Tag: proposal

#VIDEO-HISTORY OF BANKRUPTCY NEVER GETS ANCIENT#

Post author By Brandon Smith
Post date September 21, 2016

HISTORY OF BANKRUPTCY NEVER GETS ANCIENT

History of bankruptcy: Introduction

A subject that rarely gets written about is the history of bankruptcy. Understanding the history of the Canadian bankruptcy system and how it has evolved, gives a helpful look into how it works and help Canadians and Canadian society.

History of bankruptcy: Helping the debtor

The Bankruptcy and Insolvency Act (BIA) provides a way for the orderly liquidation of a bankrupt’s assets and distribute that value to the creditors. In this way, the BIA assists the insolvent debtor who needs a way to be forgiven for his or her financial sins, relieved of their burden and be returned to society as a productive contributor. The BIA assists creditors in providing the system of turning the assets into cash to be distributed to them, and not keeping those assets either out of their reach or just laying in an unproductive state. The BIA also is a system of checks and balances, so that it provides both Canadians and foreigners that there is a vibrant and safe Canadian economy.

History of bankruptcy: Helping the creditors

The BIA also ensures that there is a fair and logical system in place to deal with the assets of the debtor and the claims of creditors. By invoking it, it avoids a race among creditors to attempt to get the right to seize assets in an uncontrolled way. Creditors are paid according to their place in the hierarchy of claims as described in the BIA as follows:

Trust claimants who are outside of the bankruptcy scheme
Secured creditors, who are also outside the bankruptcy scheme as long as they hold good and valid security
Unsecured creditors:
- Preferred
- Ordinary

History of Bankruptcy: bankruptcy alternatives

The BIA also provides debtors to opt for avoiding bankruptcy by making a Proposal. In the case of corporations, a Proposal; for people, either a Proposal or Consumer Proposal, depending on the level of their debt. Proposals are the bankruptcy alternative that allows companies or people to financially rehabilitate themselves and avoid bankruptcy, while offering the creditors more than they would receive in a bankruptcy. In this way, the BIA is both a liquidation and a rehabilitation statute, benefiting both debtors and creditors.

History of bankruptcy: The BIA

The present bankruptcy statute came into force on July 1, 1950. The title of the statute was amended from the Bankruptcy Act to the Bankruptcy and Insolvency Act in 1992, to show the statute had matured into a full financial rehabilitation statute, that could be used to carry out a bankruptcy alternative. Further amendments were made in 1997 to deal with a number of practical issues that became problematic for Canadian society applying the BIA, including:

Claims for student loans
Priority status for claims for spousal and child support
Payment from a bankrupt’s earnings
Environmental claims
Liability protection for Directors
Securities firm insolvency
International insolvency

In 2005 there were another round of comprehensive amendments to the BIA mainly dealing with the new legislation of the Wage Earner Protection Program Act (WEPPA), designed to protect employees for their unpaid amounts when their employer goes either bankrupt or into receivership.

History of bankruptcy: Rehabilitation

It is a fundamental purpose of the BIA to offer the financial rehabilitation of insolvent persons. The BIA permits an honest but unfortunate debtor, be it a corporation or an individual, to secure financial restructuring through the Proposal provisions, or a discharge from bankruptcy for people. It allows for a fresh start for the debtor to resume his or her place in the business community and society.

The BIA attempts to offer balance by allowing an investigation to be made of the affairs of the debtor and setting aside fraudulent transactions so that ordinary unsecured creditors can share in a distribution, rather than someone else being the beneficiary of those questionable transactions. Finally, the BIA allows for creditors to purse actions against the bankrupt either through the Licensed Insolvency Administrator or directly by a creditor or group of creditors.

History of bankruptcy: The Courts

The general approach to the BIA by the courts is that it is a commercial statute. To administer the process it is left largely in the hands of business people. Technical and legal objections and manoeuvres are not given weight beyond those that are necessary for the proper implementation and interpretation of the BIA. Settlement and resolution are rewarded, litigation and court proceedings are not.

History of bankruptcy: What to do if you have too much debt

I hope this history of bankruptcy provides you with a good look into how the bankruptcy system developed in Canada and how it works. If you’re suffering from too much debt and are seeking debt relief options, contact Ira Smith Trustee & Receiver Inc. Our approach for every file is to create an outcome where Starting Over, Starting Now becomes a reality, beginning the moment you walk in the door. You’re only one call away from taking the steps towards a debt free life.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags assets, avoiding bankruptcy, Bankruptcy, bankruptcy alternatives, Bankruptcy and Insolvency Act, BIA, Consumer Proposal, creditors, Debt, debt relief, debtor, history of bankruptcy, insolvent, Ira Smith Trustee, licensed insolvency administrator, liquidation, proposal, trustee, WEPPA

Brandon Blog Post

COMPANY WENT BANKRUPT AND DIDN’T PAY ME WAGES: IT DOESN’T HAVE TO BE HARD

Post author By Brandon Smith
Post date August 31, 2016

Previous blogs for the company went bankrupt

The issue of the company went bankrupt and didn’t pay me wages is not a new one. We previously wrote two blogs on this topic:

We have noticed a surge of renewed interest in this topic based on recent activity from readers of our Brandon’s Blog, so, we thought it would be a good idea to put together a short video on this topic.

