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Chapter 9
Municipality Bankruptcy
The chapter of the Bankruptcy Code providing for reorganization of municipalities (which
includes cities and towns, as well as villages, counties, taxing districts, municipal
utilities, and school districts).
The first municipal bankruptcy legislation was enacted in 1934 during the Great
Depression. Pub. L. No. 251, 48 Stat. 798 (1934). Although Congress took care to draft
the legislation so as not to interfere with the sovereign powers of the states guaranteed
by the Tenth Amendment to the Constitution, the Supreme Court held the 1934 Act
unconstitutional as an improper interference with the sovereignty of the states. Ashton v.
Cameron County Water Improvement Dist. No. 1, 298 U.S. 513, 532 (1936). Congress
enacted a revised Municipal Bankruptcy Act in 1937, Pub. L. No. 302, 50 Stat. 653
(1937), which was upheld by the Supreme Court. United States v. Bekins, 304 U.S. 27,
54 (1938). The law has been amended several times since 1937. In the more than 60
years since Congress established a federal mechanism for the resolution of municipal
debts, there have been fewer than 500 municipal bankruptcy petitions filed. Although
chapter 9 cases are rare, a filing by a large municipality can— like the 1994 filing by
Orange County, California—involve many millions of dollars in municipal debt.
Purpose of Municipal Bankruptcy
The purpose of chapter 9 is to provide a financially-distressed municipality protection
from its creditors while it develops and negotiates a plan for adjusting its debts.
Reorganization of the debts of a municipality is typically accomplished either by
extending debt maturities, reducing the amount of principal or interest, or refinancing
the debt by obtaining a new loan.
Although similar to other chapters in some respects, chapter 9 is significantly different
in that there is no provision in the law for liquidation of the assets of the municipality and
distribution of the proceeds to creditors. Such a liquidation or dissolution would
undoubtedly violate the Tenth Amendment to the Constitution and the reservation to the
states of sovereignty over their internal affairs. Indeed, due to the severe limitations
placed upon the power of the bankruptcy court in chapter 9 cases (required by the Tenth
Amendment and the Supreme Court's decisions in cases upholding municipal
bankruptcy legislation), the bankruptcy court generally is not as active in managing a
municipal bankruptcy case as it is in corporate reorganizations under chapter 11. The
functions of the bankruptcy court in chapter 9 cases are generally limited to approving
the petition (if the debtor is eligible), confirming a plan of debt adjustment, and ensuring
implementation of the plan. As a practical matter, however, the municipality may
consent to have the court exercise jurisdiction in many of the traditional areas of court
oversight in bankruptcy, in order to obtain the protection of court orders and eliminate
the need for multiple forums to decide issues.
Eligibility
Only a "municipality" may file for relief under chapter 9. 11 U.S.C. § 109(c). The term
"municipality" is defined in the Bankruptcy Code as a "political subdivision or public
agency or instrumentality of a State." 11 U.S.C. § 101(40). The definition is broad
enough to include cities, counties, townships, school districts, and public improvement
districts. It also includes revenue-producing bodies that provide services which are paid
for by users rather than by general taxes, such as bridge authorities, highway
authorities, and gas authorities.
Section 109(c) of the Bankruptcy Codes sets forth four additional eligibility requirements
for chapter 9:
Commencement of the Case
Municipalities must voluntarily seek protection under the Bankruptcy Code. 11 U.S.C. §§
303, 901(a). They may file a petition only under chapter 9. A case under chapter 9
concerning an unincorporated tax or special assessment district that does not have its
own officials is commenced by the filing of a voluntary "petition under this chapter by
such district's governing authority or the board or body having authority to levy taxes or
assessments to meet the obligations of such district." 11 U.S.C. § 921(a).
A municipal debtor must file a list of creditors. 11 U.S.C. § 924. Normally, the debtor
files the list of creditors with the petition. However, the bankruptcy court has discretion to
fix a different time if the debtor is unable to prepare the list of creditors in the form and
with the detail required by the Bankruptcy Rules at the time of filing. Fed. R. Bankr. P.
1007.
Assignment of Case to a Bankruptcy Judge
One significant difference between chapter 9 cases and cases filed under other
chapters is that the clerk of court does not automatically assign the case to a particular
judge. "The chief judge of the court of appeals for the circuit embracing the district in
which the case is commenced [designates] the bankruptcy judge to conduct the case."
