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BANKRU.LGF
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1994-08-02
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BANKRUPTCY
Bankruptcy, in law, is a system of procedures by which an
insolvent debtor may be released from, or can modify, DEBT
obligations. Under the U.S. Constitution, bankruptcy is a
matter of federal law and is presently governed by the
Bankruptcy Reform Acts of 1978 and 1984; the latter chiefly
restructured the bankruptcy courts and curtailed some liberal
1978 provisions concerning consumer bankruptcy. Generally,
individuals, corporations, and associations whose assets are
less than their liabilities can file.
Major Types
The Bankruptcy Code provides for three major types of
bankruptcy proceedings. In Chapter 7, or liquidation, cases,
the debtor's property is sold off by a trustee to pay the debts
owed to creditors. An individual debtor can keep a modest
amount of household property or realty under federal or state
exemptions. Individuals with a regular income who cannot pay
their debts can, instead of liquidation, elect adjustment
(Chapter 13) proceedings. In these cases, claims of creditors
are frozen until the individual, with the assistance of a
trustee, presents a plan to pay off the creditors from income.
With court and creditor approval, debts may be stretched out or
compromised and repossessions prevented, while the debtor still
retains all property. In Chapter 11, or business
reorganizations, the business is continued by its management or a
trustee while creditors' claims are frozen pending approval
of a plan. With court approval, the plan can modify or forgive
debts, recapitalize a corporation, provide for mergers or
takeovers, or dispose of assets.
Procedure
The 1984 law gave U. S. district courts original jurisdiction
over all Title 11 bankruptcy proceedings. It also authorized
the regional federal appeals courts to appoint a total of 232
bankruptcy judges, who are adjuncts of the district courts and
have 14-year terms. Trustees are either elected by the
creditors in a particular proceeding or appointed by the
government. Almost all U. S. bankruptcy cases are
voluntarily instituted by the debtors, although creditors can
force a debtor into involuntary liquidation.
In liquidations the trustee inventories the debtor's assets and
lists creditors and their claims. The trustee can void
unperformed contracts and leases or recover property the debtor
has transferred fraudulently to others or preferentially to
creditors. The trustee also administers the property and
distributes the proceeds. In nonliquidation cases the trustee
and the debtor split these duties. A debtor in liquidation or
one who completes a plan may be discharged from the obligation
to repay a prebankruptcy debt.
England and Canada
English law follows a similar approach. Creditors may petition a
court to appoint an official receiver as a trustee of the
insolvent debtor's estate. The receiver will try to arrange a
settlement among the parties. If this fails, a formal
adjudication of bankruptcy will follow. Canadian law also
allows both voluntary and involuntary bankruptcy.