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In a recent blog post we discussed EIDL LOAN WORKOUTS AND BANKRUPTCY http://shenwick.blogspot.com/2022/07/eidl-loan-workouts-and-bankruptcy.html In this post we will discuss EIDL Loans and the SBA Offer in Compromise program (“OIC”).  An offer in compromise is an offer by the borrower to pay less than the amount that is owed on the SBA loan, in consideration for the SBA considering the loan satisfied. The “compromise amount” must bear a reasonable relationship to the amount that could be recovered through “enforced collection proceedings”. Enforced collection proceedings are litigation or the lien and levying on collateralized assets by the SBA including bank account levies, wage garnishments, and liens on houses pledged as collateral.Generally in an OIC, the business has closed and all business assets have been sold or abandoned. In rare cases, an OIC can  be filed while the business is open and operating.The compromise amount should be paid in one lump-sum payment on a specified date, usually within 60 calendar days of the approval date. Rarely the OIC can be paid in installments.Similar to an OIC for a tax obligation, the SBA Offer-In-Compromise is required when a borrower or guarantor is seeking to have their obligation released for less than the balance due after the business has closed.What are the Requirements for an Offer in Compromise?(1) The loan must be classified in liquidation status by the Lender or SBA;(2) The borrower has not filed for bankruptcy;(3) The full amount owed on the loan cannot be paid or recovered (4) Collection of the loan is not barred by a discharge in bankruptcy or the statute of limitations;(5) The borrower has not engaged in fraud, misrepresentation, or other financial misconduct; and(6) The compromise amount bears a reasonable relationship to the amount that could be recovered in a reasonable amount of time through enforced collection proceedings. After defaulting on the EIDL loan, when the loan is classified in liquidation status by the Lender or the SBA, the borrower will receive a  60 day demand notice from the SBA.It is during this 60 day demand notice that a borrower typically files the OIC.If a borrower takes no action the SBA can commence litigation, seize IRS tax refunds, take Social Security benefits or an individual's wages can be garnished. The OIC package is sent to the lender who will review it and  forward it to the SBA for further review and action.What Documentation Must the Borrower Submit with the OIC?(1) SBA Form 1150 (Offer in Compromise).(2) SBA Form 770 (Financial Statement of Debtor) showing the borrower’s assets, liabilities, income, and expenses. (3) Statement of Personal History(4) Borrower Consent to Verify Information(5) IRS Form 4506-T (Request for Transcript of Tax Return);(6) The borrower’s federal tax returns for the past two years(7) If the loan involved personally guarantees, then 2 years of federal tax returns for the guarantor(8) If a house was collateral for the loan, then a recent appraisal of the house and a mortgage statement showing the mortgage balance on the house, if applicable.(9) A statement or explanation from the borrower stating why the loan cannot be repaid in full.
Timing:The OIC process takes six months to one year.Will the SBA accept a payment plan for an OIC?The SBA prefers a lump sum payment, but they will also consider monthly payments from an individual. Note however, that the SBA will not issue a release, terminate a guaranty or release a lien on a house until all payments under the OIC are made. If your house is collateral for the loan, then the OIC offer must equal the equity in the house, which is determined by the fair market value of the house (based on a recent appraisal) less outstanding mortgages, less brokerage fees (if the house were sold), less your States homestead exemption and state and local transfer taxes.Bankruptcy filing vs OICClients will often ask us is it better to do an OIC or a bankruptcy filing? There is no correct answer and at Shenwick & Associates we do that analysis for clients.At Shenwick & Associates we have done hundreds of workouts for clients and many bankruptcy filings for individuals and businesses.   Clients having questions about the OIC process or bankruptcy should consult with Jim Shenwick, Esq.   [email protected]  212 541 6224  

 EIDL LOAN WORKOUTS AND BANKRUPTCY Recently we have received many telephone calls and emails from clients regarding their default under EIDL Loans and EIDL Grants, from the SBA or related banks and their options with respect to those defaults.In the way of background, EIDL (Economic Injury Disaster Loans) and EIDL Grants were provided to small businesses to help them recover from the COVID-19 pandemic. EIDL loans were supposed to  used for working capital and operating expenses.     EIDL loans are not forgivable and must be repaid.EIDL Grants do not need to be repaid.The maximum for EIDL Loans was $2 million. The interest rate on those loans was not to exceed 4%.The term was up to 30 years, with no prepayment penalty or feesIn SBA nomenclature, if a borrower does not make payment on an EIDL Loan, the loan can be Delinquent or go into Default. SBA regulations provide that  “Delinquent” means you’re behind on your SBA loan repayments, but your lender still believes you will be able to repay some, or all, of the loan amountIf a lender determines that you  will be unable to repay your loan, then you will be classified as a “Default”.Delinquent on EIDL Loan:In the typical EIDL loan, the lender will assess a late fee for failure to pay, contact you for repayment, restructure the loan, extend your loan over a longer length of time (to reduce monthly repayments), allow you to repay only the interest portion of your loan, or some blend of the above (typical loan workout strategies).Lender’s will push for a payment  within 30 days of contacting you.Default On EIDL LoansIf you repeatedly fail to make repayments and cannot reach an agreeable plan with your bank or the SBA, then your loan will go into default. Consequences of Default:

1. Any collateral (property) you pledged for the loan is at risk. Depending on applicable state law the lender has the  right to take the property and sell those assets to repay the loan.
2. Any parties or entities that guaranteed the loan can be required or sued to repay the loan balance.
3. The SBA will send you a demand letter, demanding that the loan be repaid. 
4. The SBA can sue you or the guarantor of the EIDL Loans. 
5. Your business and personal credit reports will show the default and your credit score will decline.
6. The SBA can lien and levy on federally held assets such as tax refunds
7. The loan default will be reported to the IRS and you may have to recognize income equal to the amount of the loan default, which is not repaid to the lender.

