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Misuse or Misapply SBA EIDL Loan Proceeds and Chapter 7 Bankruptcy FilingsAs many readers of our emails and blogs know, we have developed a practice representing individuals and businesses that have defaulted on SBA loans. We either want to do a workout with the SBA or file for bankruptcy.The first question we are asked is whether SBA loans are dischargeable in a Chapter 7 bankruptcy filing. The answer to that question is yes. The SBA (depending on the amount of the loan) is either an unsecured or a secured creditor, and those loans are dischargeable in a chapter 7 bankruptcy filing.The second question we asked is: if the business files for chapter 7 bankruptcy, is the business owner who guaranteed the loan (if the SBA loan was greater than $200,000.00, a guarantee is required) still liable to pay for the defaulted loan? The answer is yes.The third question is, What happens if the business that received the SBA EIDL loan misuses or misapplies the SBA loan proceeds?The SBA EIDL loan requires borrowers to use the funds only for eligible expenses like payroll, fixed debts, accounts payable, and other regular business expenses (working capital).Using funds for unauthorized purposes violates loan terms.If the SBA determines a borrower misused the funds or did not use them as required, it can demand repayment of the loan. It can also commence litigation against the borrower to collect the monies. The SBA can foreclose against business assets if they are secured or sue the guarantor. The SBA can obtain a judgment, garnish wages, place liens on property, and liquidate assets to recover the unpaid loan balance. The SBA can also refer the defaulted loan to the Treasury Department for further collection efforts.The fourth question we are asked is: if the business that received the SBA EIDL loan misused or misapplied the SBA loan proceeds, can that entity file for chapter 7 bankruptcy to discharge the loan?For example, what if the borrower did not use the money for working capital or operating expenses but instead used the money for personal expenses such as the purchase of real estate, an automobile, or a stock or bond investment?The misuse or misapplication of the SBA EIDL loan proceeds may prevent the borrower from receiving a discharge in bankruptcy for the reasons provided below.First, the dischargeability of SBA EIDL loans in Chapter 7 Bankruptcy is governed by bankruptcy law under 11 U.S.C. § 523(a)(2)(B).Section 523(a)(2)(B) pertains to the non-dischargeability of debts arising from "false pretenses, false representation, or actual fraud, other than a statement respecting the debtor's financial condition. If the SBA determines that the borrower engaged in fraud, the SBA could commence an adversary proceeding objecting to the business’s bankruptcy discharge (an adversary proceeding is litigation commenced by a party after a bankruptcy filing).COMMENTS:
- Adversary proceedings in Bankruptcy are expensive and time-consuming, and creditors do not frequently commence litigation in bankruptcy cases, in this author’s experience.
- Will the chapter 7 Bankruptcy Trustee inquire about the misuse or misapplication of funds and notify the SBA? Generally, that is not the concern of a Bankruptcy trustee.
- The larger the loan amount, the more likely the SBA will object to the discharge.
- If there is a guarantee, the SBA will be less likely to commence litigation.
- The SBA employees are busy, and they may just write off the loan and move on to the next case.
- We were unable to find any Bankruptcy cases involving the misuse or misapplying of SBA EIDL loan proceeds or adversary proceedings by the SBA (although those cases may exist).
- If the SBA commences litigation, they need to prove fraud (which is difficult), and there may be opportunities to settle the case.
- Finally, the Debtor needs to do a cost-benefit analysis regarding the cost of the chapter 7 bankruptcy filing and the risk of an adversary proceeding being commenced by the SBA.
Businesses or creditors with questions about the misuse or misapplying of SBA EIDL loans should contact Jim Shenwick, Esq., at 917-363-3391 [email protected]
-----------------------Other Posts by James Shenwick, Esq. regarding SBA EIDL LoansSBA EIDL HARDSHIP PROGRAMhttps://shenwick.blogspot.com/2023/07/sba-eidl-hardship-program.htmlDefaulted SBA EIDL Loans, Limited Liability Company (LLC) and Cancellation of Debt Income (COD) under Section 108 of the Internal Revenue Codehttps://shenwick.blogspot.com/2023/07/defaulted-sba-eidl-loans-limited.htmlOffers In Compromise ("OIC") for Defaulted SBA EIDL loans and Section 108 of the Internal Revenue Code ("IRC"), Relief of Indebted Income, a Trap for the Unwary!https://shenwick.blogspot.com/2023/05/offers-in-compromise-oic-for-defau...EIDL LOAN WORKOUTS AND BANKRUPTCY https://shenwick.blogspot.com/2022/07/eidl-loan-workouts-and-bankruptcy....EIDL Loan Default Questions & Answers https://shenwick.blogspot.com/2022/10/eidl-loan-default-questions-answer...
