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JoeLawyer, Attorney
Category: Bankruptcy Law
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Experience:  Attorney in the practice of Bankruptcy Law since 1996
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I am the sole shareholder of a small mortgage corporation and

Customer Question

I am the sole shareholder of a small mortgage corporation and there is currently a outstanding agreed judgement that I was guarantor on and for whatever reason this creditor lawyers will not settle with me no matter what I offer them. Personally I am under Chapter 13 bk protection but the company is not and the creditor is going after it with a vengenance even though the company is not what it use to be and I have included them in my personal bk. We all know what is going on in the mortgage industry today, so instead of dealing with this headace I have decided to close the company. Instead of spending money to file a chapter 7 bk on behalf of the company, can I just notify all of my creditors and file an "Article of Dissolution" since I am personally under a chapter 13? Would this put a stop to this creditor?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  FiveStarLaw replied 5 years ago.
A Chapter 13 extends a co-debtor stay. Therefore the creditor appears to be inviolation of the automatice stay of the bankruptcy court. You may file an action against the creditor.
Customer: replied 5 years ago.

So why are they continuing to go after the company? I assume that since they sued the corporation and me as guarantor they could still go after the company since the company is not under bk protection even though I am the sole owner.

Expert:  FiveStarLaw replied 5 years ago.
Hello,

Perhaps they are unaware of the law.

The company appears to be under the co-debtor stay of the bankruptcy court. You will want to bring this to your attorney's attention. If you are unrepresented, you will want to contact the trustee and request his assistance.

Good luck.
Customer: replied 5 years ago.

Thanks for the reply but apartly the stay does not apply to individual businesses since the business is the co-debtor and not an individual. Anyway can you help me by answering my original question:

 

Instead of spending money to file a chapter 7 bk on behalf of the company, can I just notify all of my creditors and file an "Article of Dissolution" since I am personally under a chapter 13? Would this put a stop to this creditor?

Expert:  FiveStarLaw replied 5 years ago.
Hello,

I will opt out so that another expert can assist you.
Expert:  JoeLawyer replied 5 years ago.
Hello Wendixie:

I agree with FLAandNYLawyer that there is a co-debtor stay under 11 USC 1301, which often protects non-bankrupt co-debtors from creditors of the debtor in bankruptcy. The co-debtor stay is something that creditors can sometimes get around to continue to go after the non-bankruptcy co-debtor however, which may be what happened in your case.

For example, the co-debtor stay only applies to consumer debts, so if you incurred the debt as a part of a commercial (rather than consumer) transaction, then the co-debtor stay will not likely protect the co-debtor corporation. Also, even if the debt is consumer in nature, if the debtor does not structure his or her Chapter 13 Plan to pay the debt in full, the creditor can normally request and receive relief from the co-debtor stay to allow the creditor to still go after the non-bankrupt co-debtor.

So, in many cases in which a corporate owner files for personal bankruptcy, creditors will nonetheless continue to pursue the corporation.

Your question: Instead of spending money to file a chapter 7 bk on behalf of the company, can I just notify all of my creditors and file an "Article of Dissolution" since I am personally under a chapter 13?

Would this put a stop to this creditor?

Answer: It may. The creditors may continue to pursue the corporation if they think that the dissolution was improper. In other words, if the corporation has assets, those assets have to become someone else's property once the corporation ceases to exist, and creditors can object to the transfer of these corporate assets as fraudulent. So, it is often ideal to go through Ch 7 to show that there were no assets that were improperly given to someone else and taken away as potential assets the creditors could go after (if that makes sense). Generally, if one is going to dissolve a corporation that is being chased by creditors, it may be wise to hire an expert (accountant, lawyer, etc) to do the dissolution so no one accuses you of improperly disposing of corporate assets during the dissolution. It may be the case that there are no corporate assets, but again, having the backing of an expert to make that determination is something which may convince creditors to drop it and move on.

I hope this helps and a positive feedback is always appreciated if this was useful to you.

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience: Attorney in the practice of Bankruptcy Law since 1996
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