President Trump signed the Consolidated Appropriations Act, 2021 yesterday, December 27, 2020. Although not widely reported, the legislation makes several amendments to the Bankruptcy Code based upon the severe financial hardships created by the COVID-19 pandemic.
The amendments relate to Section 365(d)(3) (the deferral of rent by small business debtors), Section 365(d)(4) (the period of time to assume, assume and assign, or reject a nonresidential real property lease), and Section 547 (preferential transfers). All of the amendments will sunset on December 27, 2022.
Preferential Transfer Protection
Perhaps most significantly, landlords which entered into lease amendments with tenants on or after March 13, 2020, to defer the payment of rent as a result of the pandemic are protected from claims of preferential transfers. Normally, payments made by a debtor within 90 days of a bankruptcy filing and outside the ordinary course of business are potentially preferential and subject to a clawback by the debtor. The amendments to Section 547 create a temporary exemption from preference liability to facilitate and encourage rent deferral and vendor repayment agreements. Prior to the amendment, the deferred rent payments could be subject to preference liability as payments that would otherwise be past due. By insulating these payments from preference exposure, landlords (and vendors) are encouraged to reach deferred payment arrangements with struggling businesses without fear that in a later bankruptcy case the deferred payments would have to be disgorged back to the debtor. Put another way, the amendment helps avoid invocation of the age-old adage that no good deed goes unpunished.
Rent Deferrals for Small Business Debtors
The amendment to Section 365(d)(3) provides a small business debtor under the Small Business Reorganization Act provisions of the Bankruptcy Code (i.e., commercial debtors having non-contingent, liquidated debts under $7.5 million) the opportunity to defer rent coming due in the first 120 days of the bankruptcy case. However, causation and materiality elements must be satisfiedthe debtor must demonstrate that it is experiencing, or has experienced, material financial hardship due, directly or indirectly, to the COVID-19 pandemic.
More Time to Assume or Reject Leases
The amendment to Section 365(d)(4) allows additional time for a Chapter 11 debtor to assume, assume and assign, or reject its nonresidential real property leases. Prior to the amendment, a debtor had an initial 120-day period, plus one additional 90-day extension to assume or reject, for a maximum of 210 days. Additional extensions beyond the 210th day of the case require the landlords prior written consent. The amendment increases the initial period from 120 days to 210 days, but maintains the single 90-day extension provision and the landlord written consent requirement. As a result, a debtor is given more breathing room to make critical reorganization decisions relating to its real estate, but must nonetheless timely perform all of its obligations under the lease during that time. To the extent the debtor does not perform, landlords retain the ability to either compel the debtors performance in bankruptcy court or seek relief from the automatic stay to exercise state law remedies.
Read our comprehensive alert about the new stimulus legislation here.
Here is the original post:
New Stimulus Deal: Amendments to the Bankruptcy Code - JD Supra
- Alitalia Files for Bankruptcy, but Italy Balks at a Third Bailout - New York Times [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- A Slow Bankruptcy Process Stops Locale-Reviving Jobs - Wall Street Journal (subscription) [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Bankruptcy auction for property of NASCAR artist Sam Bass ... - Charlotte Observer [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Obamacare helped make a 50% dent in personal bankruptcies ... - MarketWatch [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Pennsylvania Toy Seller Files For Bankruptcy - Wall Street Journal (subscription) [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Puerto Rico Enters Bankruptcy - Wall Street Journal (subscription) [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Puerto Rico Declares a Form of Bankruptcy - New York Times [Last Updated On: May 3rd, 2017] [Originally Added On: May 3rd, 2017]
- Farmer Mac Early Exclusive: Farm Bankruptcy Rates Low - AgWeb [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- Washington weighs in on Westinghouse bankruptcy | News ... - Aiken Standard [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- 4 Reasons Why Puerto Rico's 'Bankruptcy' Process Matters to US Residents - NBCNews.com [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- Valeant: There Is Significant Bankruptcy Risk Here - Seeking Alpha [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- Westinghouse bankruptcy draws federal scrutiny as VC Summer nuclear project's future remains unclear - Charleston Post Courier [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- Bebe Avoids Bankruptcy Filing With Real-Estate Deals - Wall Street Journal (subscription) [Last Updated On: June 6th, 2017] [Originally Added On: June 6th, 2017]
