Category: Small Business

  • Federal Reserve Emergency Lending as a Coronavirus Response

    Posted by

    Adam Levitin

    Senator Elizabeth Warren has put out a plan for mitigating the economic fallout from the coronavirus. Of particular note is that she is proposing having the Federal Reserve use its emergency lending power to support businesses affected by the coronavirus in order to ensure that they are able to provide paid health care leave to affected employees and avoid mass layoffs.  

    This post addresses whether the Fed has the legal authority for such lending, what precedent exists, how it differs materially from the 2008 bailouts, and why it's a good idea. (Full disclosure: I consulted with the Warren campaign on this plan.)  

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  • Trump Administration Declares Open Season on Consumers for Subprime Lenders

    Posted by

    Adam Levitin
    The Trump administration has just proposed a rule that declares open season on consumers for subprime lenders. The Office of Comptroller of the Currency and the Federal Deposit Insurance Corporation (on whose board the CFPB Director serves) have released parallel proposed rulemakings that will effectively allowing subprime consumer lending that is not subject to any interest rate regulation, including by unlicensed lenders.

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  • Small Biz Reorg Act Sleeper Innovations

    Posted by

    Jason Kilborn

    Two aspects of the Small Business Reorganization Act of 2019 intrigued me as I looked more closely at this important new twist on Chapter 11 for the other 99%.

    First, I thought the new SBRA procedure might be a fairly snooze-worthy Chapter 13 on protein supplements (i.e., not even steroids) because the current Chapter 13 debt limit (aggregate) is $1,677,125, while the new SBRA aggregate debt limit is less than double this, at $2,725,625 [note to the ABI: please update the figures in your online Code for the April 2019 indexation]. A couple of obvious and another non-obvious point cut in opposite directions here, it seems to me. First, Chapter 13 is not available to entities (e.g., LLCs), and for individuals, the Chapter 13 debt limits are broken out into secured and unsecured, while the SBRA figure is not. So the SBRA is significantly more hospitable to any small business debtor with only $500,000 in unsecured debt or, say, $1.5 million in secured debt. Flexibility is a virtue, so maybe the SBRA is just a meaningfully more flexible Chapter 13? No, as Bob's post reminded me. In the "conforming amendments" section at the end of the new law is hidden an important modification to the definition of "small business debtor" in section 101(51D), which will now require that "not less than 50 percent of [the debt] arose from the commercial or business activities of the debtor." So no using the SBRA provisions to deal more flexibly with an individual debtor's $500,000 in unsecured debt or a $1.5 million mortgage or HELOC if it's not related to business activity.

    Second, this last point is the really intriguing aspect of SBRA for me. For the first time in recent memory, we see a crack in the wall that has insulated home mortgages from modification in bankruptcy. Sections 1322(b)(2) and 1123(b)(5) still prohibit the modification of claims secured by the debtor's principal residence, but the SBRA at last provides an exception to this latter provision: An SBRA plan may modify the debtor's home mortgage (including bifurcation into secured and unsecured portions?!) if "the new value received in connection with the granting of the security interest" was not used to acquire the home, but was "used primarily in connection with the small business of the debtor." A small crack it may be, but this sleeper provision strikes me as an important opening for serious discussion of modification of other non-acquisition home mortgage modifications in Chapter 13, for example. This would be a game changer after the HEL and HELOC craze of the earlier 2000s. It will doubtless provide further evidence that the HELOC market will not evaporate or even change appreciably as small business debtors begin to modify their home-secured business loans. Of course, that depends on a robust uptake of the new procedure. We shall see in 2020.

  • Amicus Brief on Valid-When-Made

    Posted by

    Adam Levitin

    I have filed an amicus brief regarding "valid-when-made" in Rent-Rite Super Kegs West, Ltd. v. World Business Lenders, LLC. The brief shows pretty conclusively that there was no such doctrine discernible in the law when either the National Bank Act of 1864 or the Depository Institutions Deregulation and Monetary Control Act of 1980 were enacted, and that subsequent cases consistent with the doctrine are based on a misreading of older law. 

  • FDIC and OCC Race to Court to Defend 120.86% Interest Rate Small Business Loan

    Posted by

    Adam Levitin

    FDIC and OCC filed an amicus brief in the district court in an obscure small business bankruptcy case to which a bank was not even a party in order to defend the validity of a 120.86% loan that was made by a tiny community bank in Wisconsin (with its own history of consumer protection compliance issues) and then transferred to a predatory small business lending outfit. Stay classy federal bank regulators. 

    [Update: based on additional information–not in the record unfortunately–this is clearly a rent-a-bank case, with the loan purchaser having been involved in the loan from the get-go.]

    FDIC and OCC filed the amicus to defend the valid-when-made doctrine that the bankruptcy court invoked in its opinion. FDIC and OCC claim it is "well-settled" law, but if so, what the heck are they doing filing an amicus in the district court in this case? They doth protest too much.