People ask us what if the company didn’t pay me wages?

We answer if wages are owed by your employer because the employer went bankrupt with unpaid employees or is in receivership don’t despair; there is hope for you to recuperate monies owed to you. The Wage Earner Protection Program (“WEPP”) Act – WEPPA – in conjunction with an amendment to the Bankruptcy and Insolvency Act (Canada) – BIA – created a mechanism for employees to be compensated for claims of unpaid wages, commissions and vacation pay accrued in the six months preceding the employer files for bankruptcy or being placed in receivership and wages are owed to you along with claims for unpaid termination and/or severance pay.

Are there any exceptions? What are the rules?

There are a few exceptions to the company went bankrupt and didn’t pay me wages. You are generally not eligible if, during the period for which your wages are owed to you by your employer, you:

were an officer or a director of your former employer
had a controlling interest in the business of your former employer
were a manager whose responsibilities included making binding financial decisions impacting the business of your former employer, and/or making binding decisions on the payment or non-payment of wages by your former employer

Who is eligible for the WEPP? You may apply if wages are owed to you by your employer and:

your former employer has filed for bankruptcy or is subject to a receivership
wages are owed to you by your employer, vacation pay, termination or severance pay from your former employer
amounts earned during the eligibility period or, in the case of termination or severance pay, your employment was terminated during the eligibility period ending on the date of bankruptcy or receivership

One more very important exception – it only applies if wages are owed to you by your employer and your employer is in either receivership or bankruptcy and owes you wages. If your employer is attempting a corporate restructuring under a Notice of Intention to Make a Proposal, a Division I Proposal or the Companies’ Creditors Arrangement Act, then WEPPA and its provisions do not come into play.

Claim limits when the company went bankrupt and didn’t pay me wages

Regardless of the total amount owing to you, the maximum any employee can receive under WEPPA is the greater of $3,200 or four times the maximum weekly insurable earnings under the Employment Insurance Act (which is now around $3,900).

Once employees file claims with both the Trustee/Receiver and Service Canada, Service Canada pays their claims for owed wages by the employer and Service Canada becomes the creditor. The amendment to the BIA has recognized WEPPA and created a priority charge that supersedes all secured charges except CRA’s deemed trust claim (and the reclaiming rights of farmers and suppliers) to a max of $2,000 per employee, secured against current assets.

Documentation needed if the company went bankrupt and didn’t pay me wages

While no one wants – or expects – to be part of a receivership or bankruptcy, you should always keep detailed records of hours worked for any pay period. On any occasion when you discover there will be no paycheque, record the loss that you will suffer, such as not being able to pay bills or buy groceries. Ask for a formal explanation from your employer and keep detailed notes on your efforts. It’s important to prove that when owed wages by an employer; you still expect to be paid, even if it’s late.

If your employer is in receivership or bankruptcy proceedings, and you believe you have a claim for owed wages by the employer, find the trustee and get in touch with Service Canada. Have your records ready and make sure you get your Proof of Claim.

What should I do if I have too much debt and the company went bankrupt and didn’t pay me wages?

This is an important issue. If you are experiencing financial problems, contact Ira Smith Trustee & Receiver Inc. We’re here to find what your bankruptcy options are, put your financial house back in order and set you on a path to debt free-living. You’ll be amazed at the difference one phone call to Ira Smith Trustee & Receiver Inc. can make.

Contact us today. We are a licensed trustee and will listen to your issues and offer compassionate, professional assistance to aid you to avoid bankruptcy, so that you can regain control of your life, Starting Over, Starting Now.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags Bankruptcy, Bankruptcy and Insolvency Act, CCAA, company went bankrupt and didn’t pay me wages, Ira Smith Trustee, proposal, receivership, restructuring, salary, starting over starting now, Wage Earner Protection Program, Wage Earner Protection Program Act, wages, WEPP, WEPPA

Brandon Blog Post

#VIDEO-HIDING ASSETS IN BANKRUPTCY: HIDE AND SEEK WITH SERIOUS CONSEQUENCES#

Post author By Brandon Smith
Post date July 20, 2016

Hiding assets in bankruptcy is a huge mistake

When you are contemplating filing for bankruptcy, don’t believe that hiding assets in bankruptcy proceedings will work for you. A licensed insolvency trustee is very good at finding undisclosed property. And if you intentionally try to hide assets, you could face severe consequences.

Some people filing for bankruptcy think that if they don’t list property in their sworn statement of affairs, they can dupe the licensed insolvency trustee and keep the property. This is a huge mistake and illegal.

The first assessment

A licensed insolvency trustee does a full assessment of the person considering filing for bankruptcy, to decide if they can avoid bankruptcy. The Trustee will get a written statement from the debtor of his or her assets and liabilities.

