Archive for December, 2011

Friday, December 30th, 2011

Involuntary Bankruptcy: How It Works

Mamtek, a company based in Moberly, Missouri, is currently facing the potential of a forced Chapter 7 bankruptcy filing by five of its creditors. The situation involves Mamtek, which manufactures an artificial sweetener, and its plans to open a plant in Moberly.

According to sources, the case has unfolded like this:

  • Mamtek planned to build a factory in Moberly. To finance the construction, the city of Moberly issued bonds worth $39 million to the company.
  • Missouri-based UMB Bank reportedly agreed to serve as trustee for the bonds, meaning that it financed the city’s agreement with Mamtek.
  • This fall, Mamtek missed a payment to the city of Moberly, and indicated that it could not afford to complete the half-built factory.
  • Without payments from Mamtek, Moberly indicated that it would default on the bonds, leaving the bank on the hook for tens of millions of dollars.
  • The bank, along with other creditors (mainly construction-related companies) took the case to the court system, urging the bankruptcy judge to force Mamtek into bankruptcy so they could recover their money.

If the judge rules in favor of the creditors, Mamtek will have to sell its assets and distribute the profits among its creditors to compensate them for the money Mamtek owes them. If the judge does not rule for the involuntary Chapter 7 bankruptcy, Mamtek may be able to abandon its building and the creditors could lose a significant portion of their investment.

Involuntary Bankruptcy for Individuals

Involuntary bankruptcy is also possible for individuals – that is, a person’s creditors can theoretically get together and attempt to force a person into bankruptcy in order to recover some of their money.

However, in the case of individuals, forced bankruptcy is fairly rare. This is partly because it requires creditors to act together and agree to request a forced bankruptcy, and partly because most people who need bankruptcy protection often do not have sufficiently valuable assets to make a liquidation and creditor distribution worthwhile.

Further, in order for the involuntary bankruptcy of an individual to be legal, certain conditions must be met:

  • For a single creditor to force involuntary bankruptcy, creditors must be unsecured, fewer than 12 in number, and owed at least $5,000 by the debtor.
  • If a debtor has 12 or more creditors, at least three of them must join together to file the involuntary bankruptcy petition.
  • Creditors can force an individual into Chapter 7 bankruptcy (and possibly Chapter 11), but not into Chapter 13 bankruptcy.
  • Debtors have a chance to answer the involuntary bankruptcy petition in court.

It’s important to know that a creditor’s involuntary bankruptcy petition for a debtor does not guarantee that the court will agree to push the debtor into bankruptcy. If you have received notice that creditors are attempting to force you to file for bankruptcy, it’s a good idea to speak with a bankruptcy lawyer about your options.

Since MF Global filed for bankruptcy protection at the end of October, much of the media attention has been focused on the scandal of the $1.2 billion in investor money that the firm cannot account for. That money, which reportedly belongs to about 38,000 investors, may have been used for MF Global’s own (questionable) investments in European debt.

But now, as the end-of-year charity giving season is in its final throes, another kind of fallout from the MF Global bankruptcy is coming to light: its effect on charity donations. According to sources, the country’s eighth-largest bankruptcy is likely to affect charity giving in a number of ways:

  • Individual donors who invested with MF Global and lost money (when the firm misplaced those funds) may be less likely to contribute to charities than they were in recent years. Because many smaller investors lost significant amounts of money (relative to their total net worth), tens of thousands of potential charity donations might have been wiped out by MF Global’s collapse.
  • Corporate charity organized by the CME Group will likely not occur. In years past, sources note, the CME Group kept a trust (called the CME Trust) of $50 million to compensate investors who were unfortunately hooked into (and who lost money by) fraudulent investment schemes. In the past, most of that money got donated to charities at year’s end; this year, however, the entire trust went toward compensation of MF Global investors who lost money.
  • Some charities invested money with MF Global. In addition to the individual clients who lost money, organizations (including nonprofits and charities) put their money with this firm, as it was meant to be a relatively safe investment option. Now the firm’s bankruptcy will translate to a direct loss of funds for charity investors.

