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Chapter 11: Operation of Chapter 11
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Web posted and Copyright © 1/12/98, American Bankruptcy Institute.

The following abstract summarizes the text of submissions made to the National Bankruptcy Review Commission. The abstract is organized by NBRC working group and topic.

The Final Report of the NBRC can be viewed on-line. To obtain a copy of any document shown below, contact the Center for Legislative Archives, Room 205, National Archives Building, Washington, D.C. 20408. The telephone number is 202/501-5350. Mr. R. Michael McReynolds, Deputy Director, will be able to assist with specific inquiries. (The NBRC documents will be housed at this location until June, 1999. Thereafter, the records will be transferred to the Center's archives in College Park, MD.)

ID Name Group Other Code
Problem Referenced Proposed Solutions
NBRC-0019 Morten S. Beyer President; Morten Beyer and Associates; "Reforming the Bankruptcy Act," V.2 No. 7 MBA Aviation Oracle (Nov. 1995)(citing Michael K. Lowry, "Air Watch Report").

The U.S. Bankruptcy Laws are designed to give management every opportunity to retain control and reorganize as debtors-in-possession. This has not worked well. Braniff, Continental, and TWA all went through bankruptcy twice. The bankruptcies of Eastern, Pan Am, Braniff, and others demonstrate the it was the creditors the paid the price of incompetent management. The British system, which puts the bankrupt out of its misery in a matter of days and salvages as much as possible for the creditors is better--"Get the Foxes Out of the Hen Houses."
NBRC-0019 Morten S. Beyer President; Morten Beyer and Associates; "Reforming the Bankruptcy Act," V.2 No. 7 MBA Aviation Oracle (Nov. 1995).

A myriad of lawyers swarm over the carcasses of bankrupt carriers, growing fat on their liberal fees. The quick, surgical British system limits the larval greed of lawyers and the Commission should consider limiting lawyers in airline bankruptcies.
NBRC-0019 Morten S. Beyer President; Morten Beyer and Associates; "Reforming the Bankruptcy Act," V.2 No. 7 MBA Aviation Oracle (Nov. 1995).

The Bankruptcy Code gives the presiding judge considerable authority to act decisively and settle matters quickly; however, this authority is little-used, and week or incompetent judges, badgered by the lawyers and blinded by the blandishments of debtors-in-possession trying to hold on for one more month, are no match for their adversaries. The quick appointment of a liquidator would solve this problem.
NBRC-0020 Leonard P. Goldberger, Daniel E. Armel, Grant W. Newton, Alan M. Jacobs American Bankruptcy Institute Panel Discussion

Critics of the US bankruptcy system argue that too much time and too many resources are expended in attempts to rehabilitate businesses whose business theory has become obsolete and whose assets would be productive if sold to competitors or employed in unrelated businesses. After years of operationg losses, mounting administrative costs, and unconfirmable plans, too many cases are converted to liquidation after almost complete erosion of unsecured creditor recoveries. The Commission should consider whether the bankruptcy court should be provided with evidence early in the case, from an independent party (i.e., licensed insolvency officer) considered to be an officer of the court, that would indicate whether the debtor's business has a chance to reorganize or whether the business should be liquidated and the extent to which an early viability assessment will increase efficiency and avoid the erosion of creditor recoveries.
NBRC-0140 Marcia L. Goldstein The Association of the Bar of the City of New York, Chair, Committee on Bankruptcy and Corporate Reorganization

Although the Association of the Bar of the CIty of New York generally supports the current operation of Chapter 11, it recognizes that some cases take too long and cost too much. The NBRC should review the roles that bankruptcy judges and other third parties play in the reorganization pprocess, and consider whether their more active participation in certain cases should be more explicitly contemplated by the Code. Furthermore, the NBRC should review appointmkents of third parties in bankruptcy cases (including how and when a third party should be appointed and the extent to which parties in interest should participate in the appointment process). the possible roles that may be performed by such a third party, and the bankruptcy court's power to tailor case procedures and exclusivity orders.
NBRC-0178 Gary White, on behalf of the Natl. Assoc. of Credit Management Chair, Government Affairs Comm., Natl. Assoc. of Credit Management