In addition to requesting the person to list all of his or her assets, there will also be certain questions, such as:

Have you sold, disposed of, or transferred any assets in the past twelve months?
Have you sold or transferred any property in the past five years while you knew yourself to be insolvent, either in Canada or Elsewhere?
Have you made any gifts to a relative or other person that was of a value in excess of $500.00 in the past five years?
Have you received any lump sum payments or settlements in the last 12 months?

The purpose of these intake questions is so that the Trustee can get a full picture of the person’s situation, to give the best advice possible about using bankruptcy proceedings, or some other options that are available to the person as an alternative to and a way to avoid bankruptcy.

The Trustee’s analysis, which includes comparing the answers to these questions to, the person’s current budget of income and how they spend their money, their expenses, and the assets listed by them, may very well highlight inconsistencies, which will lead to more questions, and probably uncover the assets that the person is attempting to hide.

As part of the Trustee’s analysis, the Trustee will also want to look at some recent bank statements as well as your filed income tax return and notice of assessment for the previous year. There may very well be things jumping out of this review that will highlight inconsistencies, if someone is trying for hiding assets in bankruptcy.

Finally, the person’s creditors have a lot of information about the debtor’s financial affairs. Once the person files for bankruptcy, his or her creditors get notice of the bankruptcy and look at the disclosure on the sworn statement of affairs. If they are aware of an asset that has not been disclosed, I can guarantee you that they will call the Trustee to ask what about that other asset – and then tell the Trustee when they say, what are you talking about?

In a proposal filing we recently did, the person, in making an honest mistake, forgot to tell us of a piece of real estate they own with a sibling, bought for their mother to live in. The mother pays the running costs of the property. With all the stress the person was under, they sincerely forgot to tell us.

Once we mailed our notice to creditors, two days later a creditor emailed us asking what about the real estate, and supplied us with a title search to prove that the real estate is apparently half owned by our client! We then had to rework the proposal to account for this extra value.

So what if I just don’t list the asset(s) – will this work for hiding assets in bankruptcy?

If you think that hiding assets in bankruptcy is a good way to hang on to your property; think again. This is not a minor matter. In fact it’s a violation of the Bankruptcy and Insolvency Act (BIA) and the Criminal Code and it’s punishable by hefty fines and/or prison time.

Committing fraud against the government is never a good idea and the likelihood is that you will get caught. When the Trustee has reason to believe that an offence exists, we report it to the Office of the Superintendent of Bankruptcy Canada (OSB). The Superintendent sends the file to one of its special investigation units.

The investigation units work closely with the Royal Canadian Mounted Police (RCMP). The OSB encourages people to report fraudulent activities that relate to a bankruptcy file and they even have a toll-free number to call 1-877-376-9902. The OSB will encourage the RCMP to press criminal charges.

In addition to fines and/or prison time, if you are trying for hiding assets in bankruptcy:

You will not get a discharge of your debts
The Trustee can revoke your discharge and those debts cannot be discharged in future bankruptcies

Still think that hiding assets in bankruptcy is a good idea?

Honesty is always the best policy. If you make an honest mistake, just let your Trustee know, so they can figure out the best way to handle it.

If you are thinking of declaring bankruptcy, contact Ira Smith Trustee & Receiver as soon as possible. We will guide you through the process and Starting Over, Starting Now get you well on your way to living a debt free life.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags avoid bankruptcy, Bankruptcy, declaring bankruptcy, hiding assets in bankruptcy, Ira Smith Trustee, licensed insolvency trustee, Office of the Superintendent of Bankruptcy Canada, proposal, RCMP

Brandon Blog Post

#VIDEO-ALTERNATIVES TO BANKRUPTCY: DO NOT BE EMBARRASSED TO HAVE THE “B” CHAT#

Post author By Brandon Smith
Post date May 11, 2016

Introduction of the alternatives to bankruptcy

There are alternatives to bankruptcy. Say the word bankruptcy and people immediately recoil. I don’t know if there is more stigma attached to another word in the English language. In reality bankruptcy is not something to be ashamed of. It should not be avoided at all costs and it’s not a deep dark hole; it can be the light at the end of the tunnel. As with other alternatives to bankruptcy, it is an option. Let’s explore why avoiding bankruptcy can do more harm than good.

Many реорlе аѕѕumе thеrе’ѕ only оnе tуре of bankruptcy. The one that еlіmіnаtеѕ all уоur debts. Thаt’ѕ a BIG rеаѕоn реорlе ѕау things like, “I wоuld never dесlаrе bаnkruрtсу! It just dоеѕn’t seem to be the responsible thing to do. Right?”

What mоѕt реорlе don’t know іѕ that there are TWO tуреѕ of BIA proceedings for іndіvіduаlѕ. One is bankruptcy and the other is an alternative to bankruptcy. The alternative is a (consumer) proposal. The reason you would pick the alternative is to AVOID bankruptcy.

Two tуреѕ of BIA proceedings

Thеѕе two types of BIA proceedings are іntеndеd to асhіеvе very dіffеrеnt goals. Bеfоrе taking асtіоn it is іmроrtаnt to undеrѕtаnd what уоu want to achieve. What you are trying to achieve will determine whісh tуре of BIA proceeding іѕ right fоr you.

