Getting a Fresh Financial Start After Closing Down Your Small Business

Closing down a business can be messy. A bankruptcy filed to deal with its financial fallout is often more complicated than a normal consumer bankruptcy case. But not necessarily.  In one respect at least, a business bankruptcy can actually be much easier than a consumer one.  

If you’ve owned a small business that you have already shut down, or are about to, you may be afraid of filing bankruptcy because you’ve heard that “business bankruptcies” are terribly expensive and not a good way to wrap up the affairs of a business. In the next few blogs I will address this concern by showing ways that bankruptcy can be a relatively simple and effective solution.

Today I start with a little twist in the “means test” that favors certain former business owners over normal consumers.

The “means test” determines whether you may file a “straight” Chapter 7 case to discharge your debts in a matter of a few months, or instead must file a 3-to-5-year Chapter 13 payment case. Unless you need some of the other benefits of Chapter 13, Chapter 7 is usually preferred because it gets you to a fresh start much more quickly and cheaply.

In many situations, a former business owner will NOT be able to pass the means test and so will be required to go through Chapter 13. For example:

  • If, after closing her business a business owner succeeded in getting a good job before filing bankruptcy, the income from that job may be higher than the “median income” applicable to her state and family size. So she may well not pass the “means test.”
  • If the business was operated by one spouse while the other continued working and earning a decent income, that other spouse’s income alone may bump the couple above their applicable “median income,” again with the result of not passing the “means test.”
  • If a debtor’s income is higher than the applicable “median income,” he may still be able to pass the means test by deducting from his income his actual and/or approved expenses. But a former business owner will not be able to deduct monthly payments to secured creditors on business collateral he is surrendering—vehicles and equipment, for example—or for other business expenses, such as rent on the former business premises. This reduces the likelihood that he will have enough allowed expenses to pass the “means test.”

But here’s the good news for some former business owners: the “means test” only applies if your “debts are primarily consumer debts.” (See Section 707(b)(1) of the Bankruptcy Code.) So if your debts are primarily business debts—more than 50%–you essentially can skip the “means test.”

Careful, because by “debts” the law means all debts, including home mortgages and personal vehicle loans. So your business debts will usually have to be quite high to be more than all your consumer debts.

And to apply this law we must be very clear about the difference between these two types of debts. So what’s a “consumer debt”? The definition may sound familiar: it’s a “debt incurred by an individual primarily for a personal, family, or household purpose.” (Section 101(8).)  So, for example, if you took out a second mortgage on your home a few years ago explicitly to fund your business, the current balance on that second mortgage would not likely be a consumer debt.

Sometimes the line between these is not clear, so this is something you need to discuss thoroughly with your attorney if you want to avoid the “means test” under this “primarily business debts” exception.

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Massive Mortgage Settlement Finally Coming Together

The multibillion-dollar deal, more than a year in negotiations between the biggest home mortgage servicers on one side and the states’ attorneys general and federal agencies on the other, may be just days from being finished. The deadline for each state’s attorney general to decide whether to sign was Friday, February 3, but that has now been extended to Monday, February 6.

This settlement is to resolve allegations about an extensive series of foreclosure and mortgage loan-servicing abuses that came to light in the summer and fall of 2010. State and federal officials have since then been negotiating an agreement with five major mortgage servicers. It would provide some very specific mortgage relief to homeowners and would establish strict requirements for how banks could conduct foreclosures. The negotiations have gone back and forth, with various proposals being floated, resulting in very public displays of protest by various bank-friendly sets of attorneys general on one hand and by other more aggressive attorneys general on the other. A settlement now looks imminent, in large part because of the timing of the current election cycle, as well as the dire need for progress on the never-ending home foreclosure front —and because this has dragged on for so long.

Since this story is evolving every day, I’m going to provide you with a few recent news articles about it, introducing each one to help you decide if you want to look at it.

This USA Today article gets right to what we all care about, “Who benefits from possible $25B mortgage settlement?”  It’s actually a good summary—in a Q&A format—of the likely terms of the settlement and its effects on homeowners and the housing market. Some of the questions include: “How might the $25B be spent?” “Who will get [mortgage] principal reductions?” “How tough are the potential settlement terms on the banks?

“Mortgage deal would give states enforcement clout” from Reuters addresses the concern “that banks have not adequately followed through on prior settlements, a concern that has pushed government negotiators to establish more forceful enforcement mechanisms in this deal than have been used in the past.” So this deal gives the states, along with a separate “monitoring committee,” the power to go to court to enforce the terms of the settlement and to ask for penalties of up to $5 million per violation.

And if you want to get a taste of how complicated these negotiations have been on the technical side (without even accounting for the intense political pressures), here is a letter dated January 27, 2012 from the Nevada Attorney General to the officials who have been spearheading the settlement. In the letter, she asks for written answers to 38 questions so that her state can decide whether or not to sign on to the settlement. It’ll make your head spin. Don’t say I didn’t warn you.

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Americans Still Think the Same about Why the Rich Are Rich

The headline story: many more Americans now believe that strong conflict exists between the rich and the poor. The surprising backstory: our attitude has NOT changed about how the rich got to be that way.

This follows up on my last blog about the very recent report by the Pew Research Center titled “Rising Share of Americans See Conflict Between Rich and Poor.” In just the last couple of years there has been a major spike in public perceptions that serious class conflict exists in our society. I would think that with a big shift like this, people’s attitudes about how the wealthy acquired their wealth would have changed, too. But it hasn’t.

So how would you answer this survey question?

“Which of these statements come closer to your own views—even if neither is exactly right: Most rich people today are wealthy mainly because of their own hard work, ambition or education.  Or, most rich people today are wealthy mainly because they know the right people or were born into wealthy families.”

In the Pew survey, slightly more people—46%—said that a person’s wealth is the result of connections and birth, than those—43%—who said that it is a result of that person’s own efforts. Those percentages have virtually not shifted in the last three years. So if I’m reading this right, at the same time that many more Americans are feeling there’s more class conflict, no more of us are feeling that wealth is only for those born into it. In other words, just as many people continue to believe that wealth is attainable for those willing to work hard for it.

That belief may be a false hope for many since there is a lot of evidence that upward class mobility has taken a serious hit in America in the last decade or two. This may be reflected in the Pew report where it breaks down the differing responses among different categories of people:

  • Age:  More young people than older ones believe that wealth is a matter of birth and connections than personal effort. The percentage of people who believe that wealth is a result of personal effort went down with each younger age category—65+, 50-64, 35-49, and 18-34. It would be interesting to know if this greater doubt among younger people about not being able to gain wealth has persisted over time. Or are younger people just more keenly aware of –and in fact daily experiencing—serious challenges to their upward mobility.
  • Race:  Although Whites are split right down the middle—44% to 44%—on this question, a full 10% more Blacks—54%—believe that wealth is a matter of birth and connections. It’s hard not to see in this difference a greater lingering perception of discrimination among Blacks.
  • Politics:  My favorite breakdown is this one: Republicans and Democrats have the exact same percentages—32% and 58%—but on the opposite sides of the question! 32% of Republicans believe wealth is primarily a matter of birth and connections while 58% believe it’s a matter of hard work; 58% of Democrats believe it’s a matter of birth and connections and 32% believe it’s a matter of hard work. And independent voters? THEY are split down the middle. It all sounds like a fitting metaphor for our current political stalemate.
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