Debtors' in possession compliance with fiduciary duties should be carefully monitored. These duties require the DIP to consider equity among creditors in creating a reorganization plan. The DIP's counsel should have court oversight to review whether the DIP's are honoring their fiduciary duties. Standards should be established for determining whether attorneys and other professionals providing services to the DIP and the estate actually imparted any benefit. This determination should be used to establish their eligability for compensation.
NBRC-0180 Marc S. Young Disputed Secured Creditor
724(b) Rule 7001(2); §§ 550, 551 Creditors who extend credit to businesses should be held accountable for the profits they receive from disreputable businesses because the creditors are willing participants in the debtor's exploitation of the public. In order to protect themselves from disreputable businesses, creditors should be permitted to evaluate the character of the potential debtor. Also, judicial liens should receive higher priority than perfected UCC Section 9 secured creditors liens so that creditors are encouraged to examine the character of potential debtors. Creditors who extend credit to businesses should be held accountable for the profits they receive from disreputable businesses because the creditors are willing participants in the debtor's exploitation of the public. In order to encourage creditors to examine a debtor's character before extending credit, judicial liens should receive higher priority than perfected UCC Section 9 secured creditors liens.
NBRC-0181 Ann vom Eigen, on behalf of the American Land Title Association Legislative Counsel Copy of testimony from 12/96 Open Forum 362(a)(4) 549(c) Recent Ninth Circuit decision in McConville incorrectly interprets the language "transfer of real property" and should be overruled. Thompson v. David Margen and Lowton Associates (In re McConville), 97 F.3d 316 (9th Cir. 1996). The Court erroneously concluded that: (1) the phrase "transfer of real property " in 11 U.S.C. § 549(c) does not include the transfer of interest in real property, such as a mortgage or deed of trust, and (2) the automatic stay in § 362(a) otherwise voids any attempted perfection of a transfer under § 549(c). No basis exists under the Bankruptcy Code for treating the term "transfer" in § 549 differently than in §§ 101(37), 101(43), 101(54), 547 and 548, where "transfer" unquestionably applies to transfers of interest in property, including the creation of liens. Contrary to the holding in McConville, the purpose of § 549(c) is to protect both bona fide purchasers and bona fide encumbrancers from undisclosed bankruptcies, and consequently from having their interests in real property invalidated as unauthorized postpetition transfers under § 549(a). The Ninth Circuit's decision in McConville puts at risk every lender who extends credit in reliance on state real property recording acts where debtors' undisclosed bankruptcies were filed in remote jurisdictions. Because it is practicably impossible for the title insurance industry to contemporaneously search bankruptcy filings in 50 states at the time of loan closing, the McConville decision will force the title industry to take an exception from its title coverage for the existence of an undisclosed bankruptcy case. The risk of loss, therefore, would be borne by the lending industry and may chill the availability of credit. Bankruptcy Code should be amended to abrogate the decision in McConville and clarify the definition of "transfer of real property." In particular, the author recommends the following clarifications: (1) the term "lien" in § 101(37) should be amended to include encumbrances; (2) the term "purchaser" in § 101(43) should be amended to include recipients of security interests; (3) the term "transfer" in § 101(54) should be amended to include creation of a lien; (4) a new § 102(10) should be added to clarify that references in the Code to real property, personal property, or fixtures include reference to interests therein, including liens; (5) § 362(b)(3) should be amended to exempt from the § 362(a) automatic stay the steps necessary to perfect an interest otherwise intended to be protected ubder § 549; and (6) a new § 362(b)(19) should be added to exempt from the § 362(a) automatic stay any postpetition transfer which is not avoidable under § 549, thereby allowing the exceptions to §§ 549 (b) and (c) to operate as originally intended.
NBRC-0185 Terrance L. Stinnett Attorney