Here is a quick ѕummаrу of еасh type of BIA proceeding. We also show how еасh one саn help уоu асhіеvе specific gоаlѕ in your fіnаnсіаl life.

What is bankruptcy?

Bankruptcy is most of the time misunderstood. According to the Office of the Superintendent of Bankruptcy Canada:

“Bankruptcy is a legal process designed to relieve honest but unfortunate debtors of their debts. At the end of the process, the bankrupt is released from the obligation to repay the debts they had when the bankruptcy was filed (with some exceptions)”.

Bankruptcy used to be the mоѕt common type of BIA proceeding fоr consumers. Its lіquіdаtіоn and discharge fеаturеs are dеѕіgnеd to end debts and give уоu a frеѕh ѕtаrt. In the United States it is referred to as “Chapter 7 proceedings”.

(Consumer) Proposal: One of the best alternatives to bankruptcy

The proposal provisions used by companies is “restructuring” or “reorganization”. Individuals with large debts can also use the restructuring provisions. Yet, there was no similar provisions available to small individual debtors in the BIA.

Parliament wished to find a way to provide for people with smaller debts to be able to restructure. A Parliamentary committee consulted with the stakeholders in the Canadian insolvency world. As a result, the consumer proposal legislation came into force in the 1990’s. Now, the consumer proposal provisions are used more than the consumer bankruptcy provisions. Canadians are now able to AVOID bankruptcy while still obtaining the help and counseling of a LIT.

The main use of the (consumer) proposal provisions of the BIA is to:

allow you as a debtor to keep your assets, if you can afford to in your budget;
AVOID bankruptcy, and provide a better alternative to your creditors than a bankruptcy would. You can relieve yourself of your debts, for an amount less than the total face value of all your debts;
If the рауmеnt plan іѕ ѕtruсturеd well, make affordable monthly payments; and
allow for the affordable monthly payments to cut ALL debts.

To meet all your debts in full but уоu can’t afford to ассоmрlіѕh that gоаl, this mау be just the ѕесrеt уоu need to know! In the United States it is called “Chapter 13 proceedings”.

Why avoiding bankruptcy can do more harm than good

There are alternatives to bankruptcy which merit review. But bankruptcy can often be a good thing. A recent report by the Federal Reserve Bank of New York states:

People who filed bankruptcy had access to more new lines of credit. Those who limped along in a poor financial state did not;
this puts to rest the misconception that filing bankruptcy closes the door to new credit;
those who didn’t file bankruptcy are just insolvent;
individuals who go bankrupt get a sharp boost in their credit score after bankruptcy;
the recovery in credit score is much lower for individuals who do not go bankrupt; and
insolvent individuals who do not go bankrupt exhibit more financial stress.

Where to go for information on alternatives to bankruptcy

Are you insolvent and looking for solutions? The Ira Smith Team is here to offer alternatives to bankruptcy and bankruptcy. We offer the help in Vaughan and throughout the GTA.

Our motto is Starting Over, Starting Now! Ira Smith Trustee & Receiver Inc. can help you overcome your financial difficulties. Contact us today.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags alternatives to bankruptcy, avoid bankruptcy, avoiding bankruptcy, Bankruptcy, BIA, Chapter 13, Chapter 7, Consumer Proposal, credit score, Ira Smith Trustee, licensed insolvency trustee, Lines of Credit, LIT, proposal, Superintendent of Bankruptcy

Brandon Blog Post

STALKING HORSE BID: DO YOU REALLY WANT 2 STALK YOUR ADORABLE HORSE?

Post author By Brandon Smith
Post date July 21, 2015

stalking horse bid

This blog was originally published on July 21, 2015. It was updated on March 22, 2021.

Bankruptcy Sales: What Is a Stalking-Horse Bid?

A stalking horse bid, in the Canadian insolvency context, is an attempt by a company (and/or its Monitor, Receiver or Trustee ) in a Court supervised insolvency proceeding, to set what will be the baseline that must be met and beaten by any other bids for the assets. The intent is to maximize the value of its assets as part of a Court supervised sales process and to discourage any bid below a certain value.

A stalking horse is a process that allows a potential buyer (the stalking horse bidder) to make a public bid for a company’s assets in order to set a floor price for the amount of money to be received by the company’s creditors in a (bankruptcy) sale. The stalking horse bidder will get to purchase the company’s assets if no other bidder comes forward. The stalking horse provision allows for the bidding process terms and conditions to be set in a court-supervised sale.

In this Brandon Blog, I describe the stalking horse bid process and how it works

What’s a stalking horse bid? Example of a stalking horse bid

According to Wikipedia:

“The term stalking horse originally derived from the practice of hunting, particularly of wildfowl. Hunters noticed that many birds would flee immediately on the approach of humans, but would tolerate the close presence of animals such as horses and cattle. Hunters would therefore slowly approach their quarry by walking alongside their horses, keeping their upper bodies out of sight until the flock was within firing range. Animals trained for this purpose were called stalking horses.”

In an insolvency context, a stalking horse bid stands to test the market to see how the market values the assets for sale. If the market values the assets less than the amount of the stalking horse bid, then no one will bid higher and the party who made the stalking horse bid will be successful in acquiring the assets.

