New Jersey Chapter 11 Bankruptcy Lawyers

How Chapter 11 bankruptcy works

A Chapter 11 bankruptcy case in New Jersey begins with petitioning the bankruptcy court serving the area where the debtor has a domicile or residence. A petition may be either a voluntary petition, filed by the debtor, or an involuntary petition, filed by creditors who meet specific requirements. 11 U.S.C. §§ 301, 303. A voluntary petition must adhere to the format of Form 1, as prescribed by the Judicial Conference of the United States in the Official Forms.

Required Forms

Unless the court orders otherwise, the debtor also must file with the court:

(1) schedules of assets and liabilities;

(2) a schedule of current income and expenditures;

(3) a schedule of executory contracts and unexpired leases; and

(4) a statement of financial affairs. Fed. R. Bankr. P. 1007(b).

Filing Requirements

There are additional document filing requirements if the debtor is an individual (or husband and wife). Such debtors must file:

• • a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling;

• • evidence of payment from employers, if any, received 60 days before filing;

• • a statement of monthly net income and any anticipated increase in income or expenses after filing;

• • and a record of the debtor’s interest in federal or state-qualified education or tuition accounts.11 U.S.C. § 521.

A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a). (The Official Forms are not available from the court but may be purchased at legal stationery stores or downloaded from the Internet at: http://www.uscourts.gov/FormsAndFees/Forms/BankruptcyForms.aspx

The courts must charge a $1,000 case filing fee and a $39 miscellaneous administrative fee. The fees must be paid to the court clerk upon filing or may, with the court’s permission, be paid by individual debtors in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8. Fed. R. Bankr. P. 1006(b) limits the number of installments for the filing fee to four. The final installment must be paid within 120 days after filing the petition. For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than 180 days after filing the petition. Fed. R. Bankr. P. 1006(b). The $39 administrative fee may be paid in installments in the same manner as the filing fee. If a joint petition is filed, only one filing fee and one administrative fee are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 1112(b)(10).

The voluntary petition will include standard information concerning the debtor’s name(s), social security number or tax identification number, residence, location of principal assets (if a business), the debtor’s plan or intention to file a plan, and a request for relief under the appropriate chapter of the Bankruptcy Code. Upon filing a voluntary petition for relief under Chapter 11 or, in an involuntary case, the entry of an order for relief, the debtor automatically assumes an additional identity as the “debtor in possession.” 11 U.S.C. § 1101. The term refers to a debtor that keeps possession and control of its assets while undergoing a reorganization under Chapter 11 without appointing a case trustee. A debtor will remain a debtor in possession until the debtor’s plan of reorganization is confirmed, the debtor’s case is dismissed or converted to Chapter 7, or a Chapter 11 trustee is appointed. The appointment or election of a trustee occurs only in a small number of cases. Generally, the debtor, as “debtor in possession,” operates the business and performs many of the functions that a trustee performs in cases under other chapters. 11 U.S.C. § 1107(a).

Generally, a written disclosure statement and a reorganization plan must be filed with the court. 11 U.S.C. §§ 1121, 1125. The disclosure statement is a document that must contain information concerning the assets, liabilities, and business affairs of the debtor sufficient to enable a creditor to make an informed judgment about the debtor’s plan of reorganization. 11 U.S.C. § 1125. The information required is governed by judicial discretion and the circumstances of the case. In a “small business case” (discussed below), the debtor may not need to file a separate disclosure statement if the court determines that adequate information is contained in the plan. 11 U.S.C. § 1125(f). The plan’s contents must include a classification of claims and specify how each class of claims will be treated under the plan. 11 U.S.C. § 1123. Creditors whose claims are “impaired,” i.e., those whose contractual rights are to be modified or who will be paid less than the full value of their claims under the plan, vote on the plan by ballot. 11 U.S.C. § 1126. After the court approves the disclosure statement and the ballots are collected and tallied, the court will conduct a confirmation hearing to determine whether to confirm the plan. 11 U.S.C. § 1128.

In the case of individuals, chapter 11 is similar to chapter 13. For example, property of the estate for an individual debtor includes the debtor’s earnings and property acquired by the debtor after filing until the case is closed, dismissed, or converted; funding of the plan may be from the debtor’s future earnings; and the plan cannot be confirmed over a creditor’s objection without committing all of the debtor’s disposable income over five years unless the plan pays the claim in full, with interest, over a shorter period. 11 U.S.C. §§ 1115, 1123(a)(8), 1129(a)(15).