Berlin based Dr. Schulte and Partner Rechtsanwälte mbB concentrate on cases and claims regarding financial and banking backgrounds. In the U. S. the legal system behind bankruptcy proceedings is diversified. Clients operating in both German and anglo-american legal systems should know about the differences.
Article I, Section 8, of the United States Constitution authorizes Congress to enact „uniform Laws on the subject of Bankruptcies.“ Under this grant of authority, Congress enacted the „Bankruptcy Code“ in 1978. The Bankruptcy Code, which is codified as title 11 of the United States Code, has been amended several times since its enactment. It is the uniform federal law that governs all bankruptcy cases.
“Bankruptcy Rules – Bankruptcy Code”
The procedural aspects of the bankruptcy process are governed by the Federal Rules of Bankruptcy Procedure (often called the „Bankruptcy Rules“) and local rules of each bankruptcy court. The Bankruptcy Rules contain a set of official forms for use in bankruptcy cases. The Bankruptcy Code and Bankruptcy Rules (and local rules) set forth the formal legal procedures for dealing with the debt problems of individuals and businesses.
There is a bankruptcy court for each judicial district in the country. Each state has one or more districts. There are 90 bankruptcy districts across the country. The bankruptcy courts generally have their own clerk’s offices.
The court official with decision-making power over federal bankruptcy cases is the United States bankruptcy judge, a judicial officer of the United States district court. The bankruptcy judge may decide any matter connected with a bankruptcy case, such as eligibility to file or whether a debtor should receive a discharge of debts. Much of the bankruptcy process is administrative, however, and is conducted away from the courthouse. In cases under chapters 7, 12, or 13, and sometimes in chapter 11 cases, this administrative process is carried out by a trustee who is appointed to oversee the case.
A debtor’s involvement with the bankruptcy judge is usually very limited. A typical chapter 7 debtor will not appear in court and will not see the bankruptcy judge unless an objection is raised in the case. A chapter 13 debtor may only have to appear before the bankruptcy judge at a plan confirmation hearing. Usually, the only formal proceeding at which a debtor must appear is the meeting of creditors, which is usually held at the offices of the U.S. trustee. This meeting is informally called a „341 meeting“ because section 341 of the Bankruptcy Code requires that the debtor attend this meeting so that creditors can question the debtor about debts and property.
Chapter 11, entitled Reorganization, ordinarily is used by commercial enterprises that desire to continue operating a business and repay creditors concurrently through a court-approved plan of reorganization. The chapter 11 debtor usually has the exclusive right to file a plan of reorganization for the first 120 days after it files the case and must provide creditors with a disclosure statement containing information adequate to enable creditors to evaluate the plan. The court ultimately approves (confirms) or disapproves the plan of reorganization. Under the confirmed plan, the debtor can reduce its debts by repaying a portion of its obligations and discharging others. The debtor can also terminate burdensome contracts and leases, recover assets, and rescale its operations in order to return to profitability. Under chapter 11, the debtor normally goes through a period of consolidation and emerges with a reduced debt load and a reorganized business.
Für unsere deutschsprachigen Leser hier eine kurze Zusammenfassung:
Der oben zitierte Text beschäftigt sich mit den Hintergründen und den behördlichen Vorschriften rund um den Komplex Insolvenz in den Vereinigten Staaten von Amerika.
Dla naszych międzynarodowych klientów istotne informacje w języku polskim:
Cytowany tekst dotyczy przepisów otaczających kompleks upadłości w Stanach Zjednoczonych Ameryki.