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This chapter contains a brief description of the Bankruptcy Code, a discussion of the services that can be rendered by the accountant, and an introduction to the problems faced by accountants working in the bankruptcy area
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The debtor s rst alternatives are to locate new nancing, to merge with another company, or to nd some other basic solution to its situation that avoids the necessity of discussing its problems with representatives of creditors If none of these alternatives is possible, the debtor may be required to seek a remedy from creditors, either informally (out of court) or with the help of judicial proceedings (a) OUT-OF-COURT SETTLEMENTS The informal settlement is an out-of-court agreement that usually consists of an extension of time (stretch-out), a pro rata cash payment for full settlement of claims (composition), an issue of stock for debt, or some combination Developing an outof-court settlement may take several forms For example, the debtor, through counsel or credit association, calls an informal meeting of the creditors for the purpose of discussing its nancial problems In many cases, the credit association makes a signi cant contribution to the out-of-court settlement by arranging a meeting of creditors, providing advice, and serving as secretary for the creditors committee
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A credit association is composed of credit managers of various businesses in a given region Its functions are to provide credit and other business information to member companies concerning their debtors, to help make commercial credit collections, to support legislation favorable to business creditors, and to provide courses in credit management for members of the credit community At the creditors meeting, the debtor describes the causes of failure, discusses the value of assets (especially those unpledged) and unsecured liabilities, and answers any questions the creditors may ask The main objective of this meeting is to convince the creditors that they would receive more if the business were allowed to operate than if it were forced to liquidate and that all parties would bene t from working out a settlement In other situations, the debtor or its representative will not negotiate with the creditors as a group, but rather will work individually with, for example, the secured lenders, and attempt to reach a tentative agreement or at least develop a possible agreement and then move on to the unsecured lenders and talk with them The debtor may continue the process, meeting with individual creditors or groups of similar creditors until an agreement is reached (i) Appointment of Creditors Committee To make it easier for the debtor to work with the creditors, a committee of creditors is normally appointed during the initial meeting of the debtor and its creditors, providing, of course, the case is judged to warrant some cooperation by the creditors It should be realized that the creditors are often as interested in working out a settlement as is the debtor The creditors committee serves as the bargaining agent for the creditors, supervises the operation of the debtor during the development of a plan, and solicits acceptance of a plan once the committee has approved it Generally, the creditors committee meets immediately after appointment for the purpose of selecting a presiding of cer and counsel (ii) Plan of Settlement Provided there is enough time, it is often advisable that the accountant and the attorney assist the debtor in preparing a suggested plan of settlement for presentation and discussion at the rst meeting with creditors Typically only the largest creditors and a few representatives of the smaller creditors are invited so that the group is a manageable size for accomplishing its goals There is no set pattern for the form that a plan of settlement proposed by the debtor must take It may call for 100 percent payment over an extended period of time, payments on a pro rata basis in cash for full settlement of creditors claims, satisfaction of debt obligations with stock, or some combination A carefully developed forecast of projected operations, based on realistic assumptions developed by the debtor with the aid of its accountant, can help creditors determine whether the debtor can perform under the terms of the plan and operate successfully in the future (b) ASSIGNMENT FOR BENEFIT OF CREDITORS A remedy available under state law to a corporation in serious nancial dif culties is an assignment for the bene t of creditors In this instance, the debtor voluntarily transfers title to its assets to an assignee, who then liquidates them and distributes the proceeds among the creditors Assignment for the bene t of creditors is an extreme remedy because it results in the cessation of the business This informal liquidation device (although court-supervised in many states) is like the out-of-court settlement devised to rehabilitate the debtor, in that it requires the consent of all creditors or at least their agreement to refrain from taking action The appointment of a custodian over the assets of the debtor gives creditors the right to le an involuntary bankruptcy court petition Proceedings brought in the federal courts are governed by the Bankruptcy Code Normally it is necessary to resort to such formality when suits have been led against the debtor and its property is under garnishment or attachment or is threatened by foreclosure or eviction (c) BANKRUPTCY COURT PROCEEDINGS Bankruptcy court proceedings are generally the last resort for the debtor whose nancial condition has deteriorated to the point where it is impossible to acquire additional funds When the debtor nally agrees that bankruptcy court proceedings
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