REMEDIES FOR AN EIDL LOAN DEFAULT:1. Offer to pay some money towards settling the loan.2. You can fill out an “Offer in Compromise” form and send it to an SBA Loan Officer,  which provides financial  information and the  amount that you can pay as a final and full payment to satisfy the loan.3. Prepare for litigation.4. Consider a bankruptcy filing  
GUARANTIES AND COLLATERAL FOR EIDL LOANS

1. EIDL loans of $25,000 or less do not require collateral or personal guarantees.
2. EIDL loans between $25,000 and $200,000, require collateral (UCC-1 and a Security Agreement)  but generally do not require personal guarantees. In case of a default with respect to loans of this size, collateral such as accounts receivable, inventory or equipment could be seized and sold to satisfy the debt.
3. EIDL loans greater than $200,000 require collateral and personal guarantees.

EIDL and BankruptcyBankruptcy is a last resort for an individual or a business. However, an individual with an EIDL loan or a company that guaranted an EIDL loan can file for  chapter 7, 13 or 11 bankruptcy. Chapter 7 is a liquidation (the business closes), chapter 13 is a 3 to 5 year payment plan for individuals (not businesses) and chapter 11 is a reorganization or a liquidation for an individual or a business. 
A business that has an EIDL loan can file for  chapter 7 or 11 bankruptcy or chapter 11, Subchapter V bankruptcy (a form of chapter 11 bankruptcy for small businesses). EIDL loans can be discharged in a chapter 7 bankruptcy filing.   Assets that were collateralized for an EIDL loan, such as equipment or accounts receivable would become the property of the Lender. Parties who guaranteed EIDL loans can be sued by the EIDL lender and they would need to do a workout (an out of court workout) or a bankruptcy filing.  
Clients or professionals with questions about EIDL loan workouts or bankruptcy filing  should contact Jim Shenwick, Esq   [email protected]  212 541 6224 
 

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What You May Not Know About These ServicesServices like “buy now pay later” now account for $100 million in annual transactions and are a popular financial resource for millions of Americans. These methods make purchasing simpler, but there are hazards involved as well.
Consumers enjoy the convenience of “buy now pay later,” but they are unaware of how it affects their wallets.
“People love the convenience, but there is still a lot of misunderstanding regarding BNPL services and their influence on people’s financial lives.”, says Amy Maliga, a financial educator with Take Charge America. It’s simple to overlook the future threats because there is such confusion. Because of this, it’s essential to look more closely at any new services or products, especially those that make it simpler for you to spend your hard-earned money.  Prior to utilizing BNPL services, Maliga advises you keep the following in mind:
Don’t be misled, these “loans” function as credit
BNPL payments are a form of credit, despite the fact that BNPL providers may advertise themselves as a more convenient way to pay for regular purchases without using credit or debt. Additionally, some services impose late fees or interest if you miss a payment. Use caution when utilizing these services as it is simple to slip into debt.
Most likely, you’ll spend more.
Retailers aggressively market BNPL since customers tend to spend more money when using these services. Two-thirds of buyers who used BNPL plans spent more than they otherwise would have, according to a LendingTree poll. Be sure to examine your finances and bank account before making that expensive purchase. Make sure you can actually afford it. Otherwise, you run the danger of racking up debt you cannot pay for.
Inconsistent impact on credit scores.
You don’t benefit from the advantages of responsible repayment because the majority of BNPL suppliers don’t report on-time payment information to the major credit agencies. Negative incidents, such as late payments or collection activities, are more likely to be recorded. Due of this, it is even more important that you make all of your BNPL payments on time and without missing any.
No consumer safeguards.
These services are not covered by the Truth in Lending Act because of BNPL’s typical four-installment payment schedules. This mean that with BNPL providers, consumers are not protected from any potential predatory or misleading lending practices. What is the difference?  Federal law requires five installments before any regulations are imposed.
Source: inbusinessPHX.com (intended for educational purposes only)

Feeling buried with debt? Check out National Foundation of Consumer Credit Counselors, but beware of the scams offering “debt relief” services.
From their website: “Beyond our credentials and our decades of service as a nonprofit financial counseling organization, what we offer is hope. The kind of hope that allows you to envision a bright financial future that is achievable and sustainable.
Our grounded expertise, inclusive solutions, and commitment to the common good are what turn that hope into a plan that fulfills your dreams. Years of independent, academic research have proven our efforts effective. Ultimately, we believe in better futures for all, and we are committed to seeing that through.”

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Diane L. Drain
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The post The Secret Costs of Using Buy Now Pay Later Services appeared first on Law Office of D.L. Drain, P.A., Arizona Bankruptcy Lawyer.

" I needed to file bankruptcy which was a very difficult and stressful decision. I never wanted to get to the point of having to file chapter 7, but I knew in order to have a fresh start it was the only way out. I spoke with several attorneys, most said I could only file chapter 13. I was single, no kids, and employed; my career and lifestyle were getting better but the debt was still substantial and I couldn't save any money. I felt overwhelmed thinking I had to figure out how to pay off the debt. James was the only attorney that firmly said you need to file for chapter 7. He didn't promise it would happen, in fact he was honest saying I had a 60/40 chance but he believed I had a good chance. I'm so glad I followed my instincts and went with him. He was aggressive and direct and got the job done. He prepared me for the court day and it went in my favor. I'm not gonna lie, I'm not proud of the situation, but I'm happy to be debt free with a new promising start. Thanks James!