Chapter 11 Bankruptcy

Bed Bath & Beyond filed for Chapter 11 bankruptcy in April of 2023, hoping to salvage its faltering business if it could find a buyer. Since then, the retailer closed all of their physical stores and operates only through their website. In addition, their subsidiary company, BuyBuyBaby, also closed before being bought by a competitor. What does all that mean for creditors owed money by Bed Bath & Beyond?

Bankruptcy is a legal process that relieves the debt of individuals and businesses. There are two types of bankruptcy: liquidation and reorganization. Chapter 7 liquidation bankruptcy sells off all the debtor's assets to pay off its debts.

Businesses can also file for Chapter 11 bankruptcy. Companies facing significant financial difficulties but wishing to continue business operations, like Bed Bath & Beyond, use this type of bankruptcy.

Basics of Chapter 11 Bankruptcy

Large corporations and partnerships make use of Chapter 11 bankruptcy. However, small businesses and, in rare cases, even individuals are eligible. Chapter 11 allows an insolvent company to restructure its debts and liabilities by creating a manageable reorganization and repayment plan. Once the bankruptcy petition gets filed, the owner becomes the debtor in possession of the business and can continue operations.

To supervise the bankruptcy proceedings, the court assigns a U.S. Trustee. While the owner can operate the business as usual, it needs court approval to take out new loans, sell assets, or close the business.

A detailed disclosure statement and a plan of reorganization are filed with the court. Creditors may vote to accept or reject this plan.

What Is a Chapter 11 Bankruptcy?

Chapter 11 bankruptcy uses reorganization to help businesses with heavy debt burdens. Companies that file for Chapter 11 under the U.S. Bankruptcy Code work with creditors to reorganize their debts and restructure their businesses.

The company files a proposed plan post-bankruptcy, which may include:

  • Reducing costs
  • Seeking new sources of income
  • Temporarily postponing payment to creditors
  • Ideas for profitability

Entering into Chapter 11 bankruptcy is a serious endeavor with many potential ramifications. Be sure it's the right move for your business.

Chapter 11 Compared to Other Chapters

Businesses that must declare bankruptcy and close shop should consider filing for Chapter 7 bankruptcy rather than continuing to operate.

Another type of lesser-known bankruptcy case is Chapter 12. This class of bankruptcy is for individuals who are family farmers or fishermen.

You don't have to be a business to file for Chapter 7 or Chapter 13 bankruptcy. These are the most common bankruptcy filings for individuals and some companies in specific circumstances.

Benefits of Chapter 11 Bankruptcy

Chapter 11 bankruptcy restructuring has some key benefits. It:

  • Avoids total liquidation of the business
  • Your business can stay in operation
  • Provides more time to develop and file a plan
  • Allows reorganizing of things that are not working
  • Allows you to retain control of your business

Chapter 11 is also more time consuming and expensive than other forms of bankruptcy.

Who Can File: Owners vs. Creditors

The business owner in debt or its creditors can file for Chapter 11 bankruptcy. If the creditors decide to file, it is an involuntary petition.

No matter which party files the petition, the business goes through the bankruptcy process.

Filing a Chapter 11 Petition

A voluntary petition process with an attorney or by yourself. The debtor then begins to develop their reorganization plan.

The bankruptcy court will accept a reorganization plan if it is:

  • Developed and structured in good faith. This means the owners created it with good, honest intentions. Courts will review all the paperwork in the case to determine if you had good or bad faith.
  • In compliance with all applicable laws, local laws, court orders, Bankruptcy Code, reformed laws, Bankruptcy Rules, and all current temporary laws

Once approved, the court will confirm the plan. Any debts that existed before the confirmation date but were not addressed in the plan are eligible for discharge. The company must pay the remaining creditors and lenders following the reorganization plan.

Some debt is either discharged or negotiated to be less money. This allows repayment plan amounts to be much lower than the original debt.

The debtor will need to:

  • Examine each creditor's claims throughout the process
  • Make objections where it makes sense
  • Provide monthly operating reports to keep the court updated on progress

After filing the petition, the business can continue its day-to-day work. While it does so without interruption, the debtor will create a repayment plan under the bankruptcy court's supervision.

Chapter 11 Filing Fees and Administrative Fees

As of 2024, you will pay a $571 administration fee and a $1,167 case filing fee to file a Chapter 11 bankruptcy. With the court's permission, the fees are eligible for installment payments.

If you ask to divide a joint case, such as two business owners filing separately, you will pay another $571 in administration fees. Then, you will pay $1,167 to file the new motion with divided cases. It costs $1,167 to reopen a dismissed case.

Required Information To Submit When Filing Chapter 11

Small businesses must file the following forms with the court:

  • The most recent balance sheet
  • Statement of operations
  • Cash-flow statement
  • Most recent federal income tax return

The bankruptcy court oversees small business Chapter 11 filings more than larger entities. Courts require businesses to report on their profitability and projected cash receipts and disbursements. Also, they appoint U.S. bankruptcy trustees to these cases.

The Automatic Stay

Filing a petition triggers an automatic stay, which stops all collection actions unless the court indicates otherwise. Creditors and collection agencies can no longer call or harass you. They must stop all actions to foreclose or enforce liens against the business. You will have time to create your plan of reorganization.

Taking on any new debt will be outside of this bankruptcy. The automatic stay does not stop or dismiss new debt.