Requiring a status conference only 30 days after the petition is filed is "probably too soon." In most cases, after this 30 day period, the Schedules and Statements of Affairs has not been filed yet, a meeting of creditors has not been held, and a creditors' committee either has not been appointed, or if appointed, has not had an opportunity to organize and select counsel. The first two or three weeks of a case are usually devoted to administrative details and cash collateral issues, and neither counsel nor debtor has time to consider the details of how the debtor's problems will be resolved. Mandatory status conference should be held no earlier than 60 days after the petition date.
NBRC-0189 Marcia L. Goldstein, on behalf of NY City Bar Assoc., Comm. on Bankruptcy & Corp. Reorganization Chair, Comm. on Bankruptcy and Corp. Reorganization
101(41) 109 Definition of "person" in § 101(41) should specify whether limited liability companies are considered "persons," and thus eligable for debtor relief under § 109. In order to eliminate ambiguity as to whether limited liability companies are eligable to be debtors, the definition of person in § 101(41) should be amended to specifically include such companies. The author provides a sample redrafted version of § 101(41).
NBRC-0189 Marcia L. Goldstein, on behalf of NY City Bar Assoc., Comm. on Bankruptcy & Corp. Reorganization Chair, Comm. on Bankruptcy and Corp. Reorganization
1124 1122(b) The 1994 amendment to § 1124 has forced debtors to solicit votes from a class of unsecured creditors that receives a 100% recovery in cash, without postpetition interest. Consequently, as a technical matter, debtors must now solicit votes from a class of administrative convenience claims. To clarify the procedure for administrative convenience claims, § 1122(b) should be amended to provide that debtors need not solicit votes from a class of convenience claims that receives 100% recovery. In amending § 1122(b), a technical amendment would also have to be made to § 1129(a)(8) to make these sections consistent. The author provides sample redrafted versions of §§ 1122(b) and 1129(a)(8).
NBRC-0223 Frank R. Kennedy Professor, Michigan Law School; former Executive Director, Commission on the Bankruptcy Laws of the United States (1973) Cover letter discussing various areas of concern

Author provides a list of 30 "Topics for Consideration by Commission on Bankruptcy Laws." Recommnded topics relating to Operation of Chapter 11 are: 1. Restoration of stripdown authority of bankruptcy court 2. Authorization for adjustment of residential mortgages in Chapter 11 and 13 cases 3. Elimination of special provisions for financiers of transportation equipment 4. Treatment of rents as cash collateral 5. Reexamination of special provisions for landlords 6. Avoidance sections 7. Overruling of BFP-Durrett 8. Revision of provisions governing debtors-in-possession and examiners 9. Facilitation of pre-packaged plans of reorganization 10. In forma pauperis petitions 11. Debtor counsel
NBRC-0245 David G. Epstein Attorney

NBRC deliberations should be based on guiding principles which will control the answers to more specific questions. Author suggests four basic concepts to guide deliberations on debtor's leases and contracts: (1) author provides specific suggestions relating to rejections, assumptions, assignments, modifications and "ride throughs"; (2) creditors should be given notice of decisions pertaining to contracts and leases, and creditors opposing th debtor's decision should have an opportunity for a hearing and court review of that decision; (3) bankruptcy law should clearly indicate the deadline for a breach/commit to perform/transfer decision, and should define the rights and obligations of both the debtor and the other party to the contract or lease until that decision is made; and (4) these general concepts should not apply to contracts in which the only performance remaining as of the time of the bankruptcy case is the payment of funds to or by the debtor.
NBRC-0295 Robin E. Phelan Attorney; forwarding a proposed amendment from Mike Sutherland of Vinson & Elkins Proposed amendment to § 1123(a)(6) 1123(a)(6)
Author forwards a proposed amendment from another attorney relating to nonvoting equity securities. The author states that there are circumstances where nonvoting equity securities are useful in connection with the plan of reorganization, and both authors agree that the absolute prohibition of § 1123(a)(6) should be reviewed by the NBRC. Author recommends that the prohibition against nonvoting equity securities be revoked entirely. The author of the attached proposed amendment suggests that this section merely be revised. Suggested statutory language is provided.
NBRC-0301 National Bankruptcy Conference National Bankruptcy Conference (NBC), Bernard Shapiro - Chair
National Bankruptcy Conference believes that the following issues merit study by the NBRC: whether there are modifications that should be made to Chapter 11 to streamline the process, reduce the costs and deal with cases of minimal creditor interest without damaging the beneficial rehabilitative effect of business reorganizations, and whether the bankruptcy judge should be given a more active case management role as contemplated by the 1994 amendments to § 105. None.
NBRC-0301 National Bankruptcy Conference National Bankruptcy Conference (NBC), Bernard Shapiro - Chair