If the market values the assets more than the amount of the stalking horse bid, the higher offers will be made for the assets and for the Court to consider for approval. Presumably, a higher offer will be approved, the purchaser will purchase the assets and the stalking horse bid will not prevail.

How a Stalking-Horse Bid Works

The stalking-horse bid method allows a distressed company to avoid receiving low ball bids as its assets are being sold. Once the stalking-horse bidder has made its offer and it has been negotiated and court-approved, other potential buyers may submit competing bids for the company’s assets.

By setting the low end of the bidding range, the insolvent company hopes to realize a higher price on its assets. Insolvency proceedings are public. The public nature allows for the disclosure of more information about the deal and the buyer than what would be available in a private deal.

Stalking-horse bidders can generally negotiate which particular assets and liabilities it hopes to acquire. After the stalking horse bid is negotiated resulting in an asset purchase agreement, it will be necessary for the company, Receiver or Trustee to obtain Court approval of not only the stalking horse bid but also for the entire sales process to be implemented.

If the company is attempting to restructure and requires “bankruptcy protection”, then those corporate proceedings would be either under the Companies’ Creditors Arrangement Act (“CCAA”) or the Proposal provisions of the Bankruptcy and Insolvency Act (Canada) (the “BIA”). In that situation, it is the company making an application to the Court with the support and assistance of the monitor or proposal trustee.

If it is a corporate receivership or bankruptcy proceeding, then it is either the receiver or bankruptcy trustee making the application. In the case of bankrupt corporations, then it is the bankruptcy court that needs to approve the stalking horse bid, the entire sales process and approve the sale.

What does it take to get bankruptcy court approval?

When applying to the Court, approval for an entire sales process is being sought, a component of which is the stalking horse agreement. The Court has various considerations in determining if a stalking horse sale process should be approved. They are:

Is a sale transaction warranted at this time?
Will the sale benefit the whole “economic community”?
Do any of the debtors’ creditors have a bona fide reason to object to a sale process of the business?
Is there a better viable alternative?”

In the event the stalking horse bid is not the successful winner because of the other potential bidders at least one made a better offer, it is normal for the stalking horse purchaser to receive some form of compensation. The compensation is for the time, cost and resources invested to perform its due diligence, to make its offer which was found to be reasonable in the circumstances and to expose that offer to the marketplace to stand as a stalking horse bid, and for that bidder to not end up as the successful purchaser.

Our Firm has been involved in situations where the stalking horse bid has been both the successful bid unsuccessful bid. If the compensation, commonly known as break-up fees, is fair and reasonable, it will not dissuade other purchasers from coming forward in the sales process, and it will also be fair to the stalking horse bidder if they are unsuccessful. It is fair to the stalking horse bidder to have these bid protections incorporated into their offer.

The Court in considering the approval of a stalking horse bid also considers if the breakup fee, and the entire stalking horse bid, has been negotiated between arms’-length parties and has the support of the stakeholders involved in the insolvency proceeding.

The Pros and Cons of Being A Stalking Horse Bidder for Assets In Bankruptcy

There are various pros and cons to being a stalking horse bidder and making the stalking horse bid. First the advantages:

First to tie up the company’s management, perform due diligence thereby dealing exclusively with the company for the proposed purchase of its assets.
Gaining the advantage of time and access to the company’s financial information.
Having the time to be able to understand the company’s problems and challenges.
Getting under contract for the assets the purchaser wants to acquire.

The cons of making the stalking horse bid are:

Making sure that you set the break fee high enough to fully compensate the stalking horse bidder.
Not having too long a time period between approval of the stalking horse bid and the time when other bids must be submitted to avoid the assets or the company’s operations worsening through the process.
Would it have been better not to have been the stalking horse bidder and see how the company and its assets fare before having to submit a bid?
If the stalking horse bidder is not a secured lender, is there a likelihood the secured lenders will bid their security which will outbid yours?
If there is more than one acceptable bid, then an auction process is required to determine the successful bidder. The stalking horse bidder may not wish to participate in such an auction and will end up losing out.

Can a secured creditor credit bid? Cirque du Soleil agrees to ‘stalking horse’ takeover bid from lenders worth $375M

One of the most recent high-profile successful stalking horse bids was the Cirque du Soleil insolvency proceeding under the CCAA. In that case, a takeover proposal from the Cirque du Soleil’s secured creditors has been approved as the benchmark bid for a court-supervised auction of the insolvent entertainment company.

That is called a credit bid. When the secured creditor bids all or a portion of its outstanding loan. This will be done in situations where the secured creditor believes that the value of the assets to be sold is less than the amount owed, yet the company’s assets can be used to run a viable business. In that situation, the secured creditor would rather bid its security with the company debt to take over the assets.

By making a credit bid, the secured creditor potential purchaser does not need to come up with cash for the purchase price. However, cash will be required to make certain payments to parties the company business cannot operate without and to have working capital going forward.