EIDL LOAN DEFAULT DOCUMENT REVIEW, WORKOUT, BANKRUPTCY FILING & OFFER IN COMPROMISEhttps://shenwick.blogspot.com/2022/07/eidl-loan-default-document-review....EIDL Defaulted Loanshttps://shenwick.blogspot.com/2022/07/eidl-defaulted-loans.htmlNew Relief Program for SBA EIDL Borrowers Who are Having Difficulty Repaying EIDL Loans " Hardship Accommodation Plan"https://shenwick.blogspot.com/2023/05/new-relief-program-for-sba-eidl.htmlEIDL LOANS and SBA OFFER IN COMPROMISE PROGRAMhttps://shenwick.blogspot.com/2022/07/eidl-loans-and-sba-offer-in-compro...PPP & EIDL Fraudhttps://shenwick.blogspot.com/2022/08/ppp-eidl-fraud.htmlBetter to connect-What small business owners need to know about repaying loans tied to pandemic relief from the SBA EIDL Loanshttps://shenwick.blogspot.com/2022/11/better-to-connect-what-small-busin...
Epiq is reporting that July Commercial Chapter 11 Filings Increase 71 Percent Over Last Year
The article can be found at https://finance.yahoo.com/news/epiq-july-commercial-chapter-11-172700880...
Jim Shenwick, Esq 917 363 3391 [email protected]
Please click the link to schedule a telephone call with me.
https://calendly.com/james-shenwick/15min
We held individuals & businesses with too much debt!
KCRA has New Biden plan cuts student loan payments for millions to $0. Will it be the next legal battle?https://www.kcra.com/article/biden-new-student-loan-payment-plan-explain...
Jim Shenwick, Esq 917 363 3391 [email protected]
Please click the link to schedule a telephone call with me.
https://calendly.com/james-shenwick/15min
We held individuals & businesses with too much debt!
Teamsters says U.S. trucking firm Yellow shuts operations, to file for Bankruptcy. The article can be found at https://www.cnbc.com/2023/07/31/teamsters-says-us-trucking-firm-yellow-s...
Jim Shenwick, Esq 917 363 3391 [email protected] Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
'I feel abandoned' — businesses warn of bankruptcy as deadline to pay back COVID loans looms
Nearly 250,000 small businesses who received CEBA loans are in danger of shutting down, says CFIB
The article can be found at:
https://financialpost.com/news/economy/businesses-fear-bankruptcy-ceba-deadline-looms
Jim Shenwick, Esq 917 363 3391 [email protected]
Please click the link to schedule a telephone call with me.
https://calendly.com/james-shenwick/15min
We held individuals & businesses with too much debt!
Considering filing bankruptcy? Know the different types of Bankruptcy
Unexpected events may have hindered loan or credit card payments. If you want to eliminate debt and start over financially, consider bankruptcy. What are the types of bankruptcy? Can I file bankruptcy? When considering ways to avoid losing your hard-earned possessions to creditors, several questions may come to mind.
Sometimes bankruptcy seems like the only option. Even though you may feel imprisoned and terrified, bankruptcy is a serious decision. Understand bankruptcy and its several types to make the best decision for your situation.
If you’re in over your head in debt, let Northwest Debt Relief Law Firm help. We are a different kind of Law Firm where our clients get the complete legal services they deserve. Since we believe everyone deserves a fresh start, we will do our utmost to help you restore financial control. Our Portland, OR, bankruptcy lawyers always strive for the best results. Schedule a free debt consultation now!
What is Bankruptcy?
Bankruptcy helps people and corporations get out of debt. Federal courts manage it under the US Bankruptcy Code. Chapter 7 of the Bankruptcy Code serves as a classification for bankruptcy.
Bankruptcy can eliminate or restructure debt. The debtor petitions the bankruptcy court to start a bankruptcy case. Individuals, spouses, corporations, and other entities can petition.
What are the eligibility requirements for filing for Bankruptcy?
To be eligible for bankruptcy, there are certain requirements that must be met, which vary depending on the type of bankruptcy being filed. Here are some of the general eligibility requirements for filing for bankruptcy:
- You must be a natural person, a partnership, or a corporation or other business entity.
- You must have property in the United States or a permanent residence or business here.
- You must not have filed for bankruptcy within a certain period, which varies depending on the type of bankruptcy.
- You must not be attempting to defraud creditors.
- You must complete credit counseling with an approved credit counseling agency, either in an individual or group briefing, within 180 days before filing.
- You must meet certain income guidelines before being able to move forward with the process.
- If you are filing for Chapter 7 bankruptcy, you must pass the “means test” to determine your disposable income. If your income is less than or equal to the median, the law presumes that you are eligible for Chapter 7 bankruptcy. If your income is higher than the median, however, you may still be eligible for Chapter 13 bankruptcy.
- Your unsecured debts (such as credit cards and medical bills) must be less than a certain amount, which varies depending on the type of bankruptcy.
What are the Types of Bankruptcy?
The U.S. Bankruptcy Code governs all bankruptcy matters in federal courts. It categorizes bankruptcy types by chapter.
- Chapter 7: A type of bankruptcy designed for people and corporations with few assets and sources of income. A trustee appointed by the court sells non-exempt assets in this kind of bankruptcy to pay creditors. The filer may be ineligible for Chapter 7 bankruptcy if their income falls above a certain level. The Means Test and Income Limits for Chapter 7 can determine eligibility.
