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BECOMING BANKRUPT IN CANADA: OUR COMPLETE GUIDE FROM FILING TO FINANCIAL RECOVERY

becoming bankrupt
becoming bankrupt

Becoming Bankrupt: Introduction

Are you struggling with overwhelming debt and considering becoming bankrupt? If so, you are not alone. Many people and businesses continue to struggle from the COVID-19 pandemic and are only now hitting the wall.

This Brandon’s Blog is a comprehensive guide exploring the intricacies of bankruptcy in Canada. I provide essential insights into the process, consequences, and alternatives. Understanding bankruptcy is crucial for any insolvent person facing financial hardship.

Becoming Bankrupt: Understanding Bankruptcy

Definition of Bankruptcy

Bankruptcy is a legal process under the Canadian Bankruptcy and Insolvency Act, where an insolvent person or business declares their inability to repay their debts. This declaration provides legal protection from creditors while allowing individuals to work towards a fresh financial start.

Types of Bankruptcy

Bankruptcy can be categorized into different types. The most common categories include:

  • Personal Bankruptcy: This type pertains to individuals who are unable to manage their debts and are overwhelmed by financial obligations.
  • Business Bankruptcy: This category is relevant to businesses that cannot fulfill their financial commitments and seek legal relief from creditors.

    becoming bankrupt
    becoming bankrupt

Becoming Bankrupt: Reasons for Filing for Bankruptcy

Common Causes of Personal Bankruptcy

Individuals and businesses often file for bankruptcy due to a variety of factors, such as:

  • Job loss: Unexpected unemployment can significantly impact an individual’s ability to manage their finances.
  • Medical expenses: High medical bills can lead to substantial debt, especially in countries without universal healthcare.
  • Business failure: Economic downturns or poor management decisions can result in business bankruptcy.
  • Divorce: Legal fees and the division of assets can contribute to financial strain.

Beyond the general reasons mentioned above, common causes of personal bankruptcy can include:

  • Overspending and accumulating high-interest debt: Excessive credit card debt, loans like lines of credit while failing to manage debt can quickly lead to a financial crisis.
  • Unexpected life events: Unforeseen circumstances like illness or accidents can lead to significant financial burdens.
  • Lack of financial literacy: Without a proper understanding of budgeting and debt management, individuals might struggle to stay financially afloat.

Business Bankruptcy Considerations

Business bankruptcy considerations extend beyond personal factors. Some key aspects include:

  • Economic conditions: Recessions and market fluctuations can severely impact business revenue.
  • Competition: The inability to compete effectively in the market can lead to declining sales and profits.
  • Poor financial management: Inadequate accounting practices and financial planning can contribute to business failure.

Becoming Bankrupt: The Bankruptcy Process in Canada

Initial Steps to Take

Facing the possibility of voluntary bankruptcy can be overwhelming. If you are an insolvent person and find yourself in this situation, consider these initial steps:

  • Assess your financial situation: Analyze your income, expenses, assets, and liabilities to understand the extent of your financial difficulties.
  • Seek professional advice: Consult with a Licensed Insolvency Trustee. They can provide guidance on your options and help you understand the bankruptcy process.
  • Explore alternatives to bankruptcy: Depending on your circumstances, options like debt consolidation, consumer proposal, or credit counselling might be viable alternatives.

Role of a Licensed Insolvency Trustee

Licensed Insolvency Trustees play a crucial role in the bankruptcy process. They are licensed professionals regulated by the Office of the Superintendent of Bankruptcy. Their responsibilities include:

  • Providing information and advice: Explaining the bankruptcy process and implications to individuals and businesses.
  • Administering the bankruptcy estate: Collecting assets, resolving disputes, selling assets, reviewing and admitting claims for the unsecured debts and ultimately, distributing available funds to the unsecured creditors of the bankrupt individual or business.
  • Ensuring compliance with bankruptcy laws: Upholding legal requirements and addressing potential misconduct.

Filing the Bankruptcy Application

The bankruptcy process formally begins with the Trustee filing the necessary bankruptcy documents with the Official Receiver, who is the local representative of the Office of the Superintendent of Bankruptcy. The application includes:

  • Assignment in Bankruptcy: This is the document where the insolvent person, business or company declares bankruptcy.
  • Statement of Affairs: This document details the insolvent person’s or business’s financial situation, listing assets, debts, income, and expenses.
  • Statement of monthly income and expenses: Documentation verifying the insolvent person’s current income.
  • Filing fee: A payment is ultimately required, although it is not necessary to be paid to initiate the bankruptcy process.

    becoming bankrupt
    becoming bankrupt

Becoming Bankrupt: Obligations of the Bankrupt Individual

Financial Disclosure Requirements

Transparency is crucial during bankruptcy. Individuals must:

  • Disclose all assets and liabilities: Provide a complete and accurate account of their financial situation.
  • Surrender assets: Non-exempt assets are turned over to the Licensed Insolvency Trustee for sale to distribute the net proceeds to creditors.
  • Report any changes in financial status: Inform the Trustee of any income changes, asset acquisitions, or new debts incurred.