If they bid the full amount of their loan and get outbid in other purchase agreements, it means they get fully paid out. Otherwise, they get the assets to run the company, bring it back to financial good health and profitability. Eventually, then they will sell the healthy company to recoup their money plus make a profit.

Stalking horse bid summary

If your company is experiencing financial difficulties, don’t waste your time stalking horses or any other animal. Seek the advice of your professional advisers. The earlier you seek financial help the more options will be open to you. Contact Ira Smith Trustee & Receiver Inc. today. We’ll review your corporate issues and come up with a sound plan so that Starting Over, Starting Now you can enjoy financial peace of mind.

stalking horse bid

Tags Bankruptcy, Bankruptcy and Insolvency Act, BIA, CCAA, Cirque du Soleil, Companies’ Creditors Arrangement Act, corporate insolvency, court, insolvency, monitor, Park Lane Circle, proposal, receiver, restructuring, stalking horse, stalking horse bid, stalking horse bidder, starting over starting now, trustee

Brandon Blog Post

RESTRUCTURING AND TURNAROUND IS NOT ROCKET SCIENCE! HERE’S WHY

Post author By Brandon Smith
Post date June 16, 2015

A restructuring and turnaround process that does not garner the support of the creditors can lead to bankruptcy. Bankruptcy ends up being a result of an attempt to save the business that has gone awry.

There are two statutes which set out the law of bankruptcy and insolvency law in Canada, including the Canadian regimes for a corporate restructuring and turnaround:

Bankruptcy and Insolvency Act (“BIA”): Contains 275 sections and is intended to be a complete code for bankruptcies. The law dealing with bankruptcies is within the BIA itself
Companies’ Creditors Arrangement Act (“CCAA”): Deals with corporate restructuring and turnaround (as does the BIA) and contains 22 sections. Most of the law dealing with the CCAA has developed from Court decisions as the statute is very thin!

Once in motion it’s extremely difficult to set aside an assignment into bankruptcy. That is why the interests of all stakeholders must be carefully considered and addressed in order for a restructuring and turnaround plan to be successful. Take for example the motion which was recently brought before the Ontario Superior Court of Justice (In Bankruptcy and Insolvency) by Casimir Capital Ltd., an intermediary or broker of various underwritings and placements. Up until January 31, 2014 when it resigned, it was a member and registered as a securities dealer with the Investment Industry Regulatory Organization of Canada (“IIROC”).

Casimir Capital Ltd. brought a motion seeking to set aside its deemed assignment into bankruptcy, and a review of a decision of a trustee to allow certain creditors to vote against a proposal put forth by the firm to settle its debts. At that meeting, 93.7% of the creditors voted against the proposal. However, in the motion, Casimir argued that some of the creditors should not have been allowed to vote as it disputes the validity of their claims.

The decision: In Re Casimir Capital, 2015 ONSC 2819 (CanLII), Casimir’s motion was dismissed. In his ruling The Honourable Mr. Justice Pattillo stated that the trustee “…was correct in allowing the Disputed Creditors to vote.” and “…the steps taken by the Proposal Trustee in reviewing and validating the proofs of claims filed, including the Disputed Creditors, for the purpose of voting at the first meeting were more than sufficient.”

The court noted that even if the votes of the disputed creditors were disallowed, 69.4% of the other creditors, whose claims are not disputed, voted against the proposal. The Court also agreed with the trustee that the debtor’s motion to have its deemed assignment in bankruptcy set aside fails in any event because even if the disputed creditors votes are set aside, the votes of the remaining creditors still defeat the proposal. As you can see, this restructuring and turnaround attempt was doomed for failure, as essentially none of the needs of the stakeholders were successfully addressed. Therefore in this case, a deemed assignment in bankruptcy was the end result. I am sure the professionals involved did the best they could with what they had to work with, but it obviously was not enough.

Unfortunately many companies and individuals find themselves in financial difficulties and surviving these financial difficulties can be a daunting task. Ira Smith Trustee & Receiver Inc. has helped many companies to not only survive, but prosper. Our corporate restructuring and turnaround strategies not only deal with short term crisis management but the long term viability of corporations. Contact us today so that Starting Over, Starting Now once again your company can a financially viable entity.

Tags assignment in bankruptcy, bankruptcies, Bankruptcy, Bankruptcy and Insolvency Act, BIA, Casimir Capital Ltd., CCAA, Companies’ Creditors Arrangement Act, deemed assignment in bankruptcy, insolvency, proposal, restructuring and turnaround, starting over starting now, trustee

Brandon Blog Post

BANKRUPTCY TRUSTEE SAYS A BALANCED BUDGET IS TO FINANCIAL HEALTH WHAT A BALANCED DIET IS TO PHYSICAL HEALTH

Post author By Brandon Smith
Post date January 6, 2015

In our last bankruptcy trustee blog A Balanced Budget Is To Financial Health What A Balanced Diet Is To Physical Health – Part 1, we discussed the importance of a budget to help you establish your spending limits, reduce your spending and if you stick to your budget, live within your means. This week in A Balanced Budget is to Financial Health What a Balanced Diet is to Physical Health – Part 2, we’ll be discussing a case from our files and explaining how important a balanced budget is when working with a bankruptcy trustee.

