For a business filing bankruptcy or contemplating business bankruptcy, first all options should truly be exhausted. As a small business owner, do you have the ability to work with your creditors, find additional financing or loans, or even work with friends and family to assist you during a rough spot.
In fact, I know one small business owner that took advantage of a small business owners group in their community with whom she was able to network and get a variety of “experts” to help her evaluate her business, cut costs, figure out how to best schedule her labor, and other tips, tricks and advice that actually helped her turn her business around and avoid bankruptcy which she thought was inevitable. Contact a business bankruptcy lawyer in your area to discuss all of your options, and leverage small business groups in your community to partner with some other business owners who may be able to provide you with sage advice and guidance on how to avoid bankruptcy.
When your business runs into troubled waters where you have borrowed money, incurred huge debts and are now unable to repay these obligations, the instant solution that comes to mind is that of filing for Business Bankruptcy. The lure of starting afresh, after seeking solace in Chapter 11 is always more appealing than trying to find means to clear the debt trap that you have fallen into.
However, no matter how grave the consequences, it is often better to say no to Business bankruptcy. Bankruptcy should be considered only as a last resort and out-of-court restructuring alternatives should be given a thought.
The primary reason, people avoid filing for bankruptcy is that it will lead to them losing direct control over their business. Once you start functioning under the umbrella of Chapter 11, there will inevitably be other creditors and new masters ready to take on your share of control as well as decision making powers. The company will be put under tremendous constraints which many third parties like vendors, landlords, service providers etc who have a vested interest may start acting on, as well. Moreover, the debtor will have to start explaining how and why so many things are being done while at the same time have to seek the court’s approval to succeed.
Another important feature of filing for business bankruptcy and the reason one must try to avoid it is the expenditure it incurs. Not only does it take too long to get all the procedural matters sorted out, but it turns out to be a costly affair. A bankrupt company will need to find expert legal counsel, the rates of which may truly be unaffordable. Additionally there will be business advisors, filing fees, administrative expenses, all of which can run up a huge tab.
The resolving of bankruptcies can take far too long which tends to be another reason to avoid them. Moreover the process is slow, tedious and cumbersome. The management will be obligated to spend a significant amount of time planning for and attending court hearings to get the approval of actions that they want to take and therefore ending up spending little time actually running the business. This may lead to lost opportunities in business, another chink in the armor of bankruptcy.
The long drawn out process of bankruptcy laws combined with the uncertainty it accords, also leads to employee dissatisfaction and low employee morale. This may lead to high attrition rates, which in turn lead to high attendant costs. Hiring and training new employees increases the burden of costs and reduces motivation levels considerably.
Given all the above factors, bankruptcy is a risky decision. Obviously, the reorganization of a company under Chapter 11 is designed to create a fresh start and preserve or enhance business opportunities, but often the process can be quite damaging, perhaps as much as the initial problem and reason of bankruptcy.
Certain industries and businesses are totally averse to filing for bankruptcy. Companies, typically, in the large-scale, long-term construction industry are not good candidates for Chapter 11. One reason for this is the risk of continued payment or progress billing for the work being done. Another reason is that subcontractors may have the right to lien property if they are not fully compensated. Thus, the potential benefits that may accrue as a result of the debtor company being able to avoid immediate payment for certain pre-petition obligations are greatly limited. Lastly, it is difficult for a debtor in the large-scale company contracting business to bid for and win new businesses when under the Chapter 11 clause. Most potential bidders are likely to turn their backs on such cases.
An out-of-court restructuring alternative should be considered as opposed to business bankruptcy as it is not only attainable, but because it can be done relatively faster, with less extraneous activity as well as less expense. Also, because a company is dealing directly with its most important creditors it tends to be a better option. While the pool of interested parties becomes smaller, it also means that the financial losses are not shared as equally as it usually is in a Chapter 11. In these situations, solid planning and communication with the major stakeholders is critical. All in all, business bankruptcy may not be the best solution to a company under-performing. It should be taken only as a last resort solution only when all other options are exhausted.
