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Creditor's Rights and Responsibilities

In a bankruptcy proceeding, the creditor has certain rights and responsibilities as specified in the Bankruptcy Code and the Uniform Commercial Code (UCC).

Creditor's Responsibilities

A creditor is required to do the following in a bankruptcy proceeding:

1. Review the initial bankruptcy notice and determine the size of any claim against the debtor.

2. If the claim is small and does not justify the assistance of counsel in the reorganization process, the creditor should file a claim and monitor subsequent activity.

3. Gather all documentation relating to the claim for possible transmittal to counsel with instructions for action in the case.

4. Notify the sales department of any restrictions on post-petition credit sales to the debtor in possession.

5. Determine whether any goods in transit or delivered immediately prior to the petition are subject to reclamation under the UCC.

6. Stop all goods in transit by notifying the common carrier delivering the goods. Stopping goods usually requires reference to counsel for further action.

7. Serve a reclamation demand upon the debtor for goods received immediately prior to bankruptcy. Reclamation usually requires reference to counsel for further action.

8. If the case is filed under Chapter 11, the creditor should review the file and the prospects for reorgani-zation to determine whether being appointed to the creditors' committee would help the reorganization process. To participate in the reorganization as a member of the creditors' committee, the creditor should contact the U.S. Trustee for the district in which the case is pending and volunteer for membership on the committee.

9. Determine the deadline for filing claims. In Chapter 7, 12, and 13 cases, the deadline is 90 days from the date first set for the 341 meeting. In Chapter 11 cases, the creditor should check the initial notice. If no deadline is set in the initial notice, the creditor should review the file periodically for deadlines subsequently set by the court.

Creditors Rights

Upon discovering a buyer is insolvent, a seller (creditor) has the following remedies available under section 546(c) of the Bankruptcy Code and section 2-702 of the Uniform Commercial Code (UCC):

1. If the seller discovers the buyer to be insolvent, the seller can refuse to deliver goods until the buyer pays for them.

2. If the goods are being held by a carrier, warehouse, or other third-party bailee, the seller can stop delivery of the goods until the buyer pays for them.

3. If the seller discovers that the buyer has received goods on credit while insolvent, the seller can reclaim the goods upon demand within ten days after they were received. However, if the buyer made a misrepresentation of solvency to the seller in writing within three months before delivery, the ten-day limitation does not apply.

See also Reclamation.

The Bankruptcy Reform Act of 1994 added section 546(g)*, which allows the buyer to return goods that the seller had shipped on credit terms before the start of a bankruptcy case (pre-petition), in exchange for an offset equal to the invoice price of the returned goods. To obtain relief under section 546(g)*, the following conditions must be met:

  • The seller must consent to the return and to reduce its pre-petition claim in an amount equal to the invoice value of the returned goods.
  • The buyer must move for bankruptcy court approval of the return of goods within 120 days of the start of the bankruptcy case.
  • The court must approve the buyer's return of goods after finding that the return is in the best interests of the bankruptcy estate.

A lender with a blanket security interest in the buyer's inventory likely would oppose a return of goods program, because it reduces its inventory collateral. As a remedy, inventory lien holders could demand that any Section 546(g)* return-of-goods program includes a provision for replacing inventory subject to the lender's security interest.

Source: "Manual of Credit and Commercial Laws," edited by Charles M. Tatelbaum and John K. Pearson, available at the NACM Bookstore.

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