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The Chapter 11 Debtor in Possession
While individuals are not precluded
from using chapter 11, it is more typically
used to reorganize a business,
which may be a corporation, sole proprietorship,
or partnership. A corporation
exists separate and apart from its
owners, the stockholders.
The chapter
11 bankruptcy case of a corporation
(corporation as debtor) does not put the
personal assets of the stockholders at
risk other than the value of their investment
in the company's stock.
A sole
proprietorship (owner as debtor), on
the other hand, does not have an identity
separate and distinct from its
owner(s); accordingly, a bankruptcy
case involving a sole proprietorship
includes both the business and personal
assets of the owners-debtors. Like a corporation,
a partnership exists separate
and apart from its partners.
In a partnership
bankruptcy case (partnership as
debtor), however, the partners' personal
assets may, in some cases, be used to
pay creditors in the bankruptcy case or
the partners may, themselves, be forced
to file for bankruptcy protection.
Section 1107 of the Code places the
debtor in possession in the position of a
fiduciary, with the rights and powers of
a chapter 11 trustee, and requires the
performance of all but the investigative
functions and duties of a trustee. These
duties are set forth in the Bankruptcy
Code and Federal Rules of Bankruptcy
Procedure. 11 U.S.C. §§ 1106, 1107;
Fed. R. Bankr. P. 2015(a). Such powers
and duties include accounting for property,
examining and objecting to claims,
and filing informational reports as
required by the court and the United
States trustee, such as monthly operating
reports. The debtor in possession
also has many of the other powers and
duties of a trustee including the right,
with the court's approval, to employ
attorneys, accountants, appraisers, auctioneers,
or other professional persons
to assist the debtor during its bankruptcy
case. Other responsibilities
include filing tax returns and filing such
reports as are necessary or as the court
orders after confirmation, such as a
final accounting.
The United States
trustee is responsible for monitoring
the compliance of the debtor in possession
with the reporting requirements.
It should be noted that railroad reorganizations
have specific requirements
under subsection IV of chapter 11
which will not be addressed here and
that stock and commodity brokers are
prohibited from filing under chapter 11
and are restricted to chapter 7.
11 U.S.C. § 109(d).
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