A bankruptcy court can legitimately erase most unsecured debt, including credit card debt, medical expenses, and personal loans, in Chapter 7 bankruptcy. It is the fastest, easiest, and most common type of bankruptcy.
- Chapter 11: Chapter 11 “reorganization” bankruptcy permits firms and individuals to rearrange their debts and assets while continuing operations. Chapter 11 bankruptcy is available to all businesses—corporations, partnerships, and sole proprietorships—and people, but corporations utilize it most often.
- Chapter 13: It is a bankruptcy for people with steady incomes, who have enough extra money to design a repayment plan to pay off their debts. It can be paid partially or fully over a three- to five-year period. While the debtor keeps their assets, they are still required to repay creditors according to the court-approved repayment plan.
This type of bankruptcy is ideal for people who are behind on secured debts but want to retain the collateral. To take advantage of this program, debtors must meet a few qualifications.
- Chapter 12: Chapter 12 covers regular annual income for family farmers and fishermen. This bankruptcy lets them create and implement a repayment plan. In Chapter 12, the debtor suggests a three- to five-year payback schedule.
- Chapter 9: Chapter 9 bankruptcy is a type of bankruptcy that applies specifically to municipalities, such as cities, counties, townships, municipal utilities, taxing districts, and school districts. It provides financially distressed municipalities with protection from creditors by creating a plan between the municipality and its creditors to resolve the outstanding debt.
- Chapter 15: Chapter 15 bankruptcy, established in 2005, allows U.S. courts to cooperate with international courts in foreign bankruptcy procedures involving U.S. financial interests. It addresses cross-border insolvency matters and promotes cooperation between foreign courts, representatives, debtors, and creditors. Chapter 15 bankruptcy is based on the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission on International Trade Law (UNCITRAL).
How do I file for Bankruptcy?
Consult a bankruptcy attorney or credit counseling service before filing for bankruptcy, as it can be complicated. However, the bankruptcy process is as follows:
- Consider all your options: It’s crucial to consider all your options before filing for bankruptcy.
- Choose the type of bankruptcy filing: Choose your bankruptcy chapter. Chapter 7 is for those who wish to erase their debts, whereas Chapter 13 is for those with a regular income who want to repay.
- Complete credit counseling: Credit counseling from an approved provider is usually required before bankruptcy. This course covers budgeting, credit, and bankruptcy alternatives.
- Fill out bankruptcy forms: Bankruptcy courts require petitions, schedules, and statements. These forms disclose your assets, obligations, income, and expenses.
- File bankruptcy forms in court: Your local bankruptcy court must receive the completed forms. Some filing fees may be waived or paid in installments.
- Attend the meeting of creditors: Attend a 341 meeting of creditors after filing. This gathering lets creditors and trustees ask financial inquiries.
- Follow the court’s instructions: You must follow the court’s orders, present needed documents, and work with your trustee during bankruptcy.
Consult our bankruptcy attorneys today!
For more information about the advantages and disadvantages of each bankruptcy chapter and how they may affect your business or your personal estate, you should consult with a lawyer who specializes in this field. A specialist will help you make the best decision based on your requirements.
We at Northwest Debt Relief Law Firm offer a thorough and highly-tailored answer to your debt issues. Our Portland, Oregon, bankruptcy lawyers are committed to giving you the best outcomes possible. We also provide legal assistance in rebuilding your credit score after bankruptcy. Speak with our bankruptcy lawyer in Oregon right away to have peace of mind!
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The New York Post is reporting that IRS will stop showing up at homes unannounced in
effort to protect agents, combat scammers.The article can be found at https://nypost.com/2023/07/24/irs-ending-policy-of-unannounced-home-visits-by-agents?utm_source=gmail&utm_campaign=android_nyp
Jim Shenwick, Esq 917 363 3391 [email protected] Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
Yahoo Finance published an article discussing the potential default of $500 billion in corporate debt. The article indicates that large corporate bankruptcies are accumulating at the second-fastest rate since 2008, surpassed only by the initial phase of the pandemic. The article can be found at https://uk.finance.yahoo.com/news/500-billion-corporate-debt-storm-230005895.html?guccounter=1
Jim Shenwick, Esq 917 363 3391 [email protected] Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
More than 800,000 borrowers are still eligible to benefit from student loan forgiveness according to NPR. The story can be found at https://www.npr.org/2023/07/15/1187929868/more-than-800-000-borrowers-are-still-eligible-to-benefit-from-student-loan-forg
Jim Shenwick, Esq 917 363 3391 [email protected] Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
By Law Offices of David M. Siegel Bankruptcy Attorney Chicago Feeling like you’re sinking in a sea of debt, juggling bills, and losing sleep over your financial situation? It might be time to consider seeking help from a local bankruptcy attorney. Here are five signs that it’s time to take action. Skyrocketing Credit Card Balance+ Click Here For Read More
The post 5 Signs You Need to Find a Local Bankruptcy Attorney appeared first on David M. Siegel.