Author: William Brister
Article Source: http://EzineArticles.com/?expert=William_Brister
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For a business filing bankruptcy, or on the verge of filing bankruptcy, information and knowledge is power. The business bankruptcy process is complex and complicated, not to mention time-consuming and even emotional for many small business owners who are facing the potential end of their small business dreams. A business bankruptcy lawyer can provide you with sound legal counsel and legal representation for this process, and may be able to help you save your business, and emerge from the business bankruptcy with a viable and profitable business.
The question of what exactly happens when a business files bankruptcy is something that any business owner should be aware of, since it is different than when a consumer files for personal or individual bankruptcy.
Unfortunately, the reality is that many businesses file bankruptcy each year. There are many reasons this happens, but outside of a partnership where one of the partners runs off with the business money (which is a legal matter), there are various reasons that this is the case. Very often this is due to inadequate market planning, and the second most common reason is financial mismanagement.
For market planning, anyone planning to open a business must do enough market research in the particular geographic area where they plan to open this business to make sure that there is sufficient demand for the products and services that will be offered. This is not just a couple of days worth of effort with surveys handed out during lunch time at the mall, but can often take weeks to complete adequately to ensure that there really is a market in this area that can sustain the business on an ongoing basis.
For financial mismanagement, this should not be construed as being necessarily a negative thing, but businesses are required to file a lot of paperwork with both the state in which they operate as well as the government. There are payroll taxes that need to be paid, filing fees, and this cannot be put off since there are rather stiff penalties that will cost even more money if these things are late. Many times a business will spend money on expansion in terms of equipment, computers, trucks, etc, before they are really ready to take on that financial obligation.
When a business files for bankruptcy, the impact is typically much more severe compared to when an individual consumer files bankruptcy, especially if the business is going to file Chapter 7 bankruptcy. The business must meticulously list each and every tangible asset that is attributed to the business, as well as listing all of their debt. If the business has bond holders and/or mortgage lenders that money is owed to, the business owner needs to be aware that these debts will not be discharged in a bankruptcy.
A creditor to whom the business owes money will typically secure the value of the outstanding balance via the assets of the business, and can in fact force the business to be dissolved. This can be catastrophic, especially in a smaller business since employees are usually the first ones to feel the impact, and it is not unusual for those employees to see what is about to happen and seek employment elsewhere before the axe falls. If there is outstanding payroll due any employee, unfortunately that employee must stand in line behind creditors to try to collect, and the reality is that they will never see that paycheck.
Typically, the most common type of business to go bankrupt in the US is restaurants. While a restaurant is one of the easiest businesses to open, it is also one of the most difficult to maintain and keep operationally profitable. If a restaurant does not have the customers to support the business, they have a huge amount of potential food that they have ordered and paid for which they will need to throw away. Employees are affected as well as the suppliers who sold goods to the business, and this eventually starts a chain reaction that unless the business owner is very financially savvy, can reach a point of no return before the business owner is even aware of it.
The best advice to give to a business owner considering bankruptcy is to become intimately knowledgeable about bankruptcy law. The law has changed significantly in recent years, and the more the business owner understands about his options, the less painful the whole procedure is going to be.
Author: Jon Arnold
Article Source: http://EzineArticles.com/?expert=Jon_Arnold
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For a business filing bankruptcy, a chapter 11 bankruptcy is a reorganization in which the business may still be able to function during the bankruptcy process. A valuation is what helps the court decide if you are able to continue operations. If you have more questions about how to calculate your business valuation, or have more questions about this process, contact a business bankruptcy lawyer in your area for more details.