When we consult with a consumer debtor, one of the most important things for them to have is a balanced budget. In the cases of bankruptcy or proposal, a balanced budget is not optional; it is a requirement that they present us with a balanced budget as it needs to be filed in the public domain as part of their bankruptcy or proposal. In fact I will not sign off on one that doesn’t balance (except in extenuating circumstances). There are several reasons that a bankruptcy trustee says a balanced budget is a requirement for bankruptcy or proposal:

1. An insolvency filing cuts off access to credit for the debtor so they have to live within their means.
2. It is a requirement of the Act to show rehabilitation.
3. Living off credit is a likely contributor to the financial difficulty in the first place. While a proposal or bankruptcy will settle the present debts, if the lifestyle changes aren’t made the greater problem, chronic debt, won’t be solved. A bankruptcy trustee has the duty to ensure that rehabilitation has taken place.

From the files of Ira Smith Trustee & Receiver Inc.: Brian and Julie are married with no children. They can no longer afford their present lifestyle based on their income. Brian works limited part-time hours (and clings to the belief that he needs to be home at all times to work on call so he can work his way up in the ranks). Julie lost her full-time job and is having trouble finding one with equivalent hours/pay. This has been going on for over 2 months now and they have not readjusted their budget to account for the change in income. Although they do not live an extravagant lifestyle, they have become reliant on credit to maintain their lifestyle. Now they are caught in a viscous cycle; they are taking on new debt at a time they are seeking relief from the old debt they can’t pay. The reality is that until they balance a budget, even on a temporary basis, as a bankruptcy trustee, we can’t help with the old debt as they cannot live on their combined family income without incurring more debt. Therefore, they are stuck in limbo.

There are many ways to get into debt, but getting out of debt is not a do-it-yourself project. If you’re experiencing serious debt issues you need professional help from a bankruptcy trustee as soon as possible. Contact Ira Smith Trustee & Receiver Inc. today. Starting Over, Starting Now we can put you back on track to financial health.

Tags balanced budget, Bankruptcy, bankruptcy trustee, budget, credit card debt, Debt, financial health, insolvency, proposal, starting over starting now, trustee

Brandon Blog Post

CRA: TAX RETURN FILED BUT NO MONEY TO PAY?

Post author By Brandon Smith
Post date June 22, 2014

Will CRA be looking for you? June 17^TH was the deadline for self-employed individuals in Canada to file their 2013 income tax and benefit return. You filed your return on time to avoid a late-filing penalty on amounts owing, and gasped when you saw how much money you owe the CRA. How are you going to pay your tax bill? The CRA is not known as a charitable organization and they have the power to withhold HST/GST and child tax credits, seize money in your bank account and garnish your wages. To add insult to injury the CRA can also continue to charge penalties and interest on the money you owe until your debt is paid in full. You need a plan and you need one now.

I’m sure you’ve been bombarded by the scare tactic radio ads that are flooding the air waves by a prominent tax lawyer. He’d like you to believe that he and only he can deal with the CRA and solve your tax problem; but, that simply isn’t true. Trustees are experts in solving debt issues and what you need is a professional, licensed trustee. Your trustee will present you with bankruptcy alternatives, one of which is a consumer proposal.

What is a proposal? In a proposal your trustee will work with you to determine how much you can afford to pay each month. Your trustee will then negotiate with your creditors, including the CRA, for you to pay a portion of your unsecured debt over a maximum of 5 years at a monthly rate that is affordable to you. Over 66 2/3% of your creditors ($ value, in addition to a majority in number) have to agree to accept the proposal. If your total debt, including income tax debt, is less than $250,000, then you can consider a streamlined proposal process, which is called a consumer proposal.

Will the CRA agree to a consumer proposal? Recent statistics from the CRA estimate there is currently about $8 billion in unpaid taxes in Canada. The reason that consumer proposals are almost always accepted is that they produce a better rate of recovery on your debts than if you’d filed for bankruptcy. For your consumer proposal the CRA will require that:

all outstanding tax returns are filed with CRA before they will accept the proposal
you have sufficient income to meet the payments in the proposal
you agree to make installments on your current year taxes, so that you don’t fall behind again on your taxes

Are you a good candidate for a consumer proposal? If you’re a business owner with a good cash flow and after coming up with all the deductions possible to give to your accountant you still had a large profit leading to the surprise income tax debt, you’re are a good candidate for a consumer proposal. We can also let you know why negotiating a reduction in your debt through a consumer proposal is better than a bankruptcy.

Don’t let tax debt paralyze you! Contact Ira Smith Trustee & Receiver Inc. today. We’ll create a solid financial plan for you so that you can be Starting Over, Starting Now.

Tags Bankruptcy, bankruptcy alternatives, Canada Revenue Agency, Consumer Proposal, CRA, CRA bankruptcy, income tax, income tax debt, proposal, tax debt, tax lawyer, Tax lawyer Canada, taxes in Canada, trustee, trustees

Brandon Blog Post

CONSUMER PROPOSALS: WHAT YOU NEED TO KNOW

Post author By Brandon Smith
Post date April 3, 2014

Before contemplating a bankruptcy, those who have too much debt should give strong consideration to consumer proposals, one of the alternatives to bankruptcy. As long as you owe less than $250,000, this is possible. This limitation excludes any mortgage you have for your home.

