8.2 Bankruptcy： Part 2
1. Features of a chapter 7 Liquidation 清算的特点
“Honest Debtor” “Fresh Start”
Discharge most debts
Certain debts survive (Wafted)
1.1 Objection to discharge
Objection to discharge 反对解除债务 and non dischargeable debts不可解除债务
The following will prevent the debtor from receiving any discharge:
- Debtor not an individual
- Fraudulent transfer or concealment of property
-Unjustifiably failed to keep books and records
-Prior discharge within eight years
1.2 Exceptions to discharge 解除例外（不可解除债务）
Certain debts of an individual are not discharged under chapter 7 or 11.
WAFTED: Willful and malicious injury; Alimony; Fraud; Taxes; Education Loans; and Debts undisclosed in the bankruptcy petition.
1.3 Reaffirmation of discharged debts
Reaffirm the debt was made before the granting of the discharge
1.4 Distribution of the debtor’s estate: payment and priorities
Paid in order
1).Secured claimants
2). Priority Claimants (SAG, WEG, CTI)
- Support obligations owed to spouse and children
-Expenses of the bankruptcy administration, including filing fees, court fees, trustee fees, and the like’
- Claims that accrue in the ordinary course of business (after an involuntary petition is filed)
- wage claims of employee for sums earned within 180 days of bankruptcy, up to 13650 雇员在破产180天以内赚取的款项， 最高达13650
- Sums owed for employee benefit up to whatever of the 13650 above is left(所欠员工的福利，不超过上诉13650所剩数额））
-Claims of grain farmers and fishermen up to 6275
-consumer deposits up to 3025
-tax claims
-personal injury claims arising from intoxicated driving
3). General Creditors who files their claims on time
2. Features of Reorganization cases under chapter 11
(IPC, voluntary or involuntary)
2.1 Creation of creditors committee
After the order of relief effective, committee of unsecured creditor is appointed(willing person holding the seven largest unsecured claims against the debtor)
非地产业务， 如果债务不超过2.6 million, 可以选择以小企业处理， 不指定creditor’s committee.
2.2 Equity security holders’ committee
7个最大持有人，和债务人协商， 调查债务情况，参与重组计划
2.3 Debtor generally remains in possession
Committees are appointed; but a trustee is not appointed.
The debtor is presumed to be in the best position to run the business
2.4 Chapter 11 reorganization plan
破产案件中，按照破产法 chapter 11 债务人可以随时提出重组计划。
Debtor has exclusive right专属权利 to file a plan during the first 120 days after the order of relief is effective.
其他债权人可以在下列情况提交计划
1）at trustee has been apppointed
2) debtor has not filed a plan within 120 days (after the order for relief became effective)
3) debtor filed but not obtained acceptance of every impaired class with 180 days after entry of the order for relief.
2.4.1. Contents of plan
- classify all claims (secured, first priority, second priority, impaired, unimpaired, etc)
- describe the treatment to be accorded each impaired class
- treat each claimant with a particular class identically
- establish ways to implement the plan
2.4.2 acceptance of the plan by creditors
- Any Creditor/Equity security holder must be give an opportunity to accept or reject the plan
- >= 2/3 in amount金额 + 1/2 in number 数量, 视为接受计划
- a class of impaired interests is deemed to have accepted if it is accepted by equity security holders have at least 2/3 in amount of the allowed claims.
2.4.3 confirmation of the plan by court
The court will confirm the plan if meets certain conditions,
-Being accepted by all impaired classes
Providing for payment in full for priority administrative expenses and gap claims,
And the plan is feasible(reasonable chance of succeeding)
- cram down 强制破产执行
如果至少有一个受损群体接受了计划， 即使未被所有受损人接受，法院也可以确认该计划； 如果该计划没有不公平的歧视not unfairly discriminatory，并且对弱势群体都是公平公正的。 这就是所谓的Cram down.
2.5 effects of confirmation
Binding 约束力on all creditors, equity security holders, and the debtor regardless of whether they accept the plan
一旦确认债务人偿还了债务， confirmation discharges the debtor from all pre-confirmation debts(expect the debt not discharged under chapter 7 are also not discharged under 11), WAFTED.
- Confirmation also terminates the automatic stay 终止自动停留
3. Features of a chapter 15 case (Multination)
3.1 commencement of ancillary proceeding
Ancillary proceeding in bankruptcy 破产附带程序破产法院在行使其附带管辖权〔ancillary jurisdiction〕时所进行的程序。
Commenced by a “ foreign representative” filling a petition for recognition of a “foreign proceeding”
- SHOW the existence of the foreign proceeding and the appointment and authority of the foreign representative
发出通知和举行听证会之后，美国法院承认外国程序
破产法中的自动终止和其他规定在美国生效； 美国法院发布preliminary relief
3.2 Foreign Representative’s Powers
Is authorized to operate the debtor’s business.
Once recognized, may seek additional relief from the bankruptcy court and is authorized to bring a full-blown bankruptcy case under chapters 7 or 11.
May participate in a pending us insolvency case and may intervene in any other us. Case in which the debtor is a party
3.3 prohibition against discrimination
(外国政府和税收债券除外，这些债权可能受条约管辖）
3.4 requirement of notice and cooperation
要求美国破产案，向外国债权人发出通知，包括追偿的权利
法院和受委托人要尽最大可能与外国法院和外国代表合作。