11 U.S.C. § 921(b). This provision was designed to remove politics from the issue of
which judge will preside over the chapter 9 case of a major municipality and to ensure
that a municipal case will be handled by a judge who has the time and capability of
doing so.
Notice of Case/ Objections/ Order for Relief
The Bankruptcy Code requires that notice be given of the commencement of the case
and the order for relief. 11 U.S.C. § 923. The Bankruptcy Rules provide that the clerk, or
such other person as the court may direct, is to give notice. Fed. R. Bankr. P. 2002(f).
The notice must also be published "at least once a week for three successive weeks in
at least one newspaper of general circulation published within the district in which the
case is commenced, and in such other newspaper having a general circulation among
bond dealers and bondholders as the court designates." 11 U.S.C. § 923. The court
typically enters an order designating who is to give and receive notice by mail and
identifying the newspapers in which the additional notice is to be published. Fed. R.
Bankr. P. 9007, 9008.
The Bankruptcy Code permits objections to the petition. 11 U.S.C. § 921(c). Typically,
objections concern issues like whether negotiations have been conducted in good faith,
whether the state has authorized the municipality to file, and whether the petition was
filed in good faith. If an objection to the petition is filed, the court must hold a hearing on
the objection. Id. The court may dismiss a petition if it determines that the debtor did not
file the petition in good faith or that the petition does not meet the requirements of title
11. Id.
If the petition is not dismissed upon an objection, the Bankruptcy Code requires the
court to order relief, allowing the case to proceed under chapter 9. 11 U.S.C. § 921(d).
Automatic Stay
The automatic stay of section 362 of the Bankruptcy Code is applicable in chapter 9
cases. 11 U.S.C. §§ 362(a), 901(a). The stay operates to stop all collection actions
against the debtor and its property upon the filing of the petition. Additional automatic
stay provisions are applicable in chapter 9 that prohibit actions against officers and
inhabitants of the debtor if the action seeks to enforce a claim against the debtor. 11 U.
S.C. § 922(a). Thus, the stay prohibits a creditor from bringing a mandamus action
against an officer of a municipality on account of a prepetition debt. It also prohibits a
creditor from bringing an action against an inhabitant of the debtor to enforce a lien on
or arising out of taxes or assessments owed to the debtor.
Section 922(d) of title 11 limits the applicability of the stay. Under that section, a chapter
9 petition does not operate to stay application of pledged special revenues to payment
of indebtedness secured by such revenues. Thus, an indenture trustee or other paying
agent may apply pledged funds to payments coming due or distribute the pledged
funds to bondholders without violating the automatic stay.
Proofs of Claim
In a chapter 9 case, the court fixes the time within which proofs of claim or interest may
be filed. Fed. R. Bankr. P. 3003(c)(3). Many creditors may not be required to file a proof
of claim in a chapter 9 case. For example, a proof of claim is deemed filed if it appears
on the list of creditors filed by the debtor, unless the debt is listed as disputed,
contingent, or unliquidated. 11 U.S.C. § 925. Thus, a creditor must file a proof of claim if
the creditor's claim appears on the list of creditors as disputed, contingent, or
unliquidated.
Court's Limited Power
Sections 903 and 904 of the Bankruptcy Code are designed to recognize the court's
limited power over operations of the debtor.
Section 904 limits the power of the bankruptcy court to "interfere with – (1) any of the
political or governmental powers of the debtor; (2) any of the property or revenues of the
debtor; or (3) the debtor's use or enjoyment of any income-producing property" unless
the debtor consents or the plan so provides. The provision makes it clear that the
debtor's day-to-day activities are not subject to court approval and that the debtor may
borrow money without court authority. In addition, the court cannot appoint a trustee
(except for limited purposes specified in 11 U.S.C. § 926(a)) and cannot convert the
case to a liquidation proceeding.
The court also cannot interfere with the operations of the debtor or with the debtor's use
of its property and revenues. This is due, at least in part, to the fact that in a chapter 9
case, there is no property of the estate and thus no estate to administer. 11 U.S.C. § 902
(1). Moreover, a chapter 9 debtor may employ professionals without court approval, and
the only court review of fees is in the context of plan confirmation, when the court
determines the reasonableness of the fees.