The intent of Chapter 11 Bankruptcy reorganization is to allow relief to the debtor in possession while the business attempts to continue operating under court supervision. Once the petition for bankruptcy is filed, the court issues an automatic stay to prevent creditors from foreclosing on assets or taking legal action against the debtor. The valuation can assist the courts when deciding whether the creditors can lift the stay or the debtor can obtain financing to continue operations. A valuation expert assists the courts in determining the facts of the case, and can enter the proceedings at any stage of the initiation process. Of course, any valuation must be prepared in accordance with applicable bankruptcy law and procedure, as well as meet the accepted methodologies and approaches while continuing to remain impartial. Though many experienced valuators shy from the court setting, their expertise and assistance to the courts can significantly affect the proceedings by informing the bankruptcy judge, debtor in possession (DIP), the committee of unsecured creditors and/or equity-holders, as well as secured creditors of the value under various assumptions: liquidation of its assets, going concern or combination of both. In order for a petition to be confirmed by the courts, the plan of reorganization must meet certain tests that are legally fair and equitable. Chapter 11 is not exclusive of reorganization, and the Code implicitly recognizes that in some cases, value may be maximized through some combination of reorganization and liquidation. A business may be worth more if sold in whole as a going concern, and valuation experts can calculate its fair market value during the confirmation phase. The courts need to know if the business can satisfy its creditors within various scenarios of risk and the “going concern” sale is a popular trend. A debtor in possession’s plan must maximize the value of the assets as well as save the residual estate of the pre-bankruptcy owners. The complexity of bankruptcy law involves tension between these two concepts of going concern and asset liquidation. On one side is the efforts to maximize the value of assets and the other is to save the residual stake of the pre-bankruptcy owners. Saving the going concern means continuing to operate the business which means continuing to incur risk. Creditors are typically risk adverse. However, if the business is liquidated today, the creditors get nothing; if the business continues they may get something, but the creditors bear the risk of loss. Continuing a business has inherent risk: company-specific risk, risk of changes in the economy and interest rates, all of which must be factored into the decision during the confirmation stage of bankruptcy. The professional valuation provides a tool to the courts to analyze from experienced and impartial analysis the underlying value based on these different assumptions, risks and standards of value. Motions by secured creditors to lift the stay seek to foreclose on the assets of the company. The creditors can seek relief by demonstrating “cause, including lack of adequate protection.” The judge has the discretion and can rely on the valuation to seek the details of equity standing of the business. The actual condition of the business is not usually as simple as it appears based upon the financial statements and tax returns filed with the courts. The definition of value is the first and foremost issue at the inception of the bankruptcy process. “Value” can mean different things to different parties: fair market value, market value, fair value, true value, investment value, intrinsic value, fundamental value, insurance value, book value, use value, collateral value and so on. There are income, asset and market-based methods of business valuation. The premise of value utilized in the valuation process assumes either a “going concern” or “liquidation” of the subject. The Bankruptcy court utilizes the outcomes of these different assumptions-based approaches to make its determination. At the beginning of the bankruptcy, a valuation may determine whether the creditor can lift the automatic stay and if the debtor can use cash collateral or obtain DIP financing. At the confirmation stage, the valuation can assist in the tiers of debtor’s capital ownership structure. Chapter 11 allows the debtors to attempt to preserve the business while working out the debt repayments. Preserving the business can yield a greater return to the creditors than selling off the business assets in a liquidation. It is difficult to determine whether the business can rebuild successfully and steps taken during the valuation can bring forth details regarding the management team, estimated future income stream and market conditions. Many factors relating to the condition of the business are analyzed for purposes of the valuation; trends in the industry, competition and other companies in the same or similar industry. In addition, any contingent liabilities are searched for and considered for the likelihood of occurring and their effect on value. The process will also search and value unrecorded assets of the business such as intangibles and intellectual property including copyrights and trademarks. In re Exide Technologies, 303 B.R. 48 (Bankr. D. Del.2003) Chapter 11 case illustrates the importance of valuation at confirmation, and provides guidance on valuations in this context. The details of the Exide case, capital tiers, obligations and reorganization plan were complex, which made the computation of value even more critical. There were significant differences of opinion between the valuations prepared by the debtor versus those done by the creditors. In the end, the court favored the Committee’s valuation. In each valuation the same three methods were utilized: Comparable Company Analysis, Transaction Analysis and Discounted Cash Flow. The experts differed in the underlying data and multiples used in applying these methods. The court sided with the adjustments that took a forward-looking approach and addressed the “taint” of the bankruptcy on the company’s worth, while avoiding subjective adjustments to get to a “market” value based upon historical performance exclusive of the bankruptcy. Confirmation is not the end of the bankruptcy process as much as all parties would like to think. Distributions to creditors can come under challenge with claims of fraudulent transfers and inappropriate preference payments. Transfers by the DIP for “less than reasonable equivalent value” under 548(a)(1)(B) or constructive fraud will have to defend those claims relevant to the value. Preferential payments or transfers made within 90 days before the bankruptcy or determination of insolvency can be challenged by the creditors as well.