Investors & Charitable Grants

It’s no secret that the wealthiest citizens of the U.S. are often the ones behind major charitable grants and donations. But few news sources have discussed the potential effect a major bankruptcy like MF Global’s, which includes debts of more than $39 billion, is likely to have on charitable organizations this year.

What is perhaps even more troubling is that this blow to charities comes during a time when individual donors have cut back on charitable contributions because of unemployment and reduced wages. Naturally, the persistently tough economy also means that more Americans than ever are in need of the support that charitable organizations traditionally offer.

In recent years, the CME Trust donated millions of dollars to Chicago-area educational institutions, including universities, charter schools, and organizations that fund education in the city. Without such donations, those and other groups could face significant financial difficulties in 2012.

Reports from the Christian Science Monitor indicate that former New Jersey Governor and CEO of MF Global Jon Corzine may have known about the use of client money in a loan to one of the company’s European partners.

The report is just the latest in the saga in MF Global’s bankruptcy case, which it filed on October 31, 2011. At the time of the filing, Corzine allegedly claimed that he had been unaware of the missing customer money until the day before the firm entered bankruptcy protection.

The new information (from sources including an executive from the Chicago Mercantile Exchange (CME)), however, suggests that Corzine might have known about the misuse of client funds much earlier. Given the questionable circumstances surrounding the case, Corzine and others involved could face criminal charges for their involvement in the trades.

Brokerage Firms, Client Money, and Bankruptcy

So what does the disappearance of $1.2 billion in client money mean? Here’s a breakdown of how MF Global operated and what the various facets of its bankruptcy might mean:

  • MF Global, before its bankruptcy filing, was a brokerage firm. It traded client money (as well as its own funds) on CME exchanges.
  • During his tenure as CEO (March 2010 to November 2011), Corzine attempted to convert MF Global into a full investment bank. As such, the company would have been able to engage in more types of financial transactions. As a brokerage firm, MF Global only managed transactions between buyers and sellers of various derivatives. In theory, the company might have been able to pull in greater profits as an investment bank.
  • Legally, brokerage firms and other investment institutions are not permitted to use client money for company expenses. In other words, MF Global could invest its own funds but could not dip into client accounts—for precisely the reason that a bad bet could translate to the disappearance of such money.
  • MF Global apparently broke that rule (and possibly the law), by investing client funds in questionable places.
  • Because of heavy losses linked to investments in European debt, MF Global filed for bankruptcy protection in late October. As its financial standing became a matter of public record, it became clear that the firm lost client money on ill-advised investments.

At present, it isn’t clear how the bankruptcy judge and trustee overseeing the MF Global case will handle the problem of the missing funds. In this situation, clients who invested with MF Global are among the firm’s bankruptcy creditors and as such will lose money if MF Global’s debts are discharged by the bankruptcy court.

The bankruptcy court will rule on how money will change hands regarding this incident. If investigators have reason to believe that insiders at MF Global broke the law (in addition to the rules that regulate brokerage firms), the Justice Department may try Corzine and others in criminal court.

Thursday, December 15th, 2011

Future Income and Bankruptcy Fraud

Every so often, there’s a local news story about someone who has been convicted of bankruptcy fraud. This week, the case belongs to one George Raynor, of Baileyville, Maine. While the case itself isn’t exceptional in any way, it highlights an important precaution for potential bankruptcy filers to note in order to avoid a fraud conviction.

What Is Bankruptcy Fraud?

Bankruptcy fraud is exactly what it sounds like: a bankruptcy filer’s provision of false information to the court that alters the outcome of his or her bankruptcy case. In some cases, bankruptcy fraud can be unintentional, but its penalties are steep: those convicted of bankruptcy fraud might face up to five years in jail and up to $250,000 in fines.

Common examples of bankruptcy fraud include an attempt to shield property from the court; a filer might attempt to transfer property from his or her name to the name of a friend or family member or might simply fail to report ownership of a piece of property or sum of money.

But bankruptcy fraud can also occur when a filer fails to mention income he or she is expected to receive in the future. Raynor’s case falls into this category.