The restrictions imposed by 11 U.S.C. § 904 are necessary to ensure the
constitutionality of chapter 9 and to avoid the possibility that the court might substitute its
control over the political or governmental affairs or property of the debtor for that of the
state and the elected officials of the municipality.
Similarly, 11 U.S.C. § 903 states that "chapter [9] does not limit or impair the power of a
State to control, by legislation or otherwise, a municipality of or in such State in the
exercise of the political or governmental powers of the municipality, including
expenditures for such exercise," with two exceptions – a state law prescribing a method
of composition of municipal debt does not bind any non-consenting creditor, nor does
any judgment entered under such state law bind a nonconsenting creditor.
Role of the U.S. trustee/bankruptcy administrator
In a chapter 9 case, the role of the U.S. trustee (or the bankruptcy administrator in North
Carolina or Alabama) (1) is typically more limited than in chapter 11 cases. Although the
U.S. trustee appoints a creditors' committee, the U.S. trustee does not examine the
debtor at a meeting of creditors (there is no meeting of creditors), does not have the
authority to move for appointment of a trustee or examiner or for conversion of the case,
and does not supervise the administration of the case. Further, the U.S. trustee does
not monitor the financial operations of the debtor or review the fees of professionals
retained in the case.
Role of Creditors
The role of creditors is more limited in chapter 9 than in other cases. There is no first
meeting of creditors, and creditors may not propose competing plans. If certain
requirements are met, the debtor's plan is binding on dissenting creditors. The chapter
9 debtor has more freedom to operate without court-imposed restrictions.
In each chapter 9 case, however, there is a creditors' committee that has powers and
duties that are very similar to those of a committee in a chapter 11 case. These powers
and duties include selecting and authorizing the employment of one or more attorneys,
accountants, or other agents to represent the committee; consulting with the debtor
concerning administration of the case; investigating the acts, conduct, assets, liabilities,
and financial condition of the debtor; participating in the formulation of a plan; and
performing such other services as are in the interest of those represented. 11 U.S.C. §§
901(a), 1103.
Intervention/Right of Others to be Heard
When cities or counties file for relief under chapter 9, there may be a great deal of
interest in the case from entities wanting to appear and be heard. The Bankruptcy Rules
provide that "[t]he Secretary of the Treasury of the United States may, or if requested by
the court shall, intervene in a chapter 9 case." Fed. R. Bankr. P. 2018(c). Further, "[r]
epresentatives of the state in which the debtor is located may intervene in a chapter 9
case." Id. In addition, the Bankruptcy Code permits the Securities and Exchange
Commission to appear and be heard on any issue and gives parties in interest the right
to appear and be heard on any issue in a case. 11 U.S.C. §§ 901(a), 1109. Parties in
interest include municipal employees, local residents, non-resident owners of real
property, special tax payers, securities firms, and local banks.
Powers of the Debtor
Due to statutory limitations placed upon the power of the court in a municipal debt
adjustment proceeding, the court is far less involved in the conduct of a municipal
bankruptcy case (and in the operation of the municipal entity) while the debtor's financial
affairs are undergoing reorganization. The municipal debtor has broad powers to use
its property, raise taxes, and make expenditures as it sees fit. It is also permitted to
adjust burdensome non-debt contractual relationships under the power to reject
executory contracts and unexpired leases, subject to court approval, and it has the
same avoiding powers as other debtors. Municipalities may also reject collective
bargaining agreements and retiree benefit plans without going through the usual
procedures required in chapter 11 cases.
A municipality has authority to borrow money during a chapter 9 case as an
administrative expense. 11 U.S.C. §§ 364, 901(a). This ability is important to the survival
of a municipality that has exhausted all other resources. A chapter 9 municipality has
the same power to obtain credit as it does outside of bankruptcy. The court does not
have supervisory authority over the amount of debt the municipality incurs in its
operation. The municipality may employ professionals without court approval, and the
professional fees incurred are reviewed only within the context of plan confirmation.
