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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.
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