The advantage of consumer proposals

Consumer proposals gives individuals a chance to reorganize their finances and get back on their feet without having to go through a bankruptcy. By avoiding bankruptcy, a person’s credit rating is not seriously damaged. In addition, after all of the debts are dealt with, through consumer proposals, people have a strong feeling of accomplishment and self-worth.

Consulting with a bankruptcy trustee to find out more about consumer proposals

The first step in pursuing a consumer proposal is to meet with a bankruptcy trustee to evaluate your financial circumstances. The trustee will help draft a proposal for your creditors based upon your finances. If the proposal is accepted, you will then make your payments directly to the trustee. The exact form a proposal will take is dependent upon many variables.

In some circumstances, you may be paying only a partial amount of the debt you owe over time. In other circumstances, the debt will not be reduced, but reorganized in a way that gives you a chance to pay it all back. In consumer proposals, no further interest or fees can be charged. Sometimes it is just a longer period of time to pay back the debt. Either way, consumer proposals should be thought of as providing you with the equivalent of an interest-free loan. Whatever the final proposal is, it will help bring needed relief to your financial situation.

After filing a consumer proposal

From the time your consumer proposal is filed, you will no longer be making any payments directly to your creditors provided that the debt is unsecured. Any wage garnishment that is in place is suspended while the proposal is examined by your creditors. Lawsuits over debt recovery are also placed on hold. The proposal and the accompanying trustee’s report will provide details on your personal finances and will include an explanation of how your debts became such a problem that it has led to a need to reorganize the debt structure. Your creditors will have up to 45 days to decide to accept the offer or not. If one or more of your creditors is owed more than a fourth of the total debt, they have the right to request a meeting with you and the trustee. This request for a meeting must be done in the same 45 day time limit.

If you are in a situation where you are overwhelmed by debt with no hope of paying it back under the current circumstances, there is not much of a downside to pursuing a consumer proposal. The worst thing that can happen is that creditors do not agree to the proposal, and in this situation, bankruptcy is still an option. If it does work then you save yourself the grief of having a bankruptcy on your credit history.

If you wish to compare this information about consumer proposlas to a bankruptcy, start by reviewing our bankruptcy faqs. Contact Ira Smith Trustee & Receiver Inc. as soon as possible regarding your debt problems, to find out more about consumer proposals and Starting Over, Starting Now you’ll be on your way to living a debt free life.

Tags alternatives to bankruptcy, avoiding bankruptcy, Bankruptcy, bankruptcy faqs, bankruptcy trustee, Consumer Proposal, consumer proposals, credit history, credit rating, Debt, debt recovery, debts, interest-free loan, overwhelmed by debt, proposal, starting over starting now, too much debt, trustee, wage garnishment

Brandon Blog Post

COMMERCIAL PROPOSAL – CORPORATE RESTRUCTURING PART 3

Post author By Brandon Smith
Post date May 22, 2013

In last week’s blog we discussed the stakeholders and key players and their roles in a corporate restructuring. This week we’ll be addressing the Division 1 Proposal, commonly referred to as a Commercial Proposal or the Proposal.

What is a Division 1 Proposal? The Division 1 Proposal is a legal document typically drawn up by either the Trustee or the company’s lawyer. It is essentially a compromise between a commercial debtor and his/her creditors that, if approved by the creditors and the Court, becomes legally binding. Proposals help resolve the financial difficulties of a business and offer creditors more than they could expect to receive in a bankruptcy. The agreed upon Proposal is a part of the overall restructuring plan, which is a business plan.

When is a Commercial Proposal, otherwise known as a Division 1 Proposal used? A Division 1 Proposal can be used if a business is viable but financially unsound. The general principal we use in determining if a business is a good candidate for a Proposal is that they have to have a core business that is viable and once they shed themselves of most of their debt and develop a business plan and model that will be profitable they can use a Proposal as a tool to continue operations and settle their unsecured debt for less than the full amount of the unsecured debt.

What are the advantages of a Division 1 Proposal? After a debtor files a Division 1 Proposal or a notice of intention to file a Proposal, creditors may not begin or continue any legal action. The debtor remains in possession and control of their assets and company management continues to make all business decisions. Restoring the financial condition of a business with a Proposal may save the business, preserve jobs, give creditors the best return, provide a continuing source of business for existing and new creditors, and enable the owners and/or shareholders to retain an interest in the business.

If your company is experiencing severe financial difficulties, avoid a Company bankruptcy. Contact Ira Smith Trustee & Receiver Inc. to discuss whether a Division 1 Proposal is the right strategy for you. Starting Over, Starting Now we can help to restructure and turnaround your company, restoring it to financial health.

Tags bankrupt, Bankruptcy, commercial proposal, Company bankruptcy, corporate restructuring, division 1 proposal, liquidator, proposal, restructure, toronto, trustee, Vaughan