Understanding Bankruptcy Terms – You need to know the lingo.

341 Meeting – First Meeting of Creditors, this is the first hearing you attend after filing for bankruptcy. It is held with a Trustee, not a judge. It is held in a room not a courtroom.

Adequate Protection – The right of a party with an interest in the debtor’s property (such as a secured creditor) to assurance that its interest will not be diminished during the bankruptcy proceedings.

Administrative Claim – Debt incurred by the debtor, with court approval, after the bankruptcy filing, includes the necessary costs of preserving the estate, wages, salaries, court costs, lawyers’ fees, accountants’ fees, trustees’ expenses, etc.

Adversary Proceeding – A lawsuit filed in bankruptcy court which is related to the debtor’s bankruptcy case.

Allowed Claim – A claim of a creditor that is approved by the court for satisfaction under the plan of re-organization.

Arrears – The amount that is unpaid and overdue as of the date the bankruptcy case is filed.

Asset – Personal possessions of value, including cash, real estate, vehicles and investments. See also: Exemption

Automatic Stay – The suspension of actions, such as debt collection or foreclosure, against the company or consumer in bankruptcy. Occurs automatically when the bankruptcy petition is filed. This action protects the debtor from creditors seeking to seize its assets. It also protects some creditors in that it prevents one creditor from obtaining an excessive share of the assets of the bankrupt to the exclusion of the other creditors.

Avoidance – The Bankruptcy Code permits the debtor to eliminate (avoid) some kinds of liens that interfere with (or impair) an exemption claimed in the bankruptcy. Most judgment liens that have attached to the debtor’s home can be avoided if the total of the liens (mortgages, judgment liens and statutory liens) is greater than the value of the property in which the exemption is claimed. This is sometimes called “lien stripping.”

Bankrupt – This is a non-technical term and is not used in the Bankruptcy Code.

Bankruptcy – A non-technical term for a legal state of insolvency.

Bankruptcy Code – The name given to the statutory body of bankruptcy laws after the Bankruptcy Reform Act of 1978 or Title 11 of the United States Code governs bankruptcy proceedings. Bankruptcy is a matter of federal law and is, with the exception of exemptions, the same in every state. When federal bankruptcy law conflicts with state law, federal law controls.

Bankruptcy Court – The federal tribunal where cases under the Bankruptcy Code are litigated.

Bankruptcy Estate – Generally, the property of the debtor that is subject to the jurisdiction of the bankruptcy court.

Bankruptcy Petition – The document filed with the court to initiate a bankruptcy proceeding.

Bankruptcy Rule 2004 – A provision of the Bankruptcy Code that allows one party in a bankruptcy proceeding to compel discovery or other examination against another party.

Business Bankruptcy – A bankruptcy categorized by the U.S. courts as a business bankruptcy, U.S. Administrative Office of the Courts subdivides bankruptcies into business and non-business.

Business Failure – An economic assessment of the viability of a business, it means that a firm is either not earning what is expected (i.e. it has a below normal rate of return) or is not meeting its obligations. It is not synonymous with bankruptcy because bankruptcy is more of a formal and legal definition. A failing company is not necessarily a bankrupt company and vice-versa.

Cash Collateral – Cash and cash equivalents held by the debtor in Chapter 11 subject to liens of other parties.

Chapter 11 – Reorganization proceedings, generally for business entities; the debtor maintains control of the business in Chapter 11 until the Court appoints a trustee.

Chapter 9 – Bankruptcies of municipalities; only a few of these are filed each year.

Chapter 7 – the most common bankruptcy chapter filed. Liquidation proceeding; non-exempt assets can be sold by a trustee and the company ceases operation.

Chapter 13 – Bankruptcy proceeding for a debtor with the intention of re-scheduling the debt (rather than liquidating the individual’s assets and debt; an individual files under Chapter 7 to liquidate); Chapter 13 is referred to as wage-earner bankruptcy, personal bankruptcy or consumer bankruptcy; Chapter 13 cannot be used by a partnership or a corporation; it can be used by a sole proprietorship.

Chapter 12 – Family farmer bankruptcy. Only a family owned farm business can qualify for Chapter 12 and have 50% of its income from farming operations.

Chapter 20 – An unofficial term describing the filing of a Chapter 7 proceeding followed by a Chapter 13. The Chapter 7 filing eliminates unsecured debts while the Chapter 13 filing handles liens.