Responsibilities During the Bankruptcy Process

Maintaining compliance with bankruptcy regulations is essential. The bankrupt insolvent person must:

  • Attend the meeting of creditors: The insolvent person must meet with the trustee and creditors as required.
  • Cooperate with the trustee: Provide necessary information and follow the Trustee’s instructions throughout the process.
  • Not incur new debt without disclosing that they are an undischarged bankrupt: This prevents further financial strain and ensures responsible financial behaviour.
  • Attend credit counselling sessions: These sessions guide budgeting, debt management, and responsible credit use.

Becoming Bankrupt: Potential Misconduct in Bankruptcy

Types of Misconduct

Engaging in dishonest or irresponsible behaviour during bankruptcy can have severe consequences. Examples of misconduct include:

  • Concealing assets: Hiding assets from the Trustee to avoid their distribution to creditors.
  • Providing false information: Submitting inaccurate financial information during the bankruptcy process.
  • Making fraudulent transfers: Transferring assets to family members or friends to avoid their inclusion in the bankruptcy estate.

Bankruptcy misconduct can be categorized into various types:

  • Fraudulent activities: Intentional deception to gain an unfair advantage during the bankruptcy process.
  • Non-compliance with bankruptcy laws: Failing to fulfill legal obligations outlined in bankruptcy regulations.
  • Breaching fiduciary duties: Violating the trust placed in the bankrupt individual by the trustee or creditors.

Reporting Misconduct

If you suspect any misconduct during a bankruptcy case, reporting it to the relevant authorities is crucial. These authorities include:

  • The Licensed Insolvency Trustee: The Trustee is responsible for investigating and addressing any potential misconduct.
  • The Office of the Superintendent of Bankruptcy: The regulatory body overseeing bankruptcy proceedings in Canada.

Consequences of Misconduct

Engaging in misconduct during bankruptcy can lead to serious consequences:

  • Extension of bankruptcy: The bankruptcy period might be prolonged as a penalty for misconduct.
  • Denial of discharge: The court might refuse to grant a discharge, meaning debts are not eliminated, and creditors can continue pursuing repayment.
  • Criminal charges: In fraud or other illegal activities, criminal charges might be filed against the individual.

    becoming bankrupt
    becoming bankrupt

Becoming Bankrupt: Exploring Case Summaries

Real-Life Examples of Opposition to Discharges

Examining real-life cases where creditors opposed the discharge of bankrupt individuals can provide valuable insights into the consequences of misconduct:

  • Case Study 1: A bankrupt individual concealed assets, carried out some disposition of property before filing bankruptcy and provided false information to the trustee. This resulted in the creditor’s opposition to discharge, leading to an extended bankruptcy period and the requirement to repay a portion of the debt.
  • Case Study 2: A business owner engaged in fraudulent transfers of assets before filing for bankruptcy. This action led to a denial of discharge and potential criminal charges for financial fraud.

Key Insights from Case Studies

The following points emphasize critical lessons learned from various case studies:

  • Transparency and honesty: It is essential to provide complete and accurate financial information throughout the bankruptcy process to ensure clarity and integrity..
  • Compliance with bankruptcy laws: Adhering to all legal requirements and cooperating with the trustee is vital for a smooth bankruptcy process.
  • Seeking professional guidance: Consulting with a Licensed Insolvency Trustee can assist individuals in understanding their obligations and in avoiding potential issues related to misconduct.

Becoming Bankrupt: Common Misconceptions About Bankruptcy

Debunking Myths

Several misconceptions surrounding bankruptcy often create unnecessary fear and anxiety. Some common myths include:

  • Myth 1: Bankruptcy ruins your credit forever.
  • Reality: While bankruptcy negatively impacts your credit score, it is not a permanent mark. With responsible financial behaviour, you can rebuild your credit over time.
  • Myth 2: You lose everything you own in bankruptcy.
  • Reality: Certain assets are exempt from seizure in bankruptcy, such as essential household items and a certain amount of equity in your primary residence or motor vehicle.
  • Myth 3: Bankruptcy is a sign of personal failure.
  • Reality: Bankruptcy is often a result of unforeseen circumstances, economic hardship, or poor financial decisions. It is a legal process designed to provide a fresh start and should not be viewed as a personal failing.

    becoming bankrupt
    becoming bankrupt

Becoming Bankrupt: Strategies for Avoiding Bankruptcy

While bankruptcy might be unavoidable in some situations, the insolvent person can take proactive measures can help reduce the risk:

Financial Planning and Budgeting

  • Create a realistic budget: Track your income and expenses to identify areas where you can cut back and save.
  • Set financial goals: Establish short-term and long-term goals to stay motivated and focused on your financial well-being.
  • Seek financial education: Improve your financial literacy by attending workshops, reading books, or consulting with financial advisors.

Debt Management Options

  • Debt consolidation: Combining multiple debts into a single loan with a lower interest rate can simplify payments and reduce overall interest costs.
  • Credit counselling: Non-profit organizations offer credit counselling services to help individuals develop a debt management plan and negotiate with creditors.
  • Consumer proposal: This legally binding agreement allows individuals to repay a portion of their debt over a specific period, avoiding bankruptcy.

