and his J.D. from DePaul University College of Law.
- Mark F. Hebbeln
Mark F. Hebbeln
Mark F. Hebbeln is a Partner at Foley & Lardner LLP in Chicago, where he focuses on bankruptcy law. He is a Fellow of the American Bar Foundation and a member of the American and Chicago Bar Associations and the American Bankruptcy Institute. Mr. Hebbeln received his B.A. cum laude from Wake Forest University and J.D. from Emory University School of Law.
- James R. Irving
James R. Irving
James R. Irving is a Partner at Bingham Greenbaum Doll LLP in Louisville, Kentucky, where he is the Chair of the Bankruptcy & Restructuring Practice Group. He was a recipient of the American Bankruptcy Institute 40 Under 40 Award in 2017 and the recipient of the Chicago Bar Association’s Exceptional Young Lawyer Award in 2013. Mr. Irving received his B.A. from Williams College and his J.D. from Vanderbilt University Law School.
- Danielle Wildern Juhle
Danielle Wildern Juhle
Danielle Wildern Juhle is an associate at Goldberg Kohn Ltd. in Chicago, where she focuses on bankruptcy and creditors’ rights. She is a recipient of the 2018 Commercial Finance Association’s 40 Under 40 Award. Ms. Juhle received her B.B.A. with high distinction from the University of Michigan and her J.D. magna cum laude from Northwestern University Pritzker School of Law, where she was a member of the Order of the Coif.
- Jeremy C. Kleinman
Jeremy C. Kleinman
Jeremy C. Kleinman is an associate at FrankGecker LLP in Chicago, where he focuses on corporate bankruptcy and litigation. Mr. Kleinman received his B.A. in political science from the University of California at Los Angeles and his J.D. from the University of Michigan Law School.
- Richard G. Larsen
Richard G. Larsen
Richard G. Larsen is a Partner at Springer Brown, LLC, in Wheaton, where he focuses on bankruptcy law. He is a member of the DuPage and Kane County Bar Associations. He is a member of the Volunteer Attorney Panel of the United States Bankruptcy Court for the Northern District of Illinois and a volunteer for the Bankruptcy Court Help Desk in Chicago. Mr. Larsen received his B.A. magna cum laude from Aurora University and his J.D. magna cum laude from Northern Illinois University College of Law.
- Mark E. Leipold
Mark E. Leipold
Mark E. Leipold is a Partner at Gould & Ratner LLP in Chicago, where he is Chair of the Business Counseling and Transactional Group and a member of the Creditors’ Rights and Bankruptcy Group and the Litigation Service Group. He is an adjunct professor of law at DePaul University College of Law. He is Cochair of the Trustees and Examiners Subcommittee of the Business Bankruptcy Committee of the ABA Section of Business Law. He was a law clerk to the Honorable Robert E. Ginsberg, United States Bankruptcy Court for the Northern District of Illinois. Mr. Leipold received his B.S. from Northwestern University and his J.D. from DePaul University College of Law.
- Mary E. Lopinot
Mary E. Lopinot
Mary E. Lopinot is a Shareholder of Mathis, Marifian & Richter, Ltd., in Belleville, where she focuses on bankruptcy, business law and taxes. She is a member of the American and Illinois State Bar Associations. She is a past President and member of the Bankruptcy Association of Southern Illinois. Ms. Lopinot received her B.S. in accounting from Southern Illinois University and her J.D. cum laude from Saint Louis University School of Law.
- Kevin H. Morse
Kevin H. Morse
Kevin H. Morse is a Partner at Saul Ewing Arnstein & Lehr LLP in Chicago, where he focuses on bankruptcy and restructuring. He was named an Illinois Super Lawyers Rising Star in 2018. He was appointed to The American Lawyers Magazine Young Lawyers Editorial Board in January 2018, and he is a member of the 2015 Next Generation Class for the National Conference of Bankruptcy Judges. Mr. Morse received his B.A. from the University of Colorado at Boulder and his J.D. from Pepperdine University School of Law.
- Jill L. Nicholson
Jill L. Nicholson
Jill L. Nicholson is a Partner at Foley & Lardner LLP in Chicago and Chair of the firm’s national Bankruptcy & Business Reorganizations Practice. She concentrates her practice in commercial restructuring and bankruptcy. She was recognized by Chambers USA as a leading restructuring lawyer and by Super Lawyers as one of the Top 100 Lawyers in Illinois and also one of the Top 50 Women Lawyers in Illinois. She serves as an adjunct professor of law at Washington University School of Law. Ms. Nicholson received her B.A. with honors from the University of Chicago and her J.D. with honors from the University of Illinois College of Law, where she served as an Editor of the University of Illinois Elder Law Journal.