Claims – Rights to repayment made by creditors against a debtor; they may be liquidated, unliquidated, fixed, contingent, matured, secured, unsecured, subordinated, legal, or equitable.

Class – Each of the different categories of claims against a debtor.

Collateral – The property which is subject to a lien. A creditor with rights in collateral is a secured creditor and has additional protections in the Bankruptcy Code for the claim secured by collateral. The measure of the secured claim is the value of the collateral available to secure the claim: it is possible to have a lien on property that is subject to a senior lien or liens such that the security available to pay the claim is really without value to the junior creditor. The general rule with respect to liens is “First in time, first in right.”

Confirmation – The final approval by the bankruptcy court of a debtor’s plan of reorganization. Confirmation takes place after the plan has been approved by creditors.

Contested Matter – A dispute among the parties to a bankruptcy proceeding, instituted by the filing of a motion of the court.

Convenience Claims – Under a plan of reorganization or liquidation, claims that are small and numerous are often grouped into a single class and settled for cash for administrative convenience.

Conversion – Changing chapters in bankruptcy (e.g., converting from Chapter 11 to Chapter 7 or vice-versa).

Cramdown – If the loan on a motor vehicle is 910 days old or older, you may only have to pay what the car is actually worth, not what the balance of that loan is in a Chapter 13. For example: If you owe $25,000 on your vehicle and its value is only $10,000, you would only pay $10,000 through your Chapter 13 Plan.

Confirmation – Confirmation of a Chapter 13 Plan of reorganization over the objections of one or more classes of creditors.

Credit Report – A report outlining an individual’s credit history, public records and credit worthiness.

Creditor – The person or organization to whom the debtor owes money or has some other form of legal obligation.

Debtor – The entity seeking protection from creditors under the bankruptcy laws.

Debtor-in-Possession – The debtor who remains in control of operations; as opposed to having a trustee operate the company.

Default – The failure by an entity to abide by the covenants in a debt obligation or other agreement to which it is a party.

Delinquency -Failure to make payments when payments are due.

Denial of Discharge – Penalty for debtor misconduct with respect to the bankruptcy case or creditors as a whole. When the debtor’s discharge is denied, the debts that could have been discharged in that case cannot be discharged in any subsequent bankruptcy.

Discharge – The satisfaction or elimination of the debts of the debtor by the bankruptcy court.

Dischargable Debt – Debt that can be eliminated in a bankruptcy.

Disclosure Statement – A comprehensive disclosure document sent to creditors where they are asked to vote on a plan of reorganization in Chapter 11.

Dismissal – The bankruptcy court can dismiss a case if it deems that the debtor should not have filed, or that a plan can never be confirmed, or not complied with.

Docket – The schedule on which the clerk of the court records all motions, pleadings, memoranda, orders and all other court filings.

Effective Date – The date on which a plan of reorganization is implemented; it usually occurs after all the conditions to a plan of reorganization have been satisfied.

Equity – A homeowner’s financial interest in a property. Equity is the difference between the value of the property and the amount still owed on its mortgage and other liens.

Executory Contract – A contract in which some or all of the obligations of each party have not yet been completed.

Exempt – Property that is exempt is removed from the bankruptcy estate and is not available to pay the claims of creditors. The debtor selects the property to be exempted from the statutory lists of exemptions available under the law of his state. The debtor gets to keep exempt property for use in making a fresh start after bankruptcy.

Exemptions – Exemptions are the lists of the kinds and values of property that are legally beyond the reach of creditors or the bankruptcy trustee. What property may be exempted is determined by state and federal statutes, and varies from state to state.

Failure – An economic assessment of the viability of a business, it means that a firm is either not earning what is expected (i.e. it has a below normal rate of return) or is not meeting its obligations. It is not synonymous with bankruptcy because bankruptcy is more of a formal and legal definition. A failing company is not necessarily a bankrupt company and vice-versa.

Fair Market Value -The highest price that a buyer, willing but not compelled to buy, would pay, and the lowest a seller, willing but not compelled to sell, would accept. Foreclosure: The legal process by which a borrower in default under a mortgage is deprived of his or her interest in the mortgaged property.

Fee Examiner – Appointed by the court to monitor fees paid to professionals in bankruptcy cases.

Filing Fees – fees to file a case, for Chapter 7 the fee is $299, for Chapter 11 it is $830 and for Chapter 13 it is $274.

