QUESTION

Can I repossess assets and/or company before they file bankruptcy due to non payment?

Asked on Dec 19th, 2015 on Bankruptcy - Michigan
More details to this question:
A bankruptcy filed by buyers of small business with purchase agreement and assets. Sold Tanning Salon with a purchase agreement for 6 year payment plan where we have used a local escrow company. As of the 22nd of December the buyer will be behind 2 escrow monthly payments and several late payment fees and now I have been informed that they are closing the business the 23 of December and is filing chapter 13. So what are my legal rights to repossession of my assets that are operating inventory assets? What will happen to the purchase agreement amount still owed and the amount they have already paid towards the purchase price. Will I lose the purchase agreement amount and my assets? Do they get to keep the assets? Can I repossess assets and/or company before they file bankruptcy due to non payment?
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6 ANSWERS

Commercial & Bankruptcy Law Attorney serving Powell, OH at Ronald K. Nims
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Did you have fixture and inventory liens? In that case, you'll own these assets in the end. Bankruptcy allows the buyers to invalidate the purchase contract. Money you've already received should remain yours but you're not going to get any other money except the assets.
Answered on Jan 08th, 2016 at 4:37 PM

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Bankruptcy Attorney serving Las Vegas, NV at A Fresh Start
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If these debtors do file Chapter 13, their Plan will say what they intend to do about repaying you to keep the business or returning it to you. If your goal is to repo the business, you will need permission of the bankruptcy court. I just hope your UCC filings are in apple pie order because if not, your security will be meaningless.
Answered on Jan 08th, 2016 at 4:36 PM

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First, you absolutely need to retain an experienced bankruptcy lawyer before you take any of these steps. Some could be illegal; most could be undone (I.e. reversed) by a bankruptcy trustee. Also, a business is not permitted to file under chapter 13, although the owners of the business may do so. Good Luck.
Answered on Jan 08th, 2016 at 4:39 AM

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Appellate Attorney serving Grosse Pointe Farms, MI at Musilli Brennan Associates, PLLC
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It is all going to be determined by your contracts with them and if you have properly secured your interests. If they have not yet filed see an attorney tomorrow, and in any case seek counsel because if you do not protect yourself you will be out of luck and increase your risk and losses, big time.
Answered on Jan 08th, 2016 at 4:38 AM

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Bankruptcy Attorney serving Las Vegas, NV
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If the debt is owed by and assets are owned in a corporation the bankruptcy does not stay collection. If the assets are owned by the individual and the debt owed by the same then you are stayed by the bankruptcy. You may file a claim in the case seeking payment. If you are secured in the assets you may be entitled to payment while the case is pending. I encourage you to seek legal counsel to review the sale documents and the bankruptcy filing.
Answered on Jan 08th, 2016 at 4:38 AM

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Most of the questions you are asking should have been addressed in the purchase agreement you made with the buyers. If you went to the trouble of using an escrow company, you should have anticipated the possibility of a bankruptcy. So the short answer is that the bankruptcy trustee will look at the purchase agreement to determine what your rights are to the property. If the purchase agreement created a security interest in the company assets, and if that security interest was "perfected" according to your local laws (such as recording it with the county or the secretary of state as may be appropriate in your jurisdiction) then you can rest assured that the trustee will let you have the assets. But if your security interest is not perfected, then the trustee has the right to disregard the purchase agreement and liquidate the assets for the benefit of the estate, treating you like an unsecured creditor, and could even attempt to recover any payments made to you within 3 months of the bankruptcy filing date. At the very least, a chapter 13 implies that the debtor has some income from which they intend to pay some of their debt, so if you file a claim in the case, you could get your pro rata share of the assets. It would behoove you to hire a competent bankruptcy attorney to recover as much as you can in this case.
Answered on Jan 08th, 2016 at 4:38 AM

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