- rue21 Bankruptcy Objections Filed - Bankrupt Company News (press release) (blog) [Last Updated On: June 7th, 2017] [Originally Added On: June 7th, 2017]
- ISH to emerge from bankruptcy as Seacor subsidiary - WorkBoat (blog) [Last Updated On: June 7th, 2017] [Originally Added On: June 7th, 2017]
- Curtains for the Pearl, as the Theater Company Files for Bankruptcy - New York Times [Last Updated On: June 7th, 2017] [Originally Added On: June 7th, 2017]
- Bankruptcy fraud earns Pepperell man 18 months | Boston Herald - Boston Herald [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- Vikki Lindemuth favors appointment of trustee to handle husband's bankruptcy - Topeka Capital Journal [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- Creditors seek to force bankruptcy of Tinley Park firm - Chicago Tribune [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- Abengoa Bankruptcy Liquidation Plan Confirmed - Bankrupt Company News (press release) (blog) [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- Retailer BCBG Unveils Going-Concern Bankruptcy Sales - Wall Street Journal (subscription) [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- For Hartford, bankruptcy not an easy way out - The CT Mirror [Last Updated On: June 9th, 2017] [Originally Added On: June 9th, 2017]
- Why Students Should Be Able To Declare Bankruptcy On Their Loans - ATTN: [Last Updated On: June 10th, 2017] [Originally Added On: June 10th, 2017]
- Bankruptcy forces curtain to fall on community theater - Chicago Tribune [Last Updated On: June 10th, 2017] [Originally Added On: June 10th, 2017]
- Ex-Pepperell man jailed in bankruptcy case - Lowell Sun [Last Updated On: June 10th, 2017] [Originally Added On: June 10th, 2017]
- Owner of Joe's Crab Shack files for bankruptcy | Jacksonville News ... - Florida Times-Union [Last Updated On: June 11th, 2017] [Originally Added On: June 11th, 2017]
- Why test for bankruptcy law is a larger test for India - The Indian Express [Last Updated On: June 11th, 2017] [Originally Added On: June 11th, 2017]
- Tax trouble firms' most likely road to bankruptcy - Albuquerque Journal [Last Updated On: June 12th, 2017] [Originally Added On: June 12th, 2017]
- Darius Miles' Bankruptcy Sale Includes Signed LeBron James, Larry ... - Bleacher Report [Last Updated On: June 12th, 2017] [Originally Added On: June 12th, 2017]
- Winter Haven attorney gets prison for concealing assets in ... - News Chief [Last Updated On: June 12th, 2017] [Originally Added On: June 12th, 2017]
- Children's retailer Gymboree files bankruptcy, closing up to 450 stores - USA TODAY [Last Updated On: June 12th, 2017] [Originally Added On: June 12th, 2017]
- Another retailer has filed for bankruptcy - mySanAntonio.com [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Esperanza Unida bankruptcy delays city redevelopment efforts - BizTimes.com (Milwaukee) [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Square 1 Burgers files bankruptcy, blames over-saturated restaurant market - Orlando Sentinel [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Big KC manufacturer files for bankruptcy - Kansas City Business Journal [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Canadians Have Been Refinancing To Delay Bankruptcy - Seeking Alpha [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Gymboree Files For Bankruptcy, Plans To Close At Least 375 Stores - Forbes [Last Updated On: June 13th, 2017] [Originally Added On: June 13th, 2017]
- Sears, J. Crew, Claire's Are Bankruptcy Risks (SHLD) | Investopedia - Investopedia [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- Tampa's Square 1 Burgers files for bankruptcy protection - Tampabay.com [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- RBI, Banks And NPAs - First, Reform India's Bankruptcy Code, Then Force Defaulters Into It - Forbes [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- Retail bloodbath: Bankruptcy filings pile up - CNNMoney [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- Bankruptcy cases show we've become a nation of selective justice - New York Daily News [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- Soupman of 'Seinfeld' Soup Nazi fame files for bankruptcy protection - USA TODAY [Last Updated On: June 14th, 2017] [Originally Added On: June 14th, 2017]
- Strack & Van Til bankruptcy case moved to Illinois - nwitimes.com [Last Updated On: June 16th, 2017] [Originally Added On: June 16th, 2017]
- Lawsuit: Wells Fargo revised mortgages in bankruptcy without permission - USA TODAY [Last Updated On: June 16th, 2017] [Originally Added On: June 16th, 2017]
- France's CGG files for bankruptcy protection - MarketWatch [Last Updated On: June 16th, 2017] [Originally Added On: June 16th, 2017]