First Meeting of Creditors (341 meeting) – A mandatory meeting between creditors and the debtor. It is usually held within a month of the filing of bankruptcy, but often occurs later when the debtor has filed its schedules of financial information.

Fraudulent Conveyance – The transfer of valuable assets from a company which: A) occurs when the company is technically insolvent, B) renders the company insolvent, or C) is made for less than adequate consideration. The spate of leveraged buyouts and other highly leveraged transactions in the 1980s has spurred a number of fraudulent conveyance allegations in recent years.

Gap Period – The period between the filing of an involuntary petition and the dismissal of the petition, the entry of an order for relief or the filing of a voluntary petition (whichever is the outcome).

Garnishment – A court ordered method of debt collection in which 25% of a person’s salary is paid to a creditor. The process by which a judgment creditor seizes money, which is owed to his judgment debtor, from a third party known as a garnishee.

General, Unsecured Claim – Creditor’s claim, without a priority, for payment for which the creditor holds no security (or collateral). If the available funds in the estate extend to payment of unsecured claims, the claims are paid in proportion to the size of the claim relative to the total of claims in the class of unsecured claims.

Impairment – When a plan of reorganization alters the contractual rights of a class of holders of claims, that class is deemed to be impaired.

Insolvency – Another term used to describe a firm that is failing; generally it means that a firm’s liabilities exceed its assets or that it is unable to satisfy its obligations as they come due.

Interests – The equity interests of stockholders are often referred to in bankruptcy documents merely as “interests.”

Involuntary Bankruptcy – A bankruptcy initiated by at least three creditors holding unsecured claims aggregating at least $5000 against the debtor.

Joint Administration – The combining of two or more bankruptcy proceedings for administrative convenience. Frequently, the cases of affiliated entities are jointly administered. Joint administration does not necessarily result in substantive consolidation

Lien – An interest in real or personal property which secures a debt; the lien may be voluntary, such as a mortgage in real property, or involuntary, such as a judgment lien or tax lien.

Liquidating Reorganization – An informal term for a Chapter 11 proceeding when the company is essentially liquidated through one or more asset sales.

Liquidation – The dissolution of a company (or individual); usually operations cease and assets are sold by auction.

Liquidation Value – The aggregate value of a business if its assets are sold piecemeal.

Matrix – A mailing list of creditors of the debtor.

No Asset Case – A debt that cannot be eliminated in bankruptcy. Non dischargeable debts remain legally enforceable despite the bankruptcy discharge.

Non-Business Bankruptcy – A bankruptcy categorized by the U.S. courts as a non-business bankruptcy; the debtor in a non-business bankruptcy is usually either an individual or a family farm; data from the U.S. Administrative Office of the Courts subdivides bankruptcies into business and non-business.

Non-Dischargable – A debt that cannot be eliminated in bankruptcy. Non dischargeable debts remain legally enforceable despite the bankruptcy discharge.

Perfection – When a secured creditor has taken the required steps to perfect his lien, the lien is senior to any liens that arise after perfection. A mortgage is perfected by recording it with the county recorder; a lien in personal property is perfected by filing a financing statement with the secretary of state. An unperfected lien is valid between the debtor and the secured creditor, but may be behind liens created later in time, but perfected earlier than the lien in question. An unperfected lien can be avoided by the trustee.

Period of exclusivity – A debtor in Chapter 11 has the exclusive right to file a plan of reorganization for the first 120 days of its bankruptcy.

Personal Bankruptcy – Filed by an individual; also called a household bankruptcy, consumer bankruptcy, or wage-earner bankruptcy. (see Chapter 13 and also Chapter 12).

Personal Property – Property that is not real property or affixed to real property, such as cars, stock, furniture, etc.

Petition – The document that commences a bankruptcy proceeding.

Plan of Reorganization – The document setting forth how a bankrupt company plans to satisfy its creditors.

Property of the Estate -The property that is not exempt and belongs to the bankruptcy estate.

Post-Petition – Occurring after the filing of a petition.

Preference – A payment by a debtor made during a specified period (90 days or one year) prior to the filing that favors one creditor over others.

Prepackaged Bankruptcy – A situation where a company and its creditors agree to a plan of reorganization before the company files a bankruptcy petition. The court then confirms the plan and the company emerges from bankruptcy quickly.

