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Bankruptcy and Reorganization Essay

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y">Abstract

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y">The purpose of this paper is to answers two legal questions. The first is based on involuntary bankruptcy and the second on reorganization.

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y">Bankruptcy and Reorganization

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y">Petition

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y">Generally, involuntary bankruptcy is usually filed by the creditors against the partnership. However, this might not always be the case. Under section 11 USC 303 (b) (3)(A), if

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the debtor is a partnership, involuntary bankruptcy proceedings can be brought by one or all of the partners. In this case, since Beren is also a partner, he can file for the involuntary bankruptcy.

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y">In order for the court to grant relief at least one of the two conditions must be met. Firstly, if

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the debtor is generally not paying the debts due, which in this case, has swelled up to $380,000, the debtor can file for bankruptcy. Therefore in this case Beren being a partner of the partnership can file for involuntary bankruptcy. Secondly, the court can grant relief if

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within 120days before filing the petition, Beren appointed a custodian, who has possession of all the partnerships assets (United States Courts). Since, the partnership is not paying its debts and assuming that the second condition is met, the court shall grant the petition for in voluntary bankruptcy.

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y">However, if

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the court feels that the bankruptcy petition has been filed by Beren, so that they will not have to pay creditors (i.e. to escape paying), the court shall not grant the petition for involuntary bankruptcy. In other words, if

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the court is of the view that the bankruptcy petition has been filed by Beren, to escape paying the debts of the partnership, i.e. the involuntary bankruptcy has been filed in bad faith then the court will not grant the petition for involuntary bankruptcy.

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y">Plan of Reorganization

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y">This is a case of chapter 11 bankruptcy. Generally, debtors file for chapter 11 bankruptcy, so that they can keep on doing their business. In the meantime a committee of creditors will look after the matter. The thing that happens in chapter 11 bankruptcies is that, the debtor files a reorganization plan with the court. In this reorganization plan, dif

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ferent classes of creditors are made and the amount that will be paid to them is stated.

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y">However, the debtor cannot just file the plan like this. Under bankruptcy laws, there can be a consensual confirmation, where by all the classes of creditors accept the plan drawn by the debtor.  Likewise, there can be non-consensual (cramdown) confirmation as well (This matter). But for this confirmation at least one impaired class of creditors must accept the plan.

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y"> If none of them accept it the plan cannot be accepted by the court. Similarly if

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none of the creditors accept the plan, but the court determines that it is fair then it can confirm reorganization.

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y">In the above case, none of the creditors have accepted the reorganization plan drawn up by Richard P. Friese. However, a non-consensual confirmation cannot be made in this case because it requires approval by at least one impaired class. Unfortunately for Richard P. Friese, there is only one impaired class (i.e. the unsecured creditors) and they have not given their approval. Therefore, since the condition is not met, the bankruptcy court cannot confirm the debtor’s plan of reorganization.

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y">References

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y">This matter. (n.d.). Chapter 11 Bankruptcy Overview. Retrieved May 28, 2010, from This matterwebsite: http://thismatter.com/money/credit/bankruptcy/chapter-11/chapter-11-overview.htm

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y">United States Courts. (n.d.). Liquidation Under the Bankruptcy Code. Retrieved May 28, 2010, from United states court website: http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter7.aspx

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