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Bankruptcy Practice - Chapter 105 - Advising Minnesota Corporations and Other Business Organizations - 2nd Edition
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Originally from: Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Hardcover Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Electronic
Preview Page CHAPTER 105
BANKRUPTCY PRACTICE
§ 105.01 Introduction and Overview of the Bankruptcy Code
Assuming the options available under state law are undesirable or
impracticable, a debtor also may address its debts under the United States
Bankruptcy Code, which is codified under Title 11 of the United States
Code.1 Depending on the circumstances of the individual or entity
seeking bankruptcy protection, relief under the Bankruptcy Code may be
available under Chapter 7, 9, 11, 12, 13, or 15. Chapter 7 entails the
liquidation and distribution of all nonexempt property of the debtor’s
estate. The remaining Chapters envision payment of creditors’ claims
pursuant to a plan of reorganization. Individual debtors may seek relief
under Chapter 7, 11, or 13. Corporate debtors may file a bankruptcy
petition under Chapter 7 or 11. Any person who is not a railroad,
domestic or foreign insurance company, or various forms of financial
institutions may be a debtor under Chapter 7.2 Any person who is eligible
to be a debtor under Chapter 7, other than a stockbroker or commodity
broker, may be a debtor under Chapter 11.3 Any person or entity
residing, domiciled, or having a place of business or property in the
United States may be a debtor under Chapter 11.4 The Supreme Court
has held that Chapter 11 protection also is available to an individual not
engaged in business.5 In addition to the requirements, courts have held
that a debtor must file a Chapter 11 petition in good faith.6 Chapter 9 is
reserved exclusively for use by municipalities,7 while relief under
Chapter 12 is available only to family farmers.8 Chapter 15 provides a
mechanism for coordinating cross-border insolvency cases.9 Given that
corporate counsel most likely will encounter issues arising under
Chapters 7, 11, and 13, this Chapter will not discuss any matters
pertaining to Chapters 9, 12 and 15. The Bankruptcy Code is divided into Chapters 1, 3, 5, 7, 9, 11, 12, 13,
and 15. Unless specifically stated otherwise, all provisions contained in
Chapters 1, 3, and 5 apply in any case under Chapter 7, 11, or 13.10
Where the word trustee appears in these provisions, debtor in possession,
which describes a Chapter 11 debtor that continues postpetition operation
of the business, may be substituted unless otherwise noted.11 All
provisions contained in Chapter 7, 11, or 13 apply only in that Chapter.12
Thus, § 727 of the Bankruptcy Code would apply only in Chapter 7
cases, and § 1129 is applicable only in Chapter 11 cases. Matters
pertaining to jurisdiction, venue, and other matters of bankruptcy
procedure are contained in Title 28 of the United States Code. Criminal
provisions relating to the Bankruptcy Code are contained in Title 18 of
the United States Code. In addition to the provisions of the United States
Code, the Rules of Practice and Procedure in Bankruptcy govern practice
and procedure in cases under the Bankruptcy Code.13 Finally, many
districts, including Minnesota, have adopted local bankruptcy rules that
govern bankruptcy practice in that jurisdiction.
Roger J. Magnuson is a Partner at Dorsey and Whitney, LLP, where he serves as Head of the National Strategic Litigation Group and has practiced since 1973. He has been recognized as one of the top trial lawyers in the United States by major national and international publications, including Chambers International Guide to American Lawyers, which profiles the top 500 trial lawyers in the United States, Best Lawyers in America, Who's Who in American Law, and Who's Who in America. Mr. Magnuson was also recognized by a Journal of Law and Politics' survey for Judge's Choice "Wins Most Cases."
Some high profile cases that he has litigated include representation of the Florida Senate in the Bush v. Gore election controversy in 2000; and representation of the Plaintiffs in the widely publicized and studied Mall of America case. For several years he has represented, among other persons and entities, the Minnesota Twins and Major League Baseball principals and players in litigation; and has litigated national and local cases in federal and state court venues. He has appealed before the Supreme Court in a number of cases; as well as the Minnesota Supreme Court. He has authored several articles and 7 books.
Richard A. Saliterman is a Principal in Saliternan & Siefferman P.C., a full-service firm in Minneapolis established in 1976. Mr. Saliterman is a leading expert on corporate business matters, and is the author of several publications on business start-ups, franchises, and trademarks. Mr. Saliterman is the former National Judge Advocate for the U.S. Navy League, based in Washington D.C.
Contributing Editor:
Amanda Chang
Contributing Authors:
Alecia Anderson
Seth Back
John Baker
Shannon Berg
Constatin Burachek
Benjamin Carpenter
Ryan Check
Carl Christensen
Peter Fear
Michael Frasier
Aaron Hall
Catherine Hanson
Paul Harman
Amy Ithlan
Michael Kern
Chris Kuhlman
Brett Larson
Joshua Lederman
Karen Lundquist
James Magnuson
Jennifer Mead
Rao Menier
Heidi Miller
Rachael Moxon
Oliver Nelson
Scott Peitzer
Mitchell Skinner
Jonathan Stechmann
Lael Weinberger
Jonathan Wilson
Alex Zumbulyadis
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