Becoming Bankrupt: Rebuilding Credit After Bankruptcy

Steps to Rebuild Credit Rating

While bankruptcy negatively impacts your credit score, it is possible to rebuild it over time:

  • Obtain a secured credit card: This type of credit card requires a security deposit, helping you establish a positive credit history.
  • Make all payments on time: Consistently paying your bills on time demonstrates responsible financial behaviour to lenders.
  • Monitor your credit report: Regularly check your credit report for errors and ensure accurate information is being reported.

Using Credit Responsibly

  • Avoid excessive credit card use: Limit your credit card spending and focus on using cash or debit cards whenever possible.
  • Maintain a low credit utilization ratio: Keep your credit card balances low compared to your available credit limit.

    becoming bankrupt
    becoming bankrupt

Becoming Bankrupt FAQ

1. What is bankruptcy in Canada?

Bankruptcy is a legal process where individuals or businesses that are unable to repay their debts can seek relief from their financial obligations. It is a formal declaration of insolvency, signifying that an individual or business cannot meet their financial commitments.

2. What are the different types of bankruptcy?

There are several types of bankruptcy, each with its own specific rules and implications. The most common types include:

  • Bankruptcy (Liquidation): This involves the sale of a debtor’s non-exempt assets to repay creditors.
  • Consumer Proposal Financial Restructuring (Reorganization): This allows individuals with a regular income to propose a plan to repay debts over three to five years.
  • Proposal Financial Restructuring (Reorganization): This is typically used by businesses to restructure their debts and operations while continuing to operate.

3. What Drives Individuals to Pursue An Assignment In Bankruptcy?

Individuals may seek bankruptcy protection for a variety of reasons, including:

  • Loss of Employment: Sudden job loss can significantly reduce income, hindering one’s ability to fulfill financial commitments.
  • Medical Costs: Escalating healthcare expenses can quickly destabilize a person’s financial situation.
  • Separation or Divorce: The financial burden that often accompanies divorce can result in bankruptcy for one or both partners.
  • Business Collapse: Economic challenges or ineffective management can lead businesses to declare bankruptcy.
  • Excessive Debt: The accumulation of substantial debt through credit cards, loans, and other financial instruments can create an overwhelming repayment burden. Student loans also carry a burden for many, but they are more difficult to discharge in a bankruptcy.

4. What is the role of a Licensed Insolvency Trustee?

A Licensed Insolvency Trustee (LIT) is a regulated professional authorized to administer bankruptcies and proposals in Canada. Their role includes:

  • Assessing the debtor’s financial situation.
  • Advising debtors on their options.
  • Filing the necessary paperwork with the court.
  • Administering the bankrupt estate.
  • Distributing funds to creditors.
  • Providing guidance and support to the bankrupt individual.

5. What are the obligations of someone who has filed for bankruptcy?

A bankrupt individual has several obligations, including:

  • Disclosing all assets and liabilities to the LIT.
  • Cooperating with the LIT throughout the bankruptcy process.
  • Attending all required meetings and hearings.
  • Surrendering non-exempt assets for sale.
  • Making payments to the LIT as required.
  • Reporting any changes in financial situation.

6. What are some common misconceptions about bankruptcy?

  • You will lose everything: While some assets may be sold to repay creditors, you are allowed to keep certain exempt assets, such as basic household goods and tools of the trade.
  • You can never get credit again: While bankruptcy will negatively impact your credit rating, you can take steps to rebuild your credit after discharge.
  • Bankruptcy is a shameful secret: Bankruptcy is a legal process designed to provide relief from overwhelming debt. It is not a reflection of your character or worth.

7. How can I rebuild my credit after becoming bankrupt?

Rebuilding credit after bankruptcy takes time and effort, but it is possible. Here are some steps you can take:

  • Obtain a secured credit card.
  • Become an authorized user on a responsible friend or family member’s credit card.
  • Make all payments on time and in full.
  • Avoid taking on new debt unless necessary.
  • Monitor your credit report regularly and dispute any errors.

8. Where can I find more information and support?

There are several resources available to individuals considering or going through bankruptcy:

  • Licensed Insolvency Trustees: LITs can provide personalized advice and guidance.
  • Government of Canada website: The Government of Canada website provides information about bankruptcy laws and procedures.
  • Credit counselling agencies: Non-profit credit counselling agencies can offer financial education and debt management advice.
  • Support groups: Online and in-person support groups can provide emotional support and practical tips from others who have experienced bankruptcy.

8. Can a deceased person file an assignment into bankruptcyan ?

A deceased person cannot do anything. However, if the Executor of the Estate determines that the Estate is insolvent, the Executor can make an the application to the court for the authority to put the deceased Estate into bankruptcy.

Becoming Bankrupt: Available Resources and Support Services

Various resources are available to assist individuals and businesses dealing with financial difficulties and considering bankruptcy:

  • Licensed Insolvency Trustees: These professionals provide guidance, support, and expertise throughout the bankruptcy process.
  • Credit counselling agencies: Non-profit organizations offer financial counselling, debt management plans, and educational resources.
  • Government websites: Websites like the Office of the Superintendent of Bankruptcy provide valuable information on bankruptcy laws and regulations in Canada.

Remember, seeking help and taking proactive steps toward financial recovery are crucial for navigating difficult situations and rebuilding your financial well-being.

Becoming Bankrupt: Conclusion

Becoming bankrupt can be a challenging experience, but it’s crucial to remember that it’s not the end of the road. By understanding the process, obligations, and potential consequences, individuals can navigate this difficult period more effectively.