National Bankruptcy Conference believes that the following issue merits study by the NBRC: whether a substantial effort should be made to repeal the special purpose legislation that has been engrafted upon the Code since 1978. This legislation contains arcane provisions that have resulted in "privileged treatement for a few." Special purpose legislation should be repealed in order to promote the goals of equality of distribution, rehabilitation, and protection of the discharge.
NBRC-0303 Commercial Law League of America Commercial Law League of America (CLLA)

The Commerical Law League of America believes that the following issues should be considered by the NBRC: Does the Bankruptcy Code adeuately protect employee benefits Should old equity be permitted to participate in the reorganization of a business if it contributes to new value How should such participantion be regulated (significant case law is available on this issue) The CLLA believes that these issues should receive top priority (no additional details are provided).
NBRC-0307 Leon S. Forman On behalf of the American College of Bankruptcy (ACB) "Revised Summary of College Positions," and names and addresses of ACB focus group members

ACB concludes that chapter 11 is working reasonably well and does not require structural change. Its best attribute is flexibility. Exclusivity, eligibility, small business and other provisions are working reasonably well. ACB feels that chapter 11 does not require structural change. As to the eligibility of insurance companies, further study is warranted.
NBRC-0318 Paul Mignini, Jr., Mary E. Wysocki and Charles M. Tatelbaum President-National Association of Credit Management ("NACM"), Chair-NACM Government Affairs Committee, and NACM Legislative and Bankruptcy Counsel, respectively
NACM sought the input of all NACM members with respect to proposed changes to the bankruptcy laws. The NACM Government Affairs Committee, without discussing the rationales for their suggestions, prepared the proposals below. NACM's Government Affairs Committee concludes that § 523 should be amended to provide that: if an individual, as an officer or director of a corporation has taken action by or on behalf of the corporation which would have made the debt non-discahrgeable for the corporation if it were an individual, then the debt shall also be non-discahrgeable to that individual as to any guarantor of the corporate debt who so participated in or effeted the fraudulent activity.
NBRC-0345 Philip J. Brandl President, National Housewares Manufacturers Association ("NHMA")

NHMA members believe that the losses resulting from the failure of retail enterprises should not fall disproportionately on suppliers--all constituencies should be represented adequately in the process of reorganizing or liquidating troubled enterprises. Often, debtors "load up" on goods just prior to commencing a bankruptcy case in order to increase their asset bases. This problem is exacerbated by the generally accepted view that a lender with a floating lien on invetory receives priority over a supplier's reclamation rights. Bankruptcy Code should be amended to prevent retailers from abusing the system at the suppliers' expense by: (1) expanding the "look back" period to a least 60 days before commencement of a case; (2) extending the reclamation period for invetory obtained on credit; (3) recognizing a supplier's right to proceeds of the sale of goods subject to reclamation; and (4) recognizing a priority for suppliers of goods over the claims of a secured lender with an interest in a debtor's inventory.
NBRC-0345 Philip J. Brandl President, National Housewares Manufacturers Association ("NHMA")

NHMA members are concerned about their ability to be heard in bankruptcy cases. Often creditors' committees do not represent the interests of smaller manufacturers. Also, it is often not economically feasible for NHMA members to actively participate in the case. NHMA urges the NBRC to give meaningful attention to means of increasing the representation of smaller manufacturers in retail bankruptcies, and that consideration be given to allowing suppliers to be more informed or in control of their involvement in a bankruptcy case.
NBRC-0368 Kenneth N. Klee Robert Braucher Visiting Professor from Practice, Harvard Law School Coer letter from Sam Gerdano, Executive Director, American Bankruptcy Institute, enclosing this submission

The author observes that in the debate over the success of chapter 11, neither side has defined the concept of success. To sharpen the pending debate, he has written this 98-page paper addressing the concept of success in business bankruptcies. He concludes that success must be defined by the optimization of social enterprise value rather than the direct, quantifiable, economic value for monied interests. We must also consider the interests of employees, communities, and others who do not have a direct right to payment against the debtor. Bankruptcy Code would be more successful if it excluded the cases where the cost to society is likely to be far greater than the benefit from allowing these cases to proceed, such as those cases where the stakes are small. The author also recommends that the Code be amended: (1) to deter fraud by requiring private trustees to investigate a certain number of cases per year, and (2) to create a threshold requirement allowing businesses to file under chapter 11 only if they are good candiadtes to bear the cost of the chapter 11 process and emerge rehabilitated.
NBRC-0384 American Bankruptcy Institute American Bankruptcy Institute ("ABI")

