Bankruptcy law has seen many changes in 2020 and 2021. Some of these were enacted in response to COVID, but many other changes were included in the Bankruptcy Code before the pandemic. This article highlights some of these changes and their impact on the rights of lenders, trade creditors, suppliers, landlords, tenants, and debtors.
With many bankruptcy cases looming on the horizon as a result of the pandemic and the measures taken to contain it, prudent creditors are reacquainting themselves with their rights, including the right of reclamation. Reclamation is codified in section 2-702(2) of the Uniform Commercial Code, and allows a seller who discovers that the buyer is insolvent to reclaim the goods upon demand within 10 days after delivery. However, this right is junior to the rights of good faith purchasers and lien creditors.
The recently enacted Small Business Reorganization Act ("SBRA") is available to help "small business debtors" with debts of no more than $2,725,625 (temporarily increased to $7,500,000 for one year by the CARES Act). Although there are several requirements that must be satisfied in order to qualify as a "small business debtor" under the Bankruptcy Code, courts have recently considered whether an individual debtor must be engaged in "commercial or business activities" at the time of his or her bankruptcy filing. Both courts which have considered the question have answered "no."
The recently enacted Small Business Reorganization Act ("SBRA") is available to help "small business debtors" with debts of no more than $2,725,625 (temporarily increased to $7,500,000 for one year by the CARES Act). Although there are several requirements that must be satisfied in order to qualify as a "small business debtor" under the Bankruptcy Code, courts have recently considered whether an individual debtor must be engaged in "commercial or business activities" at the time of his or her bankruptcy filing. Both courts which have considered the question have answered "no."
The Fifth Circuit has waded into the debate on whether the SBA must make Paycheck Protection Program ("PPP") loans available to debtors in bankruptcy, clearly answering "No."
In June of 2020, Miller Canfield reportedthat the Fifth Circuit held that a Texas bankruptcy court had exceeded its authority when it ordered the SBA Administrator to make a Paycheck Protection Program (PPP) loan available to a debtor in bankruptcy.
In Michigan, the general rule is that only a real party in interest may initiate a lawsuit. MCR 2.201(B). Although it is usually easy to identify the proper party (or parties), it becomes harder if a would-be plaintiff files for bankruptcy protection before initiating the lawsuit. A recent decision by the Michigan Court of Appeals illustrates the difficulty, and highlights how important it is to pay attention to the debtor’s bankruptcy schedules.
The Uniform Commercial Real Estate Receivership Act (“UCRERA”), adopted by Michigan in 2018, originally applied only to receiverships over commercial real estate. An amendment effective October 15, 2020, shortens the name of the Act to the “Receivership Act” and makes the Act applicable generally to commercial and industrial (“C&I”) loans that have no real estate collateral. This article summarizes some of the changes and the interplay between receivership and bankruptcy.
The “Coronavirus Aid, Relief and Economic Security Act” (CARES Act) includes bankruptcy-specific provisions that provide enhanced relief for individuals and businesses that have been negatively impacted by the coronavirus outbreak.