It’s important to seek guidance from a Licensed Insolvency Trustee and explore resources and support services available to help rebuild financial stability and creditworthiness. Remember, becoming bankrupt offers a fresh start and an opportunity to learn from past mistakes and make informed financial decisions for a brighter future.

I hope you enjoyed this becoming bankrupt Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring due to distressed real estate or other reasons? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or someone with too much personal debt.

You are worried because you are facing significant financial challenges. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding the bankruptcy process. We can get you debt relief freedom using processes that are a bankruptcy alternative.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious about finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.

Call us now for a free consultation. We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.

becoming bankrupt
becoming bankrupt
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EVANDER KANE CONTRACT: CAN AN INVOLUNTARY CHAPTER 11 BANKRUPTCY UNVEIL INDENTURED SERVITUDE?

We hope that you and your family are safe, healthy and secure during this coronavirus pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Evander Kane contract: Evander Kane to bankruptcy court – Lenders’ argument violates U.S. ban on slavery

In January 2021, I wrote about the then-recent voluntary filing of Evander Kane Chapter 7 bankruptcy on January 9, 2021. That is one of the chapters in the United States Bankruptcy Code, the federal bankruptcy law in the USA. I talked about the main reason for his personal trouble leading to his bankruptcy being gambling losses. Evander Kane is an NHL forward. The Evander Kane contract is held by the San Jose Sharks.

I also explained the issue that Arkansas-based Centennial Bank was suing both Evander Kane and the Sharks. They claim that they owe over US$8M, containing principal, interest and bank costs after both Kane and the team stopped making payments in 2019. Until then, the Sharks had been deducting loan payments from the salary they would otherwise be paying him under the Evander Kane contract. This was Centennial Bank’s only source of repayment.

According to Centennial Bank’s case, the Sharks were anticipated to make continual regular monthly distributions to the bank by subtracting funds from Kane’s wages till the total owing was fully repaid. In its claim, Centennial insists that it was Evander Kane that had in fact got the Sharks to stop payments on the loan from the Evander Kane contract with the San Jose Sharks.

Before discussing the current twist in his bankruptcy, let’s go over a few basic details.

What Is a voluntary bankruptcy?

A voluntary bankruptcy in the US and in Canada is the same concept. The process is just a little different. In the United States, in a voluntary bankruptcy, the insolvent debtor brings a bankruptcy petition before the U.S. Bankruptcy Court to declare bankruptcy because they are insolvent and cannot afford to pay their debts in full as they come due.

In Canada, the reason for filing a voluntary bankruptcy is the same. The insolvent debtor meets with a licensed insolvency trustee and files an assignment in bankruptcy. The licensed insolvency trustee then administers the Canadian bankruptcy process under the Bankruptcy and Insolvency Act (Canada).

Evander Kane filed for voluntary bankruptcy, notwithstanding the Evander Kane contract pays him millions of dollars.

What Is an Involuntary Bankruptcy?

Involuntary bankruptcy is a legal action that creditors bring against an insolvent individual or company that will force the insolvent debtor right into bankruptcy. In Canada, the requirement to bring a Bankruptcy Application by any creditor, or group of creditors is to prove that:

  • they are owed at least $1,000; and
  • that the debtor has committed one or more acts of bankruptcy in the preceding 12 months.

If the Bankruptcy Application is successful, the Court will issue a Bankruptcy Order and the insolvent debtor will officially be bankrupt.

The Evander Kane contract

It has been reported that until now, Evander Kane has earned $52.9 million over his 11-year span in the NHL. In his bankruptcy declaration, Kane stated that in each of the last 3 years the San Jose Sharks Evander Kane contract paid him:

Year US$ wage

January 1 to December 31, 2018 $6,000,000.

January 1 to December 31, 2019 $7,000,000.

January 1 to December 31, 2020 $7,000,000.

The current Evander Kane contract was originally a seven-year contract. This is a seven-year, $49 million deal. The contract had a signing bonus of $12 million and an average annual salary of $7 million. His current season salary is said to be $3 million. Evander Kane becomes a free agent at the end of his current contract in 2025. All figures are in US dollars of course. Right now in the NHL’s 2020-21 season, Evander Kane is the Sharks’ second-leading scorer

That is unless the Evander Kane contract is repudiated by him through his bankruptcy. I highly doubt he would do that, but why would he even think of it you ask? Just to add more pressure, the San Jose Sharks inform bankruptcy court of potential contract termination. This is seen as just a technical move. They are advising the bankruptcy court that it is a possibility. I highly doubt there will be an Evander Kane contract termination in bankruptcy.

OK, now for the good stuff.

evander kane contract
evander kane contract

Evander Kane contract: Evander Kane files motion claiming lenders wishes violate 13th Amendment

Remember I said that part of the payment stream under the Evander Kane contract was to be paid regularly by the San Jose Sharks directly to Centennial Bank until his $8 million dollar loan was repaid.

Five lending institutions, led by Zions Bancorp, filed a motion to be heard before a bankruptcy judge, to convert Evander Kane‘s voluntary Chapter 7, which would force him to pay creditors using only his current assets, to an involuntary Chapter 11 proceeding. Such a conversion would position the continuing years under the Evander Kane contract under the control of his creditors and allow them to garnish his earnings.