Dismissal
As previously noted, the court may dismiss a chapter 9 petition, after notice and a
hearing, if it concludes the debtor did not file the petition in good faith or if the petition
does not meet the requirements of chapter 9. 11 U.S.C. § 921(c). The court may also
dismiss the petition for cause, such as for lack of prosecution, unreasonable delay by
the debtor that is prejudicial to creditors, failure to propose or confirm a plan within the
time fixed by the court, material default by the debtor under a confirmed plan, or
termination of a confirmed plan by reason of the occurrence of a condition specified in
the plan. 11 U.S.C. § 930.
Treatment of Bondholders and Other Lenders
Different types of bonds receive different treatment in municipal bankruptcy cases.
General obligation bonds are treated as general debt in the chapter 9 case. The
municipality is not required to make payments of either principal or interest on account
of such bonds during the case. The obligations created by general obligation bonds are
subject to negotiation and possible restructuring under the plan of adjustment.
Special revenue bonds, by contrast, will continue to be secured and serviced during the
pendency of the chapter 9 case through continuing application and payment of ongoing
special revenues. 11 U.S.C. § 928. Holders of special revenue bonds can expect to
receive payment on such bonds during the chapter 9 case if special revenues are
available. The application of pledged special revenues to indebtedness secured by
such revenues is not stayed as long as the pledge is consistent with 11 U.S.C. § 928 [§
922(d) erroneously refers to § 927 rather than § 928], which insures that a lien of
special revenues is subordinate to the operating expenses of the project or system
from which the revenues are derived. 11 U.S.C. § 922(d).
Bondholders generally do not have to worry about the threat of preference liability with
respect to any prepetition payments on account of bonds or notes, whether special
revenue or general obligations. Any transfer of the municipal debtor's property to a
noteholder or bondholder on account of a note or bond cannot be avoided as a
preference, i.e., as an unauthorized payment to a creditor made while the debtor was
insolvent. 11 U.S.C. § 926(b).
Plan for Adjustment of Debts
The Bankruptcy Code provides that the debtor must file a plan. 11 U.S.C. § 941. The
plan must be filed with the petition or at such later time as the court fixes. There is no
provision in chapter 9 allowing creditors or other parties in interest to file a plan. This
limitation is required by the Supreme Court's pronouncements in Ashton, 298 U.S. at
528, and Bekins, 304 U.S. at 51, which interpreted the Tenth Amendment as requiring
that a municipality be left in control of its governmental affairs during a chapter 9 case.
Neither creditors nor the court may control the affairs of a municipality indirectly through
the mechanism of proposing a plan of adjustment of the municipality's debts that would
in effect determine the municipality's future tax and spending decisions.
Confirmation Standards
The standards for plan confirmation in chapter 9 cases are a combination of the
statutory requirements of 11 U.S.C. § 943(b) and those portions of 11 U.S.C. § 1129
(the chapter 11 confirmation standards) made applicable by 11 U.S.C. § 901(a). Section
943(b) lists seven general conditions required for confirmation of a plan. The court must
confirm a plan if the following conditions are met:
11 U.S.C. § 943(b).
Section 943(b)(1) requires as a condition for confirmation that the plan comply with the
provisions of the Bankruptcy Code made applicable by sections 103(e) and 901(a) of
the Bankruptcy Code. The most important of these for purposes of confirming a plan are
those provisions of 11 U.S.C. § 1129 (i.e., § 1129(a)(2), (a)(3), (a)(6), (a)(8), (a)(10)) that
are made applicable by 11 U.S.C. § 901(a). Section 1129(a)(8) requires, as a condition
to confirmation, that the plan has been accepted by each class of claims or interests
impaired under the plan. Therefore, if the plan proposes treatment for a class of
creditors such that the class is impaired (i.e., the creditor's legal, equitable, or
contractual rights are altered), then that class's acceptance is required. If the class is
not impaired, then acceptance by that class is not required as a condition to
confirmation. Under 11 U.S.C. § 1129(a)(10), the court may confirm the plan only if,
should any class of claims be impaired under the plan, at least one impaired class has
accepted the plan. If only one impaired class of creditors consents to the plan, plan
confirmation is still possible under the "cram down" provisions of 11 U.S.C. § 1129(b).
Under "cram down," if all other requirements are met except the § 1129(a)(8)
requirement that all classes either be unimpaired or have accepted the plan, then the
plan is confirmable if it does not discriminate unfairly and is fair and equitable.