- Peter J. Roberts
Peter J. Roberts
Peter J. Roberts is a Partner at Fox Rothschild LLP in Chicago, where he focuses on bankruptcy law. He is a member of the American Bankruptcy Institute. He was designated a Super Lawyer in the areas of bankruptcy and creditor/debtor rights by the publishers of Law & Politics and Chicago Magazine and recognized in Best Lawyers in America in the practice area of bankruptcy and creditor debtor rights/insolvency and reorganization. Mr. Roberts received his A.B. cum laude from Boston College and his J.D. from Duke University School of Law.
- Nathan Q. Rugg
Nathan Q. Rugg
Nathan Q. Rugg is a Partner at Barack Ferrazzano Kirschbaum & Nagelberg LLP in Chicago, where he focuses on bankruptcy and creditors’ rights. He has received the Martindale Hubbell peer review rating of AV Preeminent. He was selected as a Super Lawyer in the areas of Bankruptcy and Reorganization in 2018 and recognized as a Leading Lawyer for Commercial Bankruptcy and Workout Law in 2018. Mr. Rugg received his J.D. cum laude from the University of Illinois College of Law.
- Carolina Y. Sales
Carolina Y. Sales
Carolina Y. Sales is a Partner at Bauch & Michaels, LLC, in Chicago, where she focuses on commercial litigation and bankruptcy. She is the Membership Co-Chair of the International Women’s Insolvency & Restructuring Confederation, the Treasurer of the Diversity Scholarship Foundation, NFP, and a member of the Illinois Judges Foundation Lawyers’ Auxiliary Committee. Ms. Sales received an Honors B.A. cum laude from Marquette University and her LL.M. in real estate and J.D. cum laude from The John Marshall Law School, where she was a Distinguished Scholar Award recipient and a Lead Articles Editor of The John Marshall Law Review.
- Adam P. Silverman
Adam P. Silverman
Adam P. Silverman is a Partner at Adelman & Gettleman, Ltd., in Chicago, where he focuses on commercial insolvency, bankruptcy, corporate reorganization, and other restructuring events. He was named a Rising Star in 2008 – 2010, a Super Lawyer in 2012 – 2018, and a Leading Lawyer in 2015 – 2017. He is a member of the American Bankruptcy Institute and the Chicago Bar Association. Mr. Silverman received his B.A. from the University of Illinois, his M.B.A. from the DePaul University Kellstadt Graduate School of Business, and his J.D. with honors from Chicago-Kent College of Law.
- Michael J. Small
Michael J. Small
Michael J. Small is a Partner at Foley & Lardner LLP, where he focuses on corporate restructuring and commercial bankruptcy. He is adjunct professor at Northwestern University Pritzker School of Law. He has been recognized in Chamber USA and Best Lawyers in America. Mr. Small received his B.A. magna cum laude from Brown University, his M.A. from the Jewish Theological Seminary of America, and his J.D. from the University of Chicago Law School.
- Steven B. Towbin
Steven B. Towbin
Steven B. Towbin is a Partner at Fox Rothschild LLP in Chicago, where he focuses on bankruptcy litigation, restructuring, and creditors’ rights. He is a member of the American College of Bankruptcy, the American Bar Association, and the American Bankruptcy Institute. Mr. Towbin received his B.A. from the University of Illinois and his LL.M. from DePaul University College of Law.
- Matthew L. Warren
Matthew L. Warren
Matthew L. Warren is a Partner at Latham & Watkins LLP in Chicago, where he focuses on restructuring, insolvency, and workouts. He is a member of the American Bankruptcy Institute and was named a 2018 Outstanding Young Restructuring Lawyer by Turnarounds and Workouts. Mr. Warren received his B.S. summa cum laude from Southern Illinois University and his J.D. from the University of Arizona James E. Rogers College of Law.
- William A. Williams
William A. Williams
William A. Williams is an associate at Jenner & Block LLP in Chicago, where he focuses on bankruptcy and restructuring. He is a member of the American Bankruptcy Institute and the Chicago Bar Association. Mr. Williams received his B.A. from Auburn University and his J.D. from the University of Virginia School of Law.
- Daniel A. Zazove
Daniel A. Zazove
Daniel A. Zazove is Of Counsel to Perkins Coie LLP in Chicago, where he focuses on insolvency and restructuring. He is a Fellow in the American College of Bankruptcy, listed in Chambers USA as one of America’s Leading Business/Restructuring Lawyers in 2011 – 2017, and named a Top 100 Illinois Super Lawyer in 2018. He is the Co-Chair of the Seventh Circuit Education Committee of the American College of Bankruptcy, and was an adjunct professor at The John Marshall Law School in 2008 – 2009. Mr. Zazove received his B.A. from the University of Wisconsin and his J.D. from the University of Illinois College of Law.
Business Bankruptcy Practice 2018 Edition
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