Evander Kane said that a conversion to an involuntary Chapter 11 is to make sure that the Chapter 11 Trustee control Kane’s future income for whatever duration of years left under the Evander Kane contract that the Chapter 11 Trustee, as well as the creditors, deem suitable for a suitable Chapter 11 debt settlement plan.

Evander Kane’s motion states that if allowed, such a move would place him in indentured servitude to his creditors which is illegal under the 13th Amendment of the US Constitution.

Indentured Servitude vs. Slavery

Indentured servitude initially started in America in the years after the settlement of Jamestown by the Virginia Company in 1607.

The concept of indentured servitude was born of a need for low-cost labour. The earliest inhabitants soon understood that they had a great deal of land to look after, yet no one to take care of it. With passage to the Colonies costly for anyone but the rich, the Virginia Company established the system of indentured servitude to bring in workers. Indentured servants came to be crucial to the early American economic situation.

Servants typically worked 4 to 7 years for travel, board and accommodations. While the life of an indentured servant was severe and limiting, just like slavery, it wasn’t slavery because they agreed to this arrangement through a contract. Their life was awful and harsh.

Numerous landowners began feeling endangered by newly freed indentured servants‘ need for land. The colonial elite recognized the issues of indentured bondage. Landowners turned to rely on African slavery as an extra lucrative and also an ever-renewable source of labour. That is why the shift from indentured servants to African slavery, especially slaves from West Africa, had actually started.

By 1675 slavery was well established, and by 1700 slaves had actually nearly completely taken over from indentured servants. With plentiful land and slave labour with no need for contracts in place to grow crops, southern plantations flourished. Family-based tobacco farming became an economic engine and a social standard.

The 13th Amendment of the US Constitution: The abolition of slavery

The 13th Amendment of the US Constitution was approved by Congress on January 31, 1865, and was ratified on December 6, 1865. It reads as follows:

“Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2

Congress shall have power to enforce this article by appropriate legislation.”

evander kane contract
evander kane contract

Evander Kane contract: His motion may be outlandish, but it is not without precedent

Believe it or not, I found two recent instances of an insolvent debtor claiming that a creditor’s proposed Chapter 11 debt settlement plan would violate the Thirteenth Amendment. One of them was famous, the other not so much.

50 Cent says bankruptcy plan would be like indentured servitude

Curtis James Jackson III, the rapper known as 50 Cent had made a voluntary bankruptcy filing.

He declared bankruptcy days after he was convicted of releasing a sex tape online in June 2015, and the court ordered him to pay $5 million to the victim. The previous year, Jackson had been ordered to pay $17 million to headphone maker Sleek Audio for copying their styles.

His creditors brought forward a plan that would force 50 Cent to hand over the money he earns to a Chapter 11 Trustee, without any accommodation for living expenses. His lawyers made the uncommon claim that the plan violates the Thirteenth Amendment’s prohibition on involuntary servitude. They argued that if it was allowed, it would be a form of modern day slavery.

That argument never got tested in Court. 50 Cent and his lawyers negotiated with the creditors to come to an agreement on what payments would be made from the bankruptcy to the creditors.

Can an Involuntary Chapter 11 Ever Constitute Involuntary Servitude?

The next case I found is very recent and on point. It is Breland v. United States (In re Breland), United States Court of Appeals for the Eleventh Circuit, March 10, 2021, Decided, No. 19-14321. This case involves an uncommon claim. The debtor is a real estate developer that declared Chapter 11 in the Southern District of Alabama. The bankruptcy court designated a trustee based on proof that the debtor was defrauding creditors. The insolvent debtor declared that his Thirteenth Amendment rights had actually been violated because his income would go to the Chapter 11 Bankruptcy Trustee putting his cash beyond his control. He claimed this was debt slavery.

The bankruptcy court disregarded the claim on the basis that it was not yet ripe since no reorg plan had actually been recommended to need the debtor to work for the bankruptcy estate or his creditors. On appeal, the appellate court upheld the lower court decision on the ground that the debtor lacked standing since he hadn’t revealed an injury-in-fact. The Eleventh Circuit’s ruling dealt with only the standing issue. Yet the court also remanded the case to the lower court to consider the Thirteenth Amendment infraction claim.

For a plaintiff to have standing, the appellate court said the plaintiff must show (i) a real or imminent concrete injury-in-fact, (ii) that is traceable to the defendant’s actions, and (iii) that it can be restored with a favourable decision.

In Breland, the appointment of the Chapter 11 Trustee removed the debtor to do the normal things a debtor can do in a voluntary bankruptcy estate. The Eleventh Circuit ruled that the appointment of the Chapter 11 Trustee gave rise to an injury-in-fact. The injury could be remedied by eliminating the Trustee thereby enabling the debtor to resume his function as debtor-in-possession. As a result, the Eleventh Circuit ruled that the debtor had the standing to pursue his claim.

Time will tell how the lower court will deal with the claim and what kind of bankruptcy ruling may be made on whether there is a violation of the Thirteenth Amendment.

evander kane contract
evander kane contract

Evander Kane contract: Can an Involuntary Chapter 11 Ever Constitute Involuntary Servitude?

