Types And Effects Of Bankruptcy Proceedings

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CPA Regulation (REG) › Types And Effects Of Bankruptcy Proceedings

Questions 1 - 10
1

When a bankruptcy petition is filed, the automatic stay goes into effect. Under 11 U.S.C. Section 362, which of the following correctly describes the automatic stay?

The automatic stay prevents only the IRS from collecting taxes during the bankruptcy.

The automatic stay allows creditors to continue collection activities if they obtained judgment before the filing.

The automatic stay applies only to secured creditors.

The automatic stay is a court injunction that immediately halts virtually all collection actions against the debtor and the bankruptcy estate, including lawsuits, levies, foreclosures, repossessions, and wage garnishments.

Explanation

Under 11 U.S.C. Section 362, the filing of a bankruptcy petition automatically stays all actions against the debtor or the bankruptcy estate, including: lawsuits, enforcement of judgments, attempts to obtain possession or control of estate property, acts to create, perfect, or enforce liens, and acts to collect on a pre-petition claim. The stay is immediate, requires no court order, and applies to virtually all creditors. Answer A is incorrect because the stay applies to all creditors, not just the IRS. Answer B is incorrect because the stay halts even pre-judgment collection activities. Answer C is incorrect because the stay applies to both secured and unsecured creditors.

2

Under the priority scheme in 11 U.S.C. Section 507, which of the following creditors is paid first in a Chapter 7 liquidation?

General unsecured creditors.

Secured creditors with perfected liens.

Administrative expenses of the bankruptcy estate (such as trustee's fees and attorneys' fees for the estate).

Tax claims of governmental units.

Explanation

The distribution priority in Chapter 7 follows Sections 506 and 507. Secured creditors are paid first from the proceeds of their collateral (not through the Section 507 priority scheme). Among unsecured creditors, Section 507(a) establishes the following priority order: (1) administrative expenses; (2) certain involuntary case gap creditors; (3) domestic support obligations; (4) wages of employees up to $15,150; (5) employee benefit plan contributions; (6) grain farmer and fisherman claims; (7) consumer deposits; (8) government tax claims; (9) bank commitment claims; and (10) general unsecured creditors (last). Answer A (general unsecured) is last. Answer B (secured creditors) is paid from collateral proceeds before the priority scheme. Answer D (taxes) has lower priority than administrative expenses.

3

Under 11 U.S.C. Section 547, a bankruptcy trustee may avoid a preferential transfer. Which of the following elements must be established for a transfer to be a voidable preference?

The transfer must have been made to a family member of the debtor.

The transfer must have been made more than 90 days before the bankruptcy filing.

The transfer must have been made to a secured creditor.

The transfer must have been made to or for the benefit of a creditor, on account of an antecedent debt, while the debtor was insolvent, within 90 days before the bankruptcy filing (or one year for insiders), and must enable the creditor to receive more than in a hypothetical Chapter 7 liquidation.

Explanation

Under 11 U.S.C. Section 547(b), a preferential transfer has five elements: (1) a transfer of the debtor's property; (2) to or for the benefit of a creditor; (3) on account of an antecedent debt; (4) while the debtor was insolvent (presumed during the 90 days before filing); (5) made within 90 days before filing (or one year for insiders); and (6) enabling the creditor to receive more than in a Chapter 7 liquidation. Answer A incorrectly states that the transfer must be made MORE than 90 days before filing; it must be made WITHIN 90 days. Answer B is incorrect because preferences apply to unsecured creditors primarily (secured creditors are less commonly affected). Answer C is incorrect because the 90-day rule, not family relationship, is the default; family members are insiders with a one-year lookback.

4

Under 11 U.S.C. Section 548, a bankruptcy trustee may avoid a fraudulent transfer. Which of the following is a fraudulent transfer under constructive fraud?

A transfer made within two years before bankruptcy for which the debtor received less than reasonably equivalent value while insolvent or left insolvent by the transfer.