Reporting Future Income in Bankruptcy

According to the Bangor Daily News, Raynor and his wife filed a bankruptcy petition in 2006 but, in their list of assets, did not mention:

  • A savings account in a bank;
  • A deferred compensation retirement account valued at roughly $150,000;
  • A lump sum payment from his retirement account in the amount of $97,000; and
  • A payment from his former employer of $12,000 as compensation for unused sick and vacation days.

Now convicted of the charges, Raynor could see as much as five years behind bars and fines of up to a quarter of a million dollars. To date, Raynor’s sentencing has apparently not been scheduled. Often, the amount of the fine assessed on a bankruptcy fraud conviction roughly equals the amount of money or value of property that the filer attempted to withhold from the court.

Avoiding Bankruptcy Fraud in Your Filing

One of the easiest ways to avoid bankruptcy fraud is to work with a bankruptcy lawyer. Working with someone who is familiar with state bankruptcy laws and the procedures of the bankruptcy court can go a long way toward avoiding mishaps that could delay or derail a case.

Lawyers can also advise filers about which of their assets they must list, whether gifts or property transfers will be considered legal by the court, and what outcomes they can expect from their bankruptcy case.

In cases where a filer may have future income due to him or her, a lawyer can help determine how to calculate the value of that income and how to report it on bankruptcy filing paperwork.

A recent article from The New Yorker highlights a troubling disparity in the way we view bankruptcy and loan restructuring in general in this country. As was evidenced in the recent bankruptcy filing of American Airlines, bankruptcy for corporate entities is generally considered part of an overall savvy approach to managing debts and investments.

While American could have continued paying its debts (it filed bankruptcy with more than $4 billion in the bank), it opted to take the bankruptcy route, which will allow it to restructure its debts into ones that make more financial sense. After the company filed its Chapter 11 bankruptcy petition, most analysts praised its decision, citing the success other airlines have had with reorganization bankruptcies in recent years.

For consumers interested in filing personal bankruptcy, though, the attitude of the general public is vastly different.

Bankruptcy as a Moral Issue

The current turmoil in the housing market highlights exactly how differently the general public views personal bankruptcy:

  • The housing bubble falsely inflated housing prices. Arguably, the analysts and economists who were equipped to recognize this bubble for what it was and attempt to prevent its burst did not. Also arguably, consumers might have recognized the bubble but were less likely to do so than those trained in economic fields.
  • Lenders and homebuyers took on risky debts, betting on rising home prices to pay them off. We now know that those debts were not so good.
  • Many banks lost millions or billions of dollars on bad home loans. Some of those banks benefitted from taxpayer-funded bailouts. Others have staunchly refused to refinance (on a significant scale) mortgage loans that have become untenable for their borrowers.
  • Many homeowners are underwater on their homes. Sources note that many Americans owe up to 50 percent more than their home’s value on their loan. The “smart move” financially for these people would be to walk away from their mortgage, to abandon their homes and stop paying their mortgages. Most don’t, though.

One of the major reasons more homeowners aren’t walking away from their unaffordable homes, even when such a move would be financially logical, is that nonpayment of loans has been morally stigmatized in the media.

Figures including the head of the Mortgage Banker’s Association have reportedly noted that defaults on home loans “send the wrong messages” to community and family members. Others have hinted that we would do well to bring back debtors’ prisons. The total effect, in other words, is that personal bankruptcy and similar moves (even when they’re financially savvy) have been labeled as morally deleterious.

The New Yorker article summarizes the problem in its closing paragraphs, noting that the prevailing attitude in the U.S. runs that individuals ought to “do the right thing” by honoring their debts, but that large businesses, banks, and corporations—who usually have much more capital at their disposal—can do whatever earns them the greatest profits.

Friday, December 9th, 2011

German Bankruptcy Support Group Thrives

Attila van Unruh, a serial entrepreneur living in Germany, has found his latest business success from an unlikely source: bankruptcy. According to the English version of the German paper Deutsche Welle, van Unruh came to his latest venture after having to declare bankruptcy because of an employee’s mismanagement of funds in one of the businesses he’d started.

At the time he filed for bankruptcy, van Unruh had opened an airline extension, a catering business, and a restaurant chain. Perhaps unsurprisingly, he saw his experience in bankruptcy as a way to help others—and started another business.