A valuation expert should be engaged as early as the confirmation phase by all parties in the case of a Chapter 11 filing as the expert is often able to influence the court’s decisions based upon supported and accepted methodologies. This is better for parties, assisting in securing a “win-win” situation. Author: Carlene Gaydosh Carlene Gaydosh, CPA, is a Certified Forensic Financial Analyst (CFFA) and a shareholder with the Las Vegas office of Kafoury, Armstrong & Co. She specializes in taxation, litigation support and business valuation. Article Source: http://EzineArticles.com/?expert=Carlene_Gaydosh
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For a business filing bankruptcy, all of the business partners are in some way impacted. Consult with a business bankruptcy lawyer to understand how your bankruptcy filing can impact your business partners and what they need to do to protect themselves, their interest in the business and how you can maintain a business partnership going forward.
If you own a business that is registered as a partnership, and you find yourself in the position of having to file for personal bankruptcy protection, what happens to your business? Does personal bankruptcy have to mean small business bankruptcy as well?
Owning a partnership means that your personal and business finances are one and the same. It also means the same for your partners. Each partner is responsible for the entirety of the business’s debts.
Since your personal debts and your business debts are the same, they cannot be separated when you file for bankruptcy protection. This means that your personal assets and your business assets will both be listed in your bankruptcy paperwork.
Many of your personal assets will be considered exempt under a Chapter 7 bankruptcy – meaning that you will get to keep these assets even though you are wiping out your debt. Unfortunately, this is usually not the case when it comes to business assets. Most of these assets will become the property of the estate, and will be liquidated to pay your creditors for your debt.
Unless your partners can replace these assets, this usually means that your partnership will have to shut down. There are a couple of options that can save your business, though. First, you can file for Chapter 13 bankruptcy protection instead of filing chapter 7. This gives you the ability to repay your debts over a period of time – usually 3 to 5 years. Although Chapter 13 doesn’t erase your debts, it will allow you to keep your business assets so that you and your partners can continue operating the business.
The other option is to incorporate the business. This will help separate your personal and business liability. While the estate will become the owner of your share of the business when you file bankruptcy, you have the option of buying back your stock at fair market value. Often, the fair market value will be less than the amount of debt you owe, so it can be a less expensive way of obtaining debt relief while still maintaining your business.
Author: Jay Fleischman
Article Source: http://EzineArticles.com/?expert=Jay_Fleischman
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With a business filing bankruptcy, much of the success or failure of the bankruptcy is on how well you and your business interests are represented by your business bankruptcy lawyer. You need to be prepared to find the right one, using referrals, asking questions and understanding how they will counsel and represent you. Your business bankruptcy attorney works for YOU, so make sure you do your due diligence to find the best one.
You must seek the professional guidance of a business bankruptcy lawyer if you are filing for business bankruptcy. Filing for business bankruptcy is very complicated, as there are so many factors to take into consideration. You obviously want everything to go smoothly and a business bankruptcy lawyer is there to ensure that everything goes smoothly.
Find A Good Lawyer
Your first job when you file for business bankruptcy is to find yourself a good and professional bankruptcy attorney who specializes in business bankruptcies. You do not want to do this at the last minute, because you would then end up settling for a mediocre attorney. Furthermore, your business bankruptcy lawyer will not have enough time to prepare your case.