A transfer made to a secured creditor as payment of an existing debt.

A transfer made more than four years before bankruptcy to a charitable organization.

A transfer made with actual intent to delay or defraud creditors, regardless of when made.

Explanation

Under Section 548, there are two types of fraudulent transfers: (1) actual fraud - a transfer made with actual intent to hinder, delay, or defraud creditors, within two years before bankruptcy; and (2) constructive fraud - a transfer within two years before bankruptcy for which the debtor received less than reasonably equivalent value while the debtor was insolvent, became insolvent as a result, had unreasonably small remaining capital, or intended to incur debts beyond their ability to pay. Answer A correctly describes constructive fraud. Answer B describes actual fraud but overstates the lookback period (it is two years in federal bankruptcy law, though state law may extend this). Answer C describes an ordinary payment that is not a fraudulent transfer. Answer D has the timing wrong for the federal bankruptcy fraudulent transfer provision.

5

Under 11 U.S.C. Section 362(d), a secured creditor may seek relief from the automatic stay. On what grounds may relief be granted?

Relief may be granted only if the debtor consents.

Relief may be granted only for residential mortgage lenders.

Relief may be granted for cause (including lack of adequate protection of the creditor's interest in the collateral) or if the debtor has no equity in the property and the property is not necessary for an effective reorganization.

Relief may not be granted; the automatic stay is absolute.

Explanation

Under 11 U.S.C. Section 362(d), a court may grant relief from the automatic stay for: (1) 'cause,' including the lack of adequate protection of the creditor's interest in the property (e.g., declining collateral value without protection payments); or (2) with respect to a stay against an act against property, if the debtor does not have equity in the property and the property is not necessary for an effective reorganization. Adequate protection mechanisms include cash payments, additional liens, or other court-ordered protections. Answer A is incorrect because relief may be sought by motion over debtor objection. Answer C is incorrect because relief is available to all secured creditors. Answer D is incorrect because the automatic stay can be lifted by court order.

6

Under 11 U.S.C. Section 544, what is the 'strong-arm clause' and how does it benefit the bankruptcy trustee?

The strong-arm clause allows the trustee to sell estate property free and clear of all liens.

The strong-arm clause allows the trustee to recover post-petition assets for the estate.

The strong-arm clause allows the trustee to void all pre-petition security agreements.

The strong-arm clause gives the bankruptcy trustee the status of a hypothetical lien creditor, judgment creditor, and bona fide purchaser of real property as of the petition date, allowing the trustee to avoid any unperfected security interests or transfers that could have been avoided by such a creditor.

Explanation

Under 11 U.S.C. Section 544, the bankruptcy trustee (or DIP in Chapter 11) has the power of a hypothetical lien creditor, judicial lien creditor, and bona fide purchaser of real property. This 'strong-arm' power allows the trustee to avoid transfers that such hypothetical parties could have avoided under applicable state law. Most importantly, this allows the trustee to avoid unperfected security interests - if a secured creditor did not properly perfect their lien before bankruptcy, the trustee can avoid that lien, making the creditor an unsecured creditor. Answer A describes recovery of post-petition assets which is a different provision. Answer B is too broad; only unperfected interests are avoidable. Answer D describes Section 363(f) sales, a different provision.

7

Under 11 U.S.C. Section 365, the bankruptcy trustee or debtor in possession may assume or reject executory contracts. What is an executory contract?

A contract that has been fully performed by both parties.

A contract in which both parties still have material, unperformed obligations; the trustee may assume (adopt and continue) or reject (breach) the contract, with rejection treated as a pre-petition breach.

A contract for the employment of the debtor's employees.

Any contract that was signed before the bankruptcy petition was filed.