The requirement that the plan be in the "best interests of creditors" means something
different under chapter 9 than under chapter 11. Under chapter 11, a plan is said to be
in the "best interest of creditors" if creditors would receive as much under the plan as
they would if the debtor were liquidated. 11 U.S.C. § 1129(a)(7)(A)(ii). Obviously, a
different interpretation is needed in chapter 9 cases because a municipality's assets
cannot be liquidated to pay creditors. In the chapter 9 context, the "best interests of
creditors" test has generally been interpreted to mean that the plan must be better than
other alternatives available to the creditors. See 6 COLLIER ON BANKRUPTCY § 943.03
[7] (15th ed. rev. 2005). Generally speaking, the alternative to chapter 9 is dismissal of
the case, permitting every creditor to fend for itself. An interpretation of the " best
interests of creditors" test to require that the municipality devote all resources available
to the repayment of creditors would appear to exceed the standard. The courts generally
apply the test to require a reasonable effort by the municipal debtor that is a better
alternative for its creditors than dismissal of the case. Id.
Parties in interest may object to confirmation, including creditors whose claims are
affected by the plan, an organization of employees of the debtor, and other tax payers,
as well as the Securities and Exchange Commission. 11 U.S.C. §§ 901(a), 943, 1109,
1128(b).
Discharge
A municipal debtor receives a discharge in a chapter 9 case after: (1) confirmation of the
plan; (2) deposit by the debtor of any consideration to be distributed under the plan with
the disbursing agent appointed by the court; and (3) a determination by the court that
securities deposited with the disbursing agent will constitute valid legal obligations of
the debtor and that any provision made to pay or secure payment of such obligations is
valid. 11 U.S.C. § 944(b). Thus, the discharge is conditioned not only upon confirmation,
but also upon deposit of the consideration to be distributed under the plan and a court
determination of the validity of securities to be issued.
There are two exceptions to the discharge in chapter 9 cases. The first is for any debt
excepted from discharge by the plan or order confirming the plan. The second is for a
debt owed to an entity that, before confirmation of the plan, had neither notice nor actual
knowledge of the case. 11 U.S.C. § 944(c).
At any time within 180 days after entry of the confirmation order, the court may, after
notice and a hearing, revoke the order of confirmation if the order was procured by fraud.
11 U.S.C. §§ 901(a), 1144.
________________________________________
NOTES
1. In North Carolina and Alabama, bankruptcy administrators perform similar functions
that United States trustees perform in the remaining forty-eight states. The bankruptcy
administrator program is administered by the Administrative Office of the United States
Courts, while the United States trustee program is administered by the Department of
Justice. For purposes of this publication, references to United States trustees are also
applicable to bankruptcy administrators.
The chapter of the Bankruptcy Code providing for reorganization of municipalities (which
includes cities and towns, as well as villages, counties, taxing districts, municipal
utilities, and school districts).
- a. Purpose of Municipality Bankruptcy
b. Eligibility
c. Commencement of the Case
d. Assignment of Case to a Bankruptcy Judge
e. Notice of Case/Objections/Order for Relief
f. Automatic Stay
g. Proofs of Claim
h. Court's Limited Power
i. Role of the U.S. Trustee/Bankruptcy Administrator
j. Role of Creditors
k. Intervention/Right of Others to be Heard
l. Powers of the Debtor
m. Dismissal
n. Treatment of Bondholders and Other Lenders
o. Plan for Adjustment of Debts
p. Confirmation Standards
q. Discharge
The first municipal bankruptcy legislation was enacted in 1934 during the Great
Depression. Pub. L. No. 251, 48 Stat. 798 (1934). Although Congress took care to draft
the legislation so as not to interfere with the sovereign powers of the states guaranteed
by the Tenth Amendment to the Constitution, the Supreme Court held the 1934 Act
unconstitutional as an improper interference with the sovereignty of the states. Ashton v.
Cameron County Water Improvement Dist. No. 1, 298 U.S. 513, 532 (1936). Congress
enacted a revised Municipal Bankruptcy Act in 1937, Pub. L. No. 302, 50 Stat. 653
(1937), which was upheld by the Supreme Court. United States v. Bekins, 304 U.S. 27,
54 (1938). The law has been amended several times since 1937. In the more than 60
years since Congress established a federal mechanism for the resolution of municipal
debts, there have been fewer than 500 municipal bankruptcy petitions filed. Although
chapter 9 cases are rare, a filing by a large municipality can— like the 1994 filing by
Orange County, California—involve many millions of dollars in municipal debt.