Pre-Petition – Occurring before the filing of a bankruptcy petition.

Priority Claims – Administrative expenses and salaries, wages, employee benefits, customer deposits and taxes which occurred pre-petition.

Proof of Claim – Form filed by a creditor setting out its claims against a bankruptcy debtor.

Reaffirm – The debtor can chose to reaffirm debts that would otherwise be discharged by the bankruptcy. Generally, when a debt is reaffirmed, the parties to the reaffirmed debt have the same rights and liabilities that each had prior to the bankruptcy filing: the debtor is obligated to pay and the creditor can sue or repossess if the debtor doesn’t pay

Relief from Stay – A creditor can ask the judge to lift the automatic stay and permit some action against the debtor or the property of the estate. If the motion is granted, the moving party is free to take whatever action the court permits.

Reorganization – The resolving of a Chapter 11 bankruptcy by the emergence of the debtor as a viable business. Generally, the company agrees with creditors on a plan for payment of their claims and emerges from Chapter 11 after the plan is confirmed by the court.

Repossession – Once in default, as defined by the creditor in the security agreement, occurs, the creditor can: repossess the collateral by self-help (depending on state law) or with the aid of a court order, dispose of the collateral by public or private foreclosure sale, retain the collateral in satisfaction of the debt, terminate the debtor’s right of redemption, add the costs of repossession and foreclosure to the unpaid balance of the debt, and pursue the debtor for any remaining unpaid balance or deficiency.

Retired Benefits Bankruptcy Protection Act –Allows the debtor to continue to pay insurance premiums for employees during the bankruptcy.

Rule 2004 Exam– A provision of the Bankruptcy Code that allows one party in a bankruptcy proceeding to compel discovery or other examination against another party.

Schedules – The debtor must file the required lists of assets and liabilities to commence a bankruptcy case, called the schedules.

Secured Creditors – One of two general types of creditors of a company. Secured creditors have a lien on property.

Secured Debt -A claim secured by a lien in the debtor’s property by reason of the debtor’s agreement or an involuntary lien such as a judgment or tax lien. The creditor’s claim may be divided into a secured claim, to the extent of the value of the collateral, and an unsecured claim, equal to the remainder of the total debt.

Set-off – The ability to discharge or reduce a debt by applying a counter claim between the same parties.

Skeleton Filing – Term used at bankruptcy courts to describe a bankruptcy filing in which not all the necessary forms have been filed so long as the balance of required forms are forthcoming within a certain period of time.

Small Claims – Under a plan of reorganization or liquidation, claims that are small (e.g. in the hundreds or thousands of dollars range) and numerous are often grouped into a single class and settled for cash for administrative convenience.

Straight Bankruptcy – An informal term for a Chapter 7 bankruptcy or liquidation.

Substantial Abuse – A term that refers to the abusing of the privilege to file a petition.

Substantive Consolidation– The combination of the estate of one debtor with the estate of one or more other debtors and the application of the combined estate to satisfy their combined liabilities.

Super-Priority Claim – An administrative claim that will be paid ahead of other administrative and priority claims.

Trustee – An agent of the court who manages the property of the debtor for the benefit of the creditors. The court appoints a trustee in most Chapter 7 cases and in Chapter 11 cases when it determines that the debtor’s management should not remain in control.

United States Trustee – An agent of the U.S. Department of Justice appointed to assist in bankruptcy cases. The U.S. Trustee administers many of the duties of the court including appointing committees, appointing trustees and examiners, scrutinizing bankruptcy documents, etc.

Unsecured Creditor – One of two general types of creditors of a company. The unsecured creditors have no liens on the property of the company.

Unsecured Debt – A claim or debt is unsecured if there is no collateral that is security for the debt. Most consumer debts are unsecured.

Voluntary Bankruptcy – Bankruptcy filed by the debtor itself, the U.S. Administrative Office of the Courts subdivides bankruptcies into voluntary and involuntary.

Wage-Earner Bankruptcy – Bankruptcy proceedings for an individual with the intention of re-scheduling the individual’s debt (rather than liquidating the individual’s assets and debt; an individual files under Chapter 7 to liquidate); Chapter 13 is referred to as wage-earner bankruptcy, personal bankruptcy or consumer bankruptcy.

Workout – An arrangement, outside of bankruptcy, by a debtor and its creditors for payment or re-scheduling of payment of the debtor’s obligations.