With narrow exceptions, when a bankruptcy petition is filed, an “automatic stay” comes into effect which prevents the commencement or continuation of any litigation or proceeding against the debtor or property of the bankruptcy estate. Bankruptcy courts may grant “relief” from the automatic stay to allow a creditor to continue litigation filed against the debtor in a non-bankruptcy forum before the bankruptcy case was filed.

In our latest Bankruptcy Byte, Andrew Ditlevsen explains the how, why and what if concerning proof of claims and claim litigation.

On March 27, 2020, President Donald J. Trump signed a $2 trillion stimulus package in response to the unprecedented chilling impact of COVID-19 on the U.S. economy. With the goal of providing widespread economic relief to an economy which unexpectedly has ground to a halt, the Coronavirus, Aid, Relief and Economic Security Act (“CARES Act”) temporarily provides greater access to bankruptcy relief for small businesses.

California law allows a commercial lender to recover default interest from a borrower under certain circumstances. Separately, bankruptcy law permits a secured creditor with a lien on collateral valued more than the debt to recover its default interest from the bankruptcy estate. Both state and federal law mandate that the default rate of interest should not be a penalty. However, these principles do not address what happens when the borrower or bankruptcy trustee objects to a lender’s recovery of its default interest on the grounds that such interest constitutes an unenforceable penalty.

Congress recently passed and the President signed into law the Small Business Reorganization Act of 2019. This Act will provide broader bankruptcy relief to individuals engaged in business with aggregate debts of $2,725,625 or less. This debt limit is subject to adjustment every three years.

In a bankruptcy, a commercial lender with a lien on collateral valued more than the debt can demand to be paid default interest provided in the loan only to be faced with an objection by the borrower or trustee that the default interest constitutes an “unenforceable penalty” under California Civil Code section 1671(b). A recent decision by the District Court for the Central District of California, however, holds that section 1671(b) does not apply to a default interest rate imposed upon maturity as a matter of law.

This week, Pacific Gas & Electric (“PG&E”), the state’s largest utility, filed for Chapter 11 bankruptcy protection in the Northern District of California. PG&E claims over $50 billion in assets and $50 billion in liabilities, but has not yet filed the disclosures that identify its contract counterparties, creditors and other business partners who have an interest in its bankruptcy case.

It happens all too often: a company declares bankruptcy and then the company’s bank, vendors, or other creditors are forced to return a payment that the company made before declaring bankruptcy because the payment was a “fraudulent transfer” under the bankruptcy code. When that happens, the creditor typically files a proof of claim in the bankruptcy case to recover its payment. To succeed, the creditor must show that it provided some benefit to the debtor in exchange for its payment.

It happens all too often: a company declares bankruptcy and then the company’s bank, vendors, or other creditors are forced to return a payment that the company made before declaring bankruptcy because the payment was a “fraudulent transfer” under the bankruptcy code. When that happens, the creditor typically files a proof of claim in the bankruptcy case to recover its payment. To succeed, the creditor must show that it provided some benefit to the debtor in exchange for its payment.

One might assume that an individual debtor who makes false statements to a creditor respecting his future ability and willingness to pay a debt could not file for bankruptcy and then discharge any associated debts—especially where the creditor relied on the debtor’s statements to its detriment. As the United States Supreme Court recently decided, however, a debtor may do just that if his false statements respecting his financial condition are not made in writing.