Purpose of Municipal Bankruptcy
The purpose of chapter 9 is to provide a financially-distressed municipality protection
from its creditors while it develops and negotiates a plan for adjusting its debts.
Reorganization of the debts of a municipality is typically accomplished either by
extending debt maturities, reducing the amount of principal or interest, or refinancing
the debt by obtaining a new loan.
Although similar to other chapters in some respects, chapter 9 is significantly different
in that there is no provision in the law for liquidation of the assets of the municipality and
distribution of the proceeds to creditors. Such a liquidation or dissolution would
undoubtedly violate the Tenth Amendment to the Constitution and the reservation to the
states of sovereignty over their internal affairs. Indeed, due to the severe limitations
placed upon the power of the bankruptcy court in chapter 9 cases (required by the Tenth
Amendment and the Supreme Court's decisions in cases upholding municipal
bankruptcy legislation), the bankruptcy court generally is not as active in managing a
municipal bankruptcy case as it is in corporate reorganizations under chapter 11. The
functions of the bankruptcy court in chapter 9 cases are generally limited to approving
the petition (if the debtor is eligible), confirming a plan of debt adjustment, and ensuring
implementation of the plan. As a practical matter, however, the municipality may
consent to have the court exercise jurisdiction in many of the traditional areas of court
oversight in bankruptcy, in order to obtain the protection of court orders and eliminate
the need for multiple forums to decide issues.
Eligibility
Only a "municipality" may file for relief under chapter 9. 11 U.S.C. § 109(c). The term
"municipality" is defined in the Bankruptcy Code as a "political subdivision or public
agency or instrumentality of a State." 11 U.S.C. § 101(40). The definition is broad
enough to include cities, counties, townships, school districts, and public improvement
districts. It also includes revenue-producing bodies that provide services which are paid
for by users rather than by general taxes, such as bridge authorities, highway
authorities, and gas authorities.
Section 109(c) of the Bankruptcy Codes sets forth four additional eligibility requirements
for chapter 9:
- the municipality must be specifically authorized to be a debtor by State law or by
a governmental officer or organization empowered by State law to authorize the
municipality to be a debtor; - the municipality must be insolvent, as defined in 11 U.S.C. § 101(32)(C);
- the municipality must desire to effect a plan to adjust its debts; and
- the municipality must either:
- obtain the agreement of creditors holding at least a majority in amount of
the claims of each class that the debtor intends to impair under a plan in
a case under chapter 9; - negotiate in good faith with creditors and fail to obtain the agreement of
creditors holding at least a majority in amount of the claims of each class
that the debtor intends to impair under a plan; - be unable to negotiate with creditors because such negotiation is
impracticable; or - reasonably believe that a creditor may attempt to obtain a preference
Commencement of the Case
Municipalities must voluntarily seek protection under the Bankruptcy Code. 11 U.S.C. §§
303, 901(a). They may file a petition only under chapter 9. A case under chapter 9
concerning an unincorporated tax or special assessment district that does not have its
own officials is commenced by the filing of a voluntary "petition under this chapter by
such district's governing authority or the board or body having authority to levy taxes or
assessments to meet the obligations of such district." 11 U.S.C. § 921(a).
A municipal debtor must file a list of creditors. 11 U.S.C. § 924. Normally, the debtor
files the list of creditors with the petition. However, the bankruptcy court has discretion to
fix a different time if the debtor is unable to prepare the list of creditors in the form and
with the detail required by the Bankruptcy Rules at the time of filing. Fed. R. Bankr. P.
1007.
Assignment of Case to a Bankruptcy Judge
One significant difference between chapter 9 cases and cases filed under other
chapters is that the clerk of court does not automatically assign the case to a particular
judge. "The chief judge of the court of appeals for the circuit embracing the district in
which the case is commenced [designates] the bankruptcy judge to conduct the case."
11 U.S.C. § 921(b). This provision was designed to remove politics from the issue of
which judge will preside over the chapter 9 case of a major municipality and to ensure
that a municipal case will be handled by a judge who has the time and capability of
doing so.