ABI presents this "Report on the State of the American Bankruptcy System," which is the capstone of ABI's three-year Bankruptcy Reform Study Project. The Project's efforts culminated with a 65-question survey covering a broad spectrum of possible areas of reform. The study indicates that: (1) in general, the Code of 1978 is working well; and (2) probelms of delay, excessive costs, unfairness, and abuse need to be addressed in the current round of reforms. ABI recommnds: (1) strict deadlines for dismissal or appointment of trustees to help combat abuse; (2) reorganization of chapter 11 policy to provide stricter time limits, elimination of non-viable debtors, and reduction of excessive professional fees; (3) relaxing eligibility requirements for consumer reorganizations under chapter 13, and providing time limits, limited discharge and uniform national exemptions; (4) high standards of integrity for all professionals; (5) a balance between creditors' and debtors' rights, and equality of distribution; and (6) not adopting priority classes of claimants.
NBRC-0428 Judge Robert Martin Bankruptcy Judge, W.D. Wis. Proposed Draft Statute 1104
There is a general distrust for the debtor in possession model that was made central to the 1978 Code. While the drafters believed that §1104 would provide an adequate check on the activites of the DIP, this has not proved to be the case. The current burden on the party moving for a trustee is almost impossible to meet. Tha lack of a viable threat that the DIP may lose control of the reorganiztion process has continued what was known under old Chapter XI as "the arrogance of the Chapter XI debtor." Unresponsiveness, delay, looting of the estate, and uneconomic decisions are all potential products of inappropriate DIP control. Author proposes to re-draw the basis for appointment of a trustee, dramatically shifting the burden to the debtor to demonstrate (if such a motion is made) that a trustee ought not to be appointed. Author has attached a Proposed Draft Statute.
NBRC-0428 Judge Robert Martin Bankruptcy Judge, W.D. Wis. Proposed Draft Statute

The time required to confirm a plan once it is proposed. The Code adopted a model of informed voting based on full disclosure. In fact, the question "What constitutes adequate disclosure" has become a collateral source of litigation which is burdensome and results in great delay. There would be little loss to the integrity of the system if disclosure statements were done away with altogether. If the debtor filed a simple summary of the plan, its treatment of different classes of creditors, and generally, how it will be implemented, any further inquiry could be safely left to interested creditors and accomplished under Rule 2004 if informal inquiry is not sufficient.
NBRC-0492 Philip J. Brandl President, National Housewares Manufacturers Association Position Statement on Bankruptcy Law Reform, Housewares Manufacturers Coalition

NHMA is "concerned about the structure of the bankruptcy process under which the same managers that presided over the decline of a retail enterprise often lead it, apparently largely unsupervised, through the bankruptcy." "Representation on a creditors' committee would help; greater oversight by a truly independent third party, whether the judge or some type of trustee, would increase the credibility of the system."
NBRC-0492 Philip J. Brandl President, National Housewares Manufacturers Association Position Statement on Bankruptcy Law Reform, Housewares Manufacturers Coalition