Explanation

An executory contract is one where material performance obligations remain on both sides (the most commonly cited definition comes from Professor Vern Countryman). Under Section 365, the bankruptcy trustee or DIP may assume (take over and be bound by) or reject (breach) executory contracts. Rejection is treated as a pre-petition breach, making the non-debtor party an unsecured creditor for damages. Assumption requires curing defaults and providing adequate assurance of future performance. Answer A is too broad; not all pre-petition contracts are executory. Answer C describes a fully performed contract, which cannot be executory. Answer D is a type of executory contract but does not define the concept.

8

Under 11 U.S.C. Section 523(a)(2), debts obtained by fraud are non-dischargeable. Which of the following is required to establish that a debt is non-dischargeable based on fraud?

The creditor must show the debtor was insolvent when they incurred the debt.

The creditor must prove the debtor made a material false representation with intent to deceive, the creditor justifiably relied on the representation, and suffered a loss as a proximate result.

The creditor must show the debt was incurred within 90 days of bankruptcy.

The creditor must prove the debtor filed for bankruptcy in bad faith.

Explanation

Under Section 523(a)(2)(A), to establish that a debt is non-dischargeable due to fraud, the creditor must prove: (1) the debtor made a materially false representation; (2) the debtor knew the representation was false or acted with reckless disregard for the truth; (3) the debtor intended to deceive; (4) the creditor justifiably relied on the false representation; and (5) the creditor suffered damages proximately caused by the fraud. This is similar to a civil fraud claim and must be pursued through an adversary proceeding in the bankruptcy court. Answer A (bad faith filing) is a different concept. Answer B (insolvency at time of debt) is not required for fraud. Answer C (90 days) relates to preference payments.

9

Under the Bankruptcy Code, what types of tax claims are non-dischargeable in Chapter 7?

Income taxes for which a return was due within three years before bankruptcy, income taxes assessed within 240 days before filing, taxes for which no return was filed or for which a fraudulent return was filed, and employment taxes.

Only sales taxes; income taxes are always dischargeable.

Only current-year tax liabilities; taxes from prior years are dischargeable.

All federal, state, and local tax debts regardless of age.

Explanation

Under Section 523(a)(1), certain tax debts are non-dischargeable in bankruptcy: (1) income taxes for which a return was due (including extensions) within three years before the bankruptcy petition; (2) income taxes assessed within 240 days before filing (the 240-day rule); (3) taxes that were not assessed but were assessable as of the petition date; (4) taxes for which no return was filed or for which a fraudulent return was filed; and (5) employment trust fund taxes. Older tax debts that meet all these tests (return filed on time, assessed more than 240 days ago, not fraudulent) may be dischargeable. Answer B is incorrect because older tax debts may be dischargeable. Answer C is incorrect because even older tax debts may be non-dischargeable under the listed tests. Answer D is incorrect because all types of federal taxes may be non-dischargeable.

10

Under the Bankruptcy Code, what is a 'cram down' in the context of a Chapter 11 plan?

A cram down forces shareholders to accept immediate termination of their equity interests.

A cram down allows the court to confirm a Chapter 11 plan over the objection of a dissenting class of creditors if the plan does not discriminate unfairly, is fair and equitable to that class, and meets the absolute priority rule.

A cram down reduces the principal amount of all secured debts to their collateral value.

A cram down occurs when the trustee forces a liquidation over the debtor's objection.

Explanation

Under 11 U.S.C. Section 1129(b), when a class of creditors rejects a Chapter 11 plan, the court may still confirm the plan over the objection (cram it down) if: (1) at least one impaired class has accepted the plan; (2) the plan does not discriminate unfairly against the dissenting class; and (3) the plan is 'fair and equitable' to the dissenting class. For secured creditors, fair and equitable requires that they retain their liens and receive at least the present value of their claims. For unsecured creditors, fair and equitable requires the absolute priority rule: senior creditors must be paid in full before junior creditors or equity holders receive anything. Answer A describes an involuntary conversion. Answer C partially describes one aspect of cram down treatment for secured creditors but does not define the full concept. Answer D overstates the equity result.

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