- 'Soup Nazi' company files for bankruptcy - CNNMoney [Last Updated On: June 16th, 2017] [Originally Added On: June 16th, 2017]
- France's CGG Group Files for Bankruptcy Protection - Wall Street Journal (subscription) [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Company of businessman behind polo facility expansion files for bankruptcy protection - Fauquier Times [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Vehicles involved in Dusty Old Cars bankruptcy to be auctioned - WMUR Manchester [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Could Illinois be the first state to file for bankruptcy? - CBS News [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Takata Said to Ready Bankruptcy Filing Ahead of Sale to Rival - New York Times [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Greece escapes brush with bankruptcy but austerity still bites - FRANCE 24 [Last Updated On: June 17th, 2017] [Originally Added On: June 17th, 2017]
- Pawnbroker A-OK cites embezzlement in multimillion-dollar bankruptcy - Wichita Eagle [Last Updated On: June 18th, 2017] [Originally Added On: June 18th, 2017]
- Clock is Ticking on India's Bad Bank Debts Under Bankruptcy Laws - Bloomberg [Last Updated On: June 18th, 2017] [Originally Added On: June 18th, 2017]
- Surveyor dealing with fine, bankruptcy - Muncie Star Press [Last Updated On: June 18th, 2017] [Originally Added On: June 18th, 2017]
- Mode Media Assets Acquired by Wedding Ad Network BrideClick in Bankruptcy Deal - Variety [Last Updated On: June 18th, 2017] [Originally Added On: June 18th, 2017]
- San Bernardino officially out of bankruptcy - San Bernardino County Sun [Last Updated On: June 20th, 2017] [Originally Added On: June 20th, 2017]
- 22 retailers that are at serious risk of bankruptcy - Chron.com [Last Updated On: June 20th, 2017] [Originally Added On: June 20th, 2017]
- What to expect in defective air bag maker Takata's looming bankruptcy - USA TODAY [Last Updated On: June 20th, 2017] [Originally Added On: June 20th, 2017]
- Could Illinois file for bankruptcy? - FOX Illinois [Last Updated On: June 20th, 2017] [Originally Added On: June 20th, 2017]
- Exploding airbags: Takata shares plummet 17% on bankruptcy reports - CNNMoney [Last Updated On: June 20th, 2017] [Originally Added On: June 20th, 2017]
- These 14 Stores May Be on the Brink of Bankruptcy | NBC Southern ... - NBC Southern California [Last Updated On: June 21st, 2017] [Originally Added On: June 21st, 2017]
- Medical bankruptcies - WEAR [Last Updated On: June 21st, 2017] [Originally Added On: June 21st, 2017]
- After five long years, San Bernardino is officially out of bankruptcy. What's next? - Los Angeles Times [Last Updated On: June 21st, 2017] [Originally Added On: June 21st, 2017]
- Takata to file for bankruptcy Monday, SMFG to provide bridge loan: sources - Reuters [Last Updated On: June 22nd, 2017] [Originally Added On: June 22nd, 2017]
- Sears Canada files for bankruptcy - CNNMoney [Last Updated On: June 22nd, 2017] [Originally Added On: June 22nd, 2017]
- Foundation Healthcare Chapter 11 Bankruptcy - Bankrupt Company News (press release) (blog) [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Implant Sciences Bankruptcy Objections Filed - Bankrupt Company News (press release) (blog) [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Puerto Rico Bankruptcy: Uncertainty, But Also Stock Profit Opportunity - Seeking Alpha [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Lakeland day care files for bankruptcy without paying workers - wreg.com [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Sears Canada Closing 59 Stores as It Seeks Bankruptcy Protection - Fortune [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Takata to file for bankruptcy Monday, SMBC to provide bridge loan: Sources - CNBC [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- How Sears Canada's Bankruptcy Impacts Sears Holdings Corp. - Seeking Alpha [Last Updated On: June 23rd, 2017] [Originally Added On: June 23rd, 2017]
- Augusta native sworn in as newest Bankruptcy Court judge - The Augusta Chronicle [Last Updated On: June 24th, 2017] [Originally Added On: June 24th, 2017]
- Takata reportedly planning to file for bankruptcy - CNBC [Last Updated On: June 24th, 2017] [Originally Added On: June 24th, 2017]
- Bankruptcy - money_selfhelp [Last Updated On: June 24th, 2017] [Originally Added On: June 24th, 2017]
- Japan press - Takata expected to file for bankruptcy protection in Tokyo - ForexLive [Last Updated On: June 26th, 2017] [Originally Added On: June 26th, 2017]
- Bankruptcy guru Edward Altman sees similarities to 2007 in the credit market today - Yahoo Finance [Last Updated On: June 26th, 2017] [Originally Added On: June 26th, 2017]
- Takata's woes expected to continue beyond bankruptcy filing amid mounting recall costs - CNBC [Last Updated On: June 26th, 2017] [Originally Added On: June 26th, 2017]