To find a good attorney you can go online and do some extensive research on online bankruptcy lawyer. Make a list of names that you think are worth considering and interview each one of them. Your friends or family members, who have gone through a similar experience, can also recommend you a name. Your personal lawyer is another person whom you can ask for referrals.
If you are not clear about the kind of corporate bankruptcy legal representative or business bankruptcy lawyer you want, it would help you to spend a day or so at the bankruptcy court. Watch the lawyers representing their clients. You will then know the kind of lawyer you want.
Interview
When you go to interview a lawyer, do not hesitate asking all sorts of questions relating to your case. Inquire about his/her years of experience. Ask whether he/she has experience in handling your type of cases or not. Also pay attention to the type of office the lawyer has. An untidy and unorganized office is a negative reflection on the capability of a lawyer. Thus you should stay away from such a legal representative.
After you have chosen your bankruptcy attorney, it would help you to find out more about business bankruptcy. Your knowledge on business bankruptcy will empower you to take the right decisions at the right time. Your attorney would be able to provide you all the information that you need on the subject. Inquire especially about Chapter 7 and Chapter 11 of bankruptcy, because they deal with business bankruptcy.
Chapter 7 deals with the liquidation of assets. When you file for Chapter 7, the court will appoint a trustee, whose main job is to sell all your assets. Under Chapter 11, US Trustee will appoint one or several committees, who will come up with a reorganization plan.
Your business bankruptcy lawyer is the best person to guide you when it comes to deciding which chapter to file for. Right decision at this time will ensure that the bankruptcy process goes smoothly for you.
Author: Ashlay Tyler
Article Source: http://EzineArticles.com/?expert=Ashlay_Tyler
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For a business filing bankruptcy, there are a few options. You should consult with a business bankruptcy lawyer to ensure that you are selecting the right option for your business, kind of business, amount of business debt and whether or not your business would be viable once it emerges from the bankruptcy.
No doubt, this is a tough economy, and many small business are struggling. However, with the right business bankruptcy attorney, you may be able to save your business and continue to live the dream of being a small business owner.
Small businesses can sometimes have difficulty in succeeding in the global competitive market. They can sometimes face financial problems and filing for small business bankruptcy may seem the solution. However, before filing, business owners should know what type to file.
There are three bankruptcy types that business owners can file depending on the type of business they have.
First, Chapter 7 bankruptcy or liquidation: This is the best choice for businesses having no possible future. This can be filed by sole proprietorships, wherein the owner is responsible for all assets and liabilities of the firm, and corporations and partnerships, which have legal entities separated from the owner. This is also filed when a company has too many debts that restructuring is not possible or if the company does not have any substantial assets. For small business bankruptcy, this type could mean that the business is over.
With liquidation, a trustee is appointed to take possession of the assets of the business and distribute them among the creditors. The sole proprietor then receives a discharge or is released from any debt obligations at the end of the case.
Second, Chapter 11 bankruptcy: this is best suited for companies, which still have a possible future. Sole proprietorships, and corporations and partnerships can file this. But this is complex and success is sometimes minimal.
For small business bankruptcy, this type means the company plans for reorganization and continuation of the business. Nevertheless, reorganization is done under a court appointed trustee, the owner of the company, and will be shown to creditors. Creditors will vote on and approve the plan. The plan will provide a period for the company to pay their creditors. However, confirmation can sometimes take a year to finalize.
Third, Chapter 13 bankruptcy: this is usually reserved for consumers. However, this can also be filed by sole proprietorship. Small business bankruptcy of this type entails the firm to submit a repayment plan stating how the company will repay the debts. Repayment depends on earnings, debts and property ownerships. Filing this type could save the owner from losing personal assets.
Small business bankruptcy can be a solution to a company’s debt but before deciding to file, consult an attorney first. They can recommend the type to file and might even recommend other options that will help save your company without filing.
Author: Naomi Smith
Article Source: http://EzineArticles.com/?expert=Naomi_Smith
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