NHMA members are "troubled by the ease with which enterprises can commence bankruptcy cases." "In our experience...a significant number of the retail businesses that seek the protection of bankruptcy law, and that ultimately pay suppliers considerably less than they are owed, might have worked out their problems without the expensive and, at times, inequitable intervention of the bankruptcy process." "We commend to the Commission's attention the new German bankruptcy law model, in which a potential debtor will have to meet defined financial tests in order to be admitted to bankruptcy protection. Alternatively, we urge the Commission to consider recommending an explicit good faith requirement for debtors commencing bankruptcy cases."
NBRC-0552 Martin J. Bienenstock Weil, Gotshal & Manges LLP Proposed Amendment to § 541 of the Bankruptcy Code, Memorandum of 3/21/97 to Elizabeth Warren from Leon S. Forman, Letter of 3/5/97 from Elizabeth Warren to Martin J. Bienenstock. 541(b) 362(b) "When a company desires to raise money through the creation of debt collateralized by its accounts receivable, the company will frequently transfer its receivables to a 'bankruptcy remote entity.' In turn, the bankruptcy remote entity will issue debt sometimes guaranteed by credit enhancers...Under current law, the uncertainty arises when the transfer by the operating company to the bankruptcy remote entity is deemed to be something other than a sale." "To deal with the situation in which the operating company commences a chapter 11 case, the proposed amendment prevents the assets transferred to the bankruptcy remote entity from being part of the operating company's estate."
NBRC-0609 Michael H. Reed Attorney, Pepper, Hamilton & Scheetz LLP Copy of article, M.D. Pa. Expands Successor Liability; copy of Gould v. A&M Battery. 363 105(a) There is uncertainty in the case law over whether successor liability for existing claims can be cut off by a sale outside of a plan or, if so, whether the power to cut off such liability is found in section 363 or is rooted instead in section 105(a). Section 363 of the Code should be revised to make it clear that a good faith purchaser for value of assets in a sale free and clear conducted pursuant to section 363 of the Code will be free of successor liability for existing (pre-conveyance) debts of the debtor or trustee as long as adequate notice of the sale free and clear was given to every putative successor liability claimant whose identity and whereabouts was known or reasonably ascertainable.
NBRC-0634 John H. Neiman Attorney
350(b) 1144 Author feels that there should be some type of supervision after a plan has been confirmed. Under local rules, final decrees are entered, and for all intents and purposes the case is closed before the payments required under the plan have been completed. Author suggests an amendment to §1144 which he feels "would require the debtor or the entity which became the operating entity to file reports with the Court and the United States Trustee during the time the Plan is being consummated and the United States Trustee would be able to file a request for revocation of the Order of Confirmation if the Plan is not being consummated in accordance with the confirmation."
NBRC-0774 Mark C. Trentacoste Attorney

"My own belief, and the impression of others I have talked to, is that especially for smaller cash businesses, Chapter 11 is easily abused." A DIP can continue running the business, delaying or failing to comply with the Chapter 11 plan, liquidating the value of the business while still drawing an excessive salary or skimming receipts, and finally, when only a shell of the business is left, converting to Chapter 7 or being dismissed. "I would hope the Code could contain a provision allowing perhaps a "supermajority" of the creditors to "pull the plug" and have a trustee appointed who could decide either to continue the business with new management or to liquidate."
NBRC-0824 Burton R. Lifland Bankruptcy Judge, Southern District of New York Memorandum Decision and Order Denying Motion to Appoint Examiner Pursuant to 11 U.S.C. §§ 105(a) and 1104(c). 1104(c)(2)
Author is forwarding an opinion he wrote in a bankruptcy case in which there was a request pursuant to 11 U.S.C. § 1104(c)(2) for the mandatory appointment of an examiner. "I would suggest that, in its deliberations, the Committee ought to review a patential modification of 11 U.S.C. § 1104(c)(2) as well as the negative and positive aspects of post-petition claims trading.
NBRC-0825 Ronald J. Sutter Accountant, Financial Consultant
Author expresses his concern about the priority status of "Examiners" and to a limited extent Chapter 11 Trustees appointed under 11 U.S.C. Sec. 1104. When an examiner is appointed, not a whole lot is then known that is not disputed facts, which is why an examiner's report is needed. Often, the examiner recommends the conversion of the case to Chapter 7. This places the examiners in a conflict of interest because if they recommend conversion to Chapter 7 their own fees and reimbursable costs are subordinated to all the Chapter 7 administrative expenses, which means that in reality they will get no or very little compensation. "I recommend to you and the National Bankruptcy Review Commission that the fair and equitable solution to this unfair conflict be that the payment priority status of an Examiner be raised to equal that of a Chapter 7 professional."
NBRC-0858 Ed Goldwasser, et al. Small World Toys

"Debtors should be curtailed from filing Chapter 11 preemptively against their creditors." N/A
NBRC-0900 James J. White Professor of Law, University of Michigan Law School Copy of author's testimony before the Bankruptcy Commission on May 14, 1997.

Author writes to send a copy of his comments to the Commission on May 14, 1997 and to address the issue of the effect which his suggestion that the Chapter 11 be speeded up would have on the distribution of assets. None.


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