Chapter 11 Reorganization Plan 101

Chapter 11 bankruptcy protection allows businesses to attempt to become profitable again. Chapter 7 liquidates all assets to pay off debts and closes the business.

To achieve this goal via Chapter 11, the company's first moves are to:

  • Renegotiate leases
  • Renegotiate contracts
  • Have debts discharged or pay part of them

You have an exclusive right to file a reorganization plan for 120 days. There is an incentive for creditors to work with the business owner, accept less debt repayment, and compromise. This is possible because they wouldn't get better terms or more money in a Chapter 7 bankruptcy action.

reorganization plan will put creditors into different classes depending on how their claims are handled. The creditors with priority for repayment include:

  • State and federal tax agencies
  • Employees owed wages
  • Stockholders

Each secured creditor is its own class of creditors, while unsecured claims are in another class. The plan might change the money or terms creditors receive when repaying debts. Creditors vote on the reorganization plan, which is then submitted for approval by the court.

Creditors Committee

The U.S. Trustee will assign a creditor's committee, usually comprised of the business's seven largest unsecured creditors. The creditor's committee assists in overseeing the company, investigating it, and developing a repayment and reorganization plan. Once developed, the reorganization plan is submitted to the court for confirmation.

Chapter 11 for Small Businesses

Chapter 11 bankruptcy reorganization is commonly associated with larger corporations but is available to qualifying small businesses.

The Small Business Administration defines a small business as one with fewer than 500 employees. Small businesses make up most of the Chapter 11 filings but don't always remain in Chapter 11.

Small business Chapter 11 bankruptcies often get dismissed and converted to Chapter 7. This often occurs because the U.S. court decides the company has little or no chance of becoming profitable. Partnerships have very few bankruptcy options. A partnership may file for Chapter 11 if the business entity survives and profits.

According to the U.S. Bankruptcy Code, a small business debtor is an individual engaged in business activities with total secured and unsecured debts of $3,024,725.

Note: The COVID-19 pandemic CARES Act raises this debt limit to $7.5 million. This increased limit is set to expire in June 2024 but is eligible for an extension.

Subchapter V for Fast-Paced Small Business Bankruptcy

In February 2020, the Small Business Reorganization Act of 2019 (SBRA) created subchapter V for small business owners. This may help business owners facing the aftermath of the pandemic.

This process moves faster and is cheaper than a standard Chapter 11. It uses a private bankruptcy trustee to help you create and approve a consensual reorganization plan. Creditors cannot vote on the plan, which saves you a lot of time. As long as the plan is fair and equitable, the court should approve it.

You can file for this new option if you:

  • Meet the usual Chapter 11 requirements
  • Approve the courts having conferences on your case's status in the first 60 days of the case. You must provide a status report for their review 14 days before their meeting.
  • File the reorganization plan within 90 days of filing for bankruptcy
  • Can move quickly on timing and paperwork
  • Choose to file for it

Otherwise, you will go through the usual Chapter 11 process.

This subchapter might make sense for you if you want:

  • A private trustee's help to create the bankruptcy plan
  • To avoid paying fees each quarter to the trustee
  • More control in negotiating your reorganization

This subchapter has other requirements and details, so it is important to learn about it in more detail or ask your bankruptcy attorney.

Single Asset Real Estate (SARE) Debtors

Small business owners of real estate can also file for Chapter 11. This often includes office buildings, warehouses, and shopping centers.

This is a single-asset real estate case under Chapter 11. It involves debtors with:

  • Non-residential property
  • Less than four residential units that generate almost all the debtor's income

Those whose primary business is owning and operating real property are not eligible.

Downsides to Chapter 11 Bankruptcy for Small Businesses

If you own a small business, take the time to consider whether Chapter 11 is right for you.

Chapter 11 gives small businesses extra time to create a plan, file it, and renegotiate repayment terms with their creditors. Chapter 11 allows 180 days as opposed to 15 days for Chapter 7. 

It also has its drawbacks. Legal fees can cost tens of thousands of dollars, which may be unsustainable for a struggling small business.

If the emergence from bankruptcy protection proves successful, these costs are offset by the ultimate reward of becoming profitable. Before deciding, consider discussing your options with a seasoned business bankruptcy attorney.

Rare Cases: Chapter 11 for Individuals

Chapter 11 bankruptcy reorganization was designed for businesses. The 1991 U.S. Supreme Court case Toibb v. Radloff decided that non-business, individual consumers are also eligible.

This is very rare. This unusual route is pursued by individuals who:

  • Still have substantial personal earning potential
  • Have debts exceeding the limits set forth by Chapter 7 and Chapter 13

A typical non-business Chapter 11 bankruptcy filer might be a celebrity who got in over their head with bad investments. They would still have earning potential through product endorsements, for example.

Chapter 11 is more debtor-friendly than other types of bankruptcy, including the ability to cram down certain forms of debt. This means the court pushes through a plan over the objections of some creditors.

Talk to an Attorney About Chapter 11

Being in debt can be overwhelming, but bankruptcy may be an option to help with your debt woes. Your business might need the protection afforded by a Chapter 11 bankruptcy filing. You'll need outside expertise for a smooth process. You're taking a large risk if you go it alone.

Bankruptcy laws are complex. If you're considering bankruptcy, consult an experienced bankruptcy attorney who can explain your options based on your situation.

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