Harsher Bankruptcy Penalties in Germany

We’ve often remarked that American bankruptcy protection is an integral part of the fabric of our culture—our bankruptcy laws are relatively lenient, compared to those of many other countries, and as such encourage greater business risk-taking than in other parts of the world.

In Germany, however, those who file for bankruptcy may not be able to rent an apartment, get a cell phone contract, or conduct other essential business of everyday life for several years following their petition. The German bankruptcy process lasts six years, compared to as little as six months in the U.S.

When he entered bankruptcy protection, van Unruh discovered those depressing and discouraging realities firsthand—and he decided to do something about them.

He launched the group Insolvents Anonymous, which, since its inception, has:

  • Provided those in bankruptcy a forum to discuss their fears, frustrations, and experiences.
  • Established a network of counselors to help business owners with financial, personal, and emotional matters relating to bankruptcy.
  • Expanded to harness the knowledge of the thousands of entrepreneurs who have benefited from its services to provide essential information to other business owners and prevent future bankruptcies.
  • Spread to 10 German cities and parts of Austria. The group has reportedly helped at least 5,000 entrepreneurs already.

The Push for Bankruptcy Law Reform

It seems that van Unruh’s timing in creating Insolvents Anonymous was just right: as the economic crisis worsened, his group expanded and became relevant to more Germans and Austrians than in the past.

At present, van Unruh has apparently secured sponsors for his services and is pushing for a modification in Germany’s bankruptcy laws so that they more closely resemble those in the U.K. or France. One major point he’d like to see addressed? The waiting period before starting new business ventures.

After six years of bankruptcy, German filers must wait three additional years before starting a new business, a restriction that could hamper a filer’s ability to recover financially from bankruptcy.

Whether or not van Unruh succeeds remains to be seen, but his outlook, in some ways, seems rosy: much of Insolvents Anonymous’ current funding comes from “graduates” of the program who have gotten back on their feet and are able to give back to the group. This alone suggests that van Unruh is on to another winning proposition.

A report in the New York Daily Record notes that lawyers in large numbers are reporting using—and loving—their iPads. This report suggests that bankruptcy lawyers and others are embracing new technology to interact with clients in new and exciting ways.

Since the gadget’s introduction in the spring of 2010, iPads have sold more than 40 million units, outpacing many estimates and suggesting a sea change in the way people interact with digital media. In particular, though, iPads have proven popular among attorneys. Here’s a look at the numbers for law firms with 50 or more attorneys:

  • 25 percent noted that the iPad would be their next major technological purchase.
  • 11 percent reported already having bought iPads for their lawyers.
  • 55 percent indicated that their IT teams are employed at least in part to help with issues involving lawyers’ personal tablet devices.
  • Of lawyers who use a tablet device for work, 89 percent prefer the iPad.
  • Fully 15 percent of lawyers utilize their tablets to do work when they’re not in the office.

At firms with over 500 attorneys, those numbers are even higher.

How You Benefit from Lawyers with iPads

More so than other technological innovations of recent years, the iPad promotes connectivity from anywhere. Attorneys who have and use iPads (at work and on the go) may be, according to the numbers, more able to stay in touch with clients.

That could translate, for example, to not missing a bankruptcy court deadline when a client remembers something at the last minute. It could also mean that lawyers are more accessible to answer questions clients have about their cases.

In various contexts, access to a tablet computer like the iPad means that a lawyer can connect to vast databases of legal publications within seconds, thus potentially streamlining the processing of much client information and of tracking down legal precedents for various courtroom maneuvers.

Highly connected lawyers have a greater likelihood of staying current with the latest legal trends reported in the mainstream media as well as traditional legal publications.

A Permanent Change in Communication?

Analysts of the impact the iPad has had (and is expected to have) on our communication and culture as a whole are not yet sure how great an impact the tablet’s introduction will have on the way we do business and conduct our personal affairs.

Some insiders suggest that, viewed through a historical lens, 2010 will mark a turning point in how we conduct business, read, interact with digital media, and go about our personal lives. Want to find out whether the iPad craze has swept your lawyer’s office? Ask him or her about technology use during your next visit. You may learn something useful!