So from the above, you can see that the Evander Kane contract claim in his voluntary bankruptcy is not a new one. However, 50 Cent never pushed it far enough to get a court ruling. He negotiated with his creditors and came up with a mutually agreeable bankruptcy plan.

In Breland, the only issue decided so far is whether or not the bankrupt has standing to bring such a claim. The court has not yet heard evidence on the main issue. I am not aware of any court decision on this topic but then again, I am not an expert in US bankruptcy law.

I highly doubt that Evander Kane wants to either void the Evander Kane contract or go all the way to have a court ruling on the involuntary servitude issue. He clearly wants to make sure though that the Evander Kane contract does not become a servitude contract. Perhaps like 50 Cent, bolstered by the Breland decision that the issue is a live one, Evander Kane will negotiate a settlement with his creditors that he can live with rather than force a bankruptcy determination from the court. If he does that, the Evander Kane contract with Sharks will survive and he will share a portion of his future earnings with his creditors.

Evander Kane contract summary

I hope you enjoyed this Evander Kane contract Brandon Blog post. If you are concerned because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option, call me. It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties while avoiding bankruptcy. We can get you the relief you need and so deserve.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do. We help many people and companies stay clear of bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need, contact the Ira Smith Trustee & Receiver Inc. group today

Call us now for a no-cost consultation. We will get you or your business back up driving to healthy and balanced trouble-free operations and get rid of the discomfort factors in your life, Starting Over, Starting Now.

We hope that you and your family are safe, healthy and secure during this coronavirus pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

evander kane contract
evander kane contract
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Brandon Blog Post

3 TYPES OF BANKRUPTCIES: DO WE REALLY NEED IT?

3 Types of bankruptcies introduction

Two weeks ago I described the personal bankruptcy process Canada. Last week I described the Canadian corporate bankruptcy process. This week I want to start talking about the 3 types of bankruptcies in Canada.

3 types of bankruptcies: Voluntary and involuntary bankruptcy

In the last two weeks, I talked about both the personal and corporate bankruptcy processes. The way I described the bankruptcies it was all about the voluntary process of entering bankruptcy by filing an assignment in bankruptcy. That’s the 1st type of bankruptcy out of the 3 types of bankruptcies.

The second type which I will be speaking about today is the involuntary process of being pushed into bankruptcy. So how does one get placed into bankruptcy on an involuntary basis? It’s by a bankruptcy application.

3 types of bankruptcies: The bankruptcy application – the involuntary method

In order to file a bankruptcy application, one or more creditors must file the application to place the debtor, corporate or personal into bankruptcy. The creditor or group of creditors

must have unsecured debt of at least $1000 and the debtor must have committed at least 1 act of bankruptcy in the six months preceding the date of the bankruptcy application the acts of bankruptcy are laid out in the Bankruptcy and Insolvency Act (Canada).

3 types of bankruptcies: Acts of bankruptcy

So what are they? A debtor commits an act of bankruptcy in each of the following cases:

  • If in Canada or elsewhere the debtor makes an assignment of its property to a trustee for the benefit of its creditors.
  • A debtor makes a fraudulent gift delivery or transfer of all or part of its property.
  • The debtor makes any transfer of its property or any part of it that creates a charge on it that would be void as against a trustee and bankruptcy.
  • If with the intent to defeat or delay creditors the debtor departs out of Canada and absence itself.
  • If the debtor permits any execution or another process to be levied against it where it’s property is seized in order to be sold and the debtor does not redeem its property.
  • If the debtor exhibits to any meeting of creditors a statement of assets and liabilities that shows the debtor is insolvent if the debtor removes disposes of property or attempts to do so intending to defraud defeat or delay creditors.
  • If the debtor gives notice to any creditor that payments are being suspended or if the debtor ceases to meet its liabilities generally as they become do a bankruptcy application must be accompanied by an affidavit attesting to the debt and the alleged acts of bankruptcy3 types of bankruptcies

3 types of bankruptcies: What a bankruptcy application must look like

The affidavit must be deposed by a creditor or a representative of a creditor especially a corporate creditor and that representative must have personal knowledge of the facts. The bankruptcy application must be filed with the court having jurisdiction based on the location of the debtor. A bankruptcy application cannot be withdrawn without the permission of the court.

If there is a concern that the debtor’s assets might dissipate between the date of filing the bankruptcy application and the date of the court hearing the application the court can appoint the proposed licensed insolvency trustee to preserve and protect the assets but not too otherwise interfere in the running of the debtor’s business.

A notice of the time and place of the court hearing and all the motion material being used by the creditor or group of creditors must be served on the debtor.

3 types of bankruptcies: The bankruptcy order

A bankruptcy order could be issued 10 days after the service on the debtor of the bankruptcy application if it is not opposed or otherwise defended by the debtor. If it is defended then there will have to be a trial for the court to determine if a bankruptcy order should be issued and whatever the court decides. It is, of course, subject to the parties’ rights of appeal.

The debtor is bankrupt once the bankruptcy order is issued. The bankruptcy order puts on hold the enforcement rights of the creditors except for secured creditors holding valid security as soon as a bankruptcy order has been made the debtor’s property vests in the bankruptcy trustee and the bankruptcy administration begins.