    What really seems to be going on is that FDIC/OCC would like to get a circuit split with the Second Circuit's opinion in Madden v. Midland Funding in order to get the Supreme Court to grant certiorari on the valid-when-made question in order to reverse Madden. The lesson that should be learned here is that while Congress seriously chastised OCC for its aggressive preemption campaign by amending the preemption standards in the 2010 Dodd-Frank Act, that hasn't been enough, and going forward additional legislative changes to the National Bank Act are necessary. Indeed, the FDIC and OCC action underscores why FDIC and OCC cannot be trusted with a consumer protection mission, even for small banks (currently they enforce consumer protection laws for banks with less than $10 billion in assets). The FDIC and OCC are simply too conflicted with their interest in protecting bank solvency and profitability, even if it comes at the expense of consumer protection. Moving rulemaking and large bank enforcement to CFPB was an important improvement, but what we are seeing here is evidence that it simply wasn't enough. 

    More on the background to the story from Ballard Spahr. Needless to say, I completely disagree with the historical claim by FDIC/OCC (and echoed by Ballard Spahr) about "valid-when-made". Valid-when-made-up is more like it.  

  • How Many New Small Business Chapter 11s?

    Posted by

    Bob Lawless

    The Small Business Reorganization Act of 2019 adds a new subchapter V to chapter 11 for small businesses. The new subchapter gives small businesses the option of choosing a more streamlined — and hence cheaper and quicker — procedure than they would find in a regular chapter 11. Perhaps most significantly, the absolute priority rule, which requires creditors to be paid in full before owners retain their interests, does not apply. For those interested in more detail, the Bradley law firm has a good blog post summarizing the key points of the new law, which takes effect in February 2020 (and if I have the math correct — February 19 to be exact).

    A point of discussion has been how many cases will qualify to be a small-business chapter 11. Using the Federal Judicial Center's Integrated Bankruptcy Petition Database, my calculation is that around 42% of cases filed since October 1, 2007, would have qualified. The rest of this post will explain how I came to that estimate as well as discuss year-to-year variations and chapter 11 filings by individuals.

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  • Lowdermilk on Family Farmers in Financial Trouble – new paper!

    Posted by

    Melissa Jacoby

    Jamey Mavis Lowdermilk has just posted an article of interest to Credit Slips readers — lawyers, judges, journalists, policymakers, and more. The article uses a case study of a chapter 12 family farm bankruptcy in North Carolina to ask bigger questions about farming finances and how public policy on farming is set. Extending the early work of now-Representative Katie Porter, Lowdermilk brings her own perspective and expertise to this topic. Before law school, Lowdermilk obtained a masters degree in applied economics and statistics with a specific interest in agriculture as well as rural development, and held a variety of positions related to farms, forestry, and credit. During law school, she started this chapter 12 project in my advanced bankruptcy seminar. After law school, Lowdermilk continued to work on the project and revise the paper for publication as a law review article. Several wonderful bankruptcy judges graciously offered feedback as her first footnote documents. Please check it out!

  • Seeking nominations for the Grant Gilmore Award

    Posted by

    Melissa Jacoby

    GilmoreThe American College of Commercial Finance Lawyers seeks nominations for scholarly articles to be considered for the Grant Gilmore Award. It is not awarded every year, but when it is, the main criteria is "superior writing in the field of commercial finance law."  I am chairing the award committee this year, so please email me or message me on Twitter before December 14 to ensure your suggestion is considered. Especially eager to get suggestions of articles written by newer members of the academy that might otherwise be missed.

  • World Bank Group’s Proposals on Small Business Insolvency

    Posted by

    Jason Kilborn

    At long last, the World Bank Group's insolvency and debt resolution team has finally released to the public its report on the treatment of the insolvency of micro-, small-, and medium-sized enterprises, Saving Entrepreneurs, Saving Enterprises : Proposals on the Treatment of MSME Insolvency. The team worked for over a year on this report, concluding with a meeting of its Insolvency & Creditor/Debtor Regimes Task Force in May in Washington, D.C., where the report and its proposals were vetted. There was a surprising degree of consensus on the proposals developed here, and the final version reflects a fairly widely shared viewpoint on three key points.

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  • Available at finer booksellers everywhere (and Amazon too!)

    Posted by

    Stephen Lubben

    CoverMy new book is out – the Law of Failure.

    The sub-title is "A Tour Through the Wilds of American Business Insolvency Law," which pretty much tells the whole story. I try to cover all business insolvency law – not just the Bankruptcy Code. State laws, and federal laws like Dodd-Frank's OLA are covered too. All in a concise little volume.

    In my research I discovered that many states have specialized receivership and other insolvency laws for specific types of businesses. And some states – I'm looking at you New Hampshire – still have corporate "bankruptcy" statutes on the books from the days when there was no federal bankruptcy law, or (as was the case with the early Bankruptcy Act) the law did not extend to all types of businesses. Can any of these laws really work? It is hard to say, since the Supreme Court has not dealt with a bankruptcy preemption issue in a very long time.

    I welcome discussion on this question, or the book in general, from Slips readers, either below or via email.