To refresh yourself about personal bankruptcy administration check out my blog from two weeks ago. For a review again of the administration of a corporate bankruptcy check out my blog from last week.

Now the title of this blog is three types of bankruptcy. In the last two weeks, I have described voluntary bankruptcy for both an individual and a corporation by the filing of an assignment of bankruptcy. This week I talked about the involuntary bankruptcy process of the bankruptcy application for a bankruptcy order.

Next week I will discuss the third out of the 3 types of bankruptcies in Canada.

3 types of bankruptcies summary

I hope you enjoyed this 3 types of bankruptcies blog. The Ira Smith team is available to help you at any time.

We offer sound advice and a solid plan for Starting Over Starting Now so that you’ll be well on your way to a debt-free life in no time. For more information on a no-cost basis please visit our website or call us.

Do you or your company have excessive debt and looking for debt restructuring? Would not it be great if you could do a turn-around?

The Ira Smith Team understands how to do a debt restructuring. More notably, we comprehend the requirements of the business owner or the person who has too much individual debt. Because you are dealing with these stressful financial issues, you are anxious.

It is not your fault you can’t fix this problem on your own. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will get you or your business back on the roadway to healthy and balanced worry-free operations and end the pain points in your life, Starting Over, Starting Now.3 types of bankruptcies

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Brandon Blog Post

THE HONEST TO GOODNESS TRUTH ON BANKRUPTING A CORPORATION

bankrupting a corporation

If you would prefer to listen to the audio version of this Brandon’s Blog, please scroll to the bottom and click on the podcast

Bankrupting a corporation: Introduction

I have blogged on personal and corporate insolvency matters for just over 6 years now. I have covered many topics. During a recent corporate bankruptcy consultation, I realized that I have never written about what the steps are for bankrupting a corporation. An important issue arising from this topic would be what the Directors of a corporation going into bankruptcy should know.

There are 3 ways for a company to be bankrupt

Like in all bankruptcy matters, there are three methods that result in bankrupting a corporation in Canada. The first way is being pushed, and the second way is jumping in with both feet voluntarily (I know, corporations don’t have feet!). The third way is to have the company’s creditors vote down a corporation’s attempt to restructure under a Proposal under the Bankruptcy and Insolvency Act (Canada) (BIA). In this Brandon’s Blog, I will focus on describing the first two methods.

Bankruptcy application – an involuntary bankruptcy

Being pushed means that one or more unsecured creditors, owed in total at least $1,000, has made a motion before the Court asking that a Bankruptcy Order be made against the company. The motion is called a Bankruptcy Application.

In order to do so, the unsecured creditor(s) have to:

  • retain a bankruptcy lawyer.
  • gotten the consent of a licensed insolvency trustee (formerly called a bankruptcy trustee) (Trustee) to administer the corporate bankruptcy.
  • In addition to proving the debt owing, the applicant(s) also have to prove that at least one act of bankruptcy was committed by the company within the 6 months before the filing of the bankruptcy application.

There are various acts of bankruptcy listed in Section 42(1) of the BIA. Commonly seen acts of bankruptcy are fraudulent transfers of property, allowing a lawful seizure of some or all of their property by a creditor under a lawful process, and the catch-all ceasing to meet many liabilities as they come due.

Jumping in with both feet – a voluntary bankruptcy

By this term, I mean filing an Assignment in Bankruptcy. In this case, rather than someone going to Court, the Directors call a Directors’ meeting. At the meeting, the Directors resolve that the company is experiencing financial difficulty and cannot continue to run. The Directors also reserve that the company should file an assignment in bankruptcy and it gives authority to one Director to sign all the necessary documents.

The Director who has the authority to sign the bankruptcy documents is called the Designated Officer. Before the documents are ready for signing, the Trustee who is selected must get enough information to prepare the documentation.

Whether bankrupting a corporation in Ontario or elsewhere in Canada and regardless if it is a result of a Bankruptcy Order or an Assignment in Bankruptcy, the information the Trustee requires is the same.

Information and documents a Trustee needs

The Trustee requires a great deal of information before being able to properly administer a voluntary or involuntary corporate bankruptcy. Sometimes company officials can provide it and in other cases, the Trustee has to dig through the books and records of the company.

Here is the lengthy list of what is needed:

  • Exact corporate name and address of head office, details of any other locations, copy of any premises leases.
  • Minute book and corporate seal.
  • Bankruptcy Order or the resolution of the Directors.
  • Full description of the nature of the business.
  • Names of Officers and Directors and their addresses.
  • Date of incorporation of the company.
  • The date the company ceased operations, if prior to the date of bankruptcy.
  • The greatest number of employees employed in the last 12 months.
  • All employees – listing of names, addresses, social insurance number, amounts owing for each of severance, termination, wages, vacation pay, commissions and expenses.
  • Employee T4’s & ROE’s for current year employees (employer should issue to all employees for the year of bankruptcy and earlier if unissued).
  • Creditors’ listing (accounts payable) – details consisting of name, address, account number(s), and respective amounts owing classified as follows:
    • Secured – banks, leasing company, source deductions, etc.
    • Preferred – wages owing, rent to landlords, government remittances outstanding:
    • Workers Compensation Board, if applicable.
    • Municipal authorities: e.g. business taxes and realty taxes.
    • Employer’s health tax.
    • Unsecured – trade suppliers; Hydro; Bell Canada (quote telephone number(s); gas, etc.
    • Details of any unsecured private party loans, shareholder loans or advances due to the company.
  • Details of any unions, if applicable, including name, address, account number.
  • Details of contingent liabilities and pending legal action, if any.
  • Accounts receivable – aged trial balance and detailed backup documentation (invoices, delivery slips, purchase orders, etc.) to support collection efforts. From the aged trial balance, classify the accounts as good, doubtful, bad to equal the total balance.
  • Inventory – detailed information on inventory cost and the company’s assessment of estimated realizable values.
  • Machinery, equipment and plant – detailed listing providing original cost, if possible and estimated realizable value.
  • Office furniture & fixtures – detailed listing providing original cost, if possible and estimated realizable value.
  • Real estate – all details of real estate owned, including deeds, legal descriptions, original costs, appraisals (if any), an estimated fair market value.
  • Vehicles – provide descriptions including year, model, VIN, kilometres, original costs and estimated realizable value. Note if any vehicles are leased/financed and provide copies of the lease/finance documentation.
  • Other assets – details of other assets such as prepaid expenses, deposits, goodwill, intangibles, shares or any investments, patents, trademarks.
  • Bank accounts – details of all bank accounts, including name, address, account number and approximate balance in the accounts.
  • Last 12 months of accounting records, bank statements and cancelled cheques (for all accounts maintained).
  • Financial statements – most recent.
  • Corporate solicitor – name and address.
  • Listing of leased equipment (copy of leases) – vehicles, office and any other equipment.
  • Insurance policy(ies).
  • A brief narrative of management’s opinion as to cause(s) of insolvency.
  • Disclosure of any sale or disposition of assets, outside of the ordinary course of business, in the last year.

The Trustee’s job

In a corporate bankruptcy, the Trustee, with certain exceptions, takes possession of the assets of the company. If the Trustee is aware that there are deemed trust claims against the assets, or there is a secured creditor, like a Chartered Bank, the Trustee must be careful. If there are, the Trustee should have already had a conversation with those parties prior to the bankruptcy, to decide what rights, if any, the Trustee may have against such property.

Assuming there are assets not subject to the valid claim of third parties, the Trustee must at least:

  1. Establish whether the value of the assets will be enhanced if the Trustee operates the company’s business.
  2. Take into account what obstacles exist in running the business and how to reduce risk if it is beneficial or necessary to run the business.
  3. Decide what are the very best means to sell the properties? En bloc as one parcel or individually or at least several parcels?
  4. Determine if there are any 3rd party owned assets on the company’s premises?
  5. Identify if there are any company assets on the property of 3rd parties?
  6. Prepare the required reporting to Service Canada so that the former employees will be able to make their Wage Earner Protection Plan Act claims.
  7. See if there are proper insurance coverage and proper physical security over the assets?
  8. Identify any inventory been delivered in the 30 days prior to the date of bankruptcy? What rights of revindication might exist?
  9. Circularize the creditors requesting claims to be filed to understand what the depth and breadth of claims against the company are. This way, the Trustee can formulate a distribution to creditors, in priority, with the net funds available from the sale of assets.

What the Directors should be concerned about

Directors should have two concerns when contemplating bankrupting a corporation. First, they should be concerned about any decisions they have made or senior management actions they have ratified.

For example, Sears in the United States recently lodged a claim versus its previous CEO Eddie Lampert and a string of its top-level previous Directors. This includes Eddie Lampert’s previous Yale roomie Treasury Secretary Steven Mnuchin. The allegation is that the Directors condoned and approved Eddie Lampert’s actions for presumably swiping billions of dollars from the once-storied merchant.

Second, there are various types of claims against the corporation that are also personal claims against Directors. The list includes Director liability for unpaid:

  • Wages
  • HST
  • Source deductions
  • Certain environmental offences
  • Cybersecurity risks

In general, there is a relatively short list of things Directors can be personally liable for. In many cases, there will be Director and Officer Insurance to be relied upon. Directors may also have a due diligence defence.

A Director resigning their position will not protect them against any liability that would be a personal Director liability prior to their resignation.

Are you a Corporate Director?

Are you a Director of a corporation that has too much debt? Is your company’s capital insufficient to fulfill every one of its economic responsibilities and may be insolvent? Are you worried that your firm’s major secured lender will soon pull its financing completely and demand repayment in full which the company will not be able to do?

If you responded yes to any of these questions, call the Ira Smith Team today so we can kill off the stress and anxiety that these financial troubles have activated. We will create a strategy for the Directors unique for your company’s problems so that it can avoid bankruptcy and become profitable and continue to employ many people.

Call the Ira Smith Team today. We have decades and generations of experience restructuring and turning around companies seeking financial restructuring or a debt negotiation strategy. As a licensed insolvency trustee, we are the only specialists recognized, certified and monitored by the federal government to offer insolvency guidance to save businesses.

You can have a no-cost assessment so we can fix your company’s debt problems. Call the Ira Smith Team today. This will absolutely allow you to return to being efficient, healthy and balanced, Starting Over Starting Now.

Call a Trustee Now!