Notice of Case/ Objections/ Order for Relief
The Bankruptcy Code requires that notice be given of the commencement of the case
and the order for relief. 11 U.S.C. § 923. The Bankruptcy Rules provide that the clerk, or
such other person as the court may direct, is to give notice. Fed. R. Bankr. P. 2002(f).
The notice must also be published "at least once a week for three successive weeks in
at least one newspaper of general circulation published within the district in which the
case is commenced, and in such other newspaper having a general circulation among
bond dealers and bondholders as the court designates." 11 U.S.C. § 923. The court
typically enters an order designating who is to give and receive notice by mail and
identifying the newspapers in which the additional notice is to be published. Fed. R.
Bankr. P. 9007, 9008.
The Bankruptcy Code permits objections to the petition. 11 U.S.C. § 921(c). Typically,
objections concern issues like whether negotiations have been conducted in good faith,
whether the state has authorized the municipality to file, and whether the petition was
filed in good faith. If an objection to the petition is filed, the court must hold a hearing on
the objection. Id. The court may dismiss a petition if it determines that the debtor did not
file the petition in good faith or that the petition does not meet the requirements of title
11. Id.
If the petition is not dismissed upon an objection, the Bankruptcy Code requires the
court to order relief, allowing the case to proceed under chapter 9. 11 U.S.C. § 921(d).
Automatic Stay
The automatic stay of section 362 of the Bankruptcy Code is applicable in chapter 9
cases. 11 U.S.C. §§ 362(a), 901(a). The stay operates to stop all collection actions
against the debtor and its property upon the filing of the petition. Additional automatic
stay provisions are applicable in chapter 9 that prohibit actions against officers and
inhabitants of the debtor if the action seeks to enforce a claim against the debtor. 11 U.
S.C. § 922(a). Thus, the stay prohibits a creditor from bringing a mandamus action
against an officer of a municipality on account of a prepetition debt. It also prohibits a
creditor from bringing an action against an inhabitant of the debtor to enforce a lien on
or arising out of taxes or assessments owed to the debtor.
Section 922(d) of title 11 limits the applicability of the stay. Under that section, a chapter
9 petition does not operate to stay application of pledged special revenues to payment
of indebtedness secured by such revenues. Thus, an indenture trustee or other paying
agent may apply pledged funds to payments coming due or distribute the pledged
funds to bondholders without violating the automatic stay.
Proofs of Claim
In a chapter 9 case, the court fixes the time within which proofs of claim or interest may
be filed. Fed. R. Bankr. P. 3003(c)(3). Many creditors may not be required to file a proof
of claim in a chapter 9 case. For example, a proof of claim is deemed filed if it appears
on the list of creditors filed by the debtor, unless the debt is listed as disputed,
contingent, or unliquidated. 11 U.S.C. § 925. Thus, a creditor must file a proof of claim if
the creditor's claim appears on the list of creditors as disputed, contingent, or
unliquidated.
Court's Limited Power
Sections 903 and 904 of the Bankruptcy Code are designed to recognize the court's
limited power over operations of the debtor.
Section 904 limits the power of the bankruptcy court to "interfere with – (1) any of the
political or governmental powers of the debtor; (2) any of the property or revenues of the
debtor; or (3) the debtor's use or enjoyment of any income-producing property" unless
the debtor consents or the plan so provides. The provision makes it clear that the
debtor's day-to-day activities are not subject to court approval and that the debtor may
borrow money without court authority. In addition, the court cannot appoint a trustee
(except for limited purposes specified in 11 U.S.C. § 926(a)) and cannot convert the
case to a liquidation proceeding.
The court also cannot interfere with the operations of the debtor or with the debtor's use
of its property and revenues. This is due, at least in part, to the fact that in a chapter 9
case, there is no property of the estate and thus no estate to administer. 11 U.S.C. § 902
(1). Moreover, a chapter 9 debtor may employ professionals without court approval, and
the only court review of fees is in the context of plan confirmation, when the court
determines the reasonableness of the fees.
The restrictions imposed by 11 U.S.C. § 904 are necessary to ensure the
constitutionality of chapter 9 and to avoid the possibility that the court might substitute its
control over the political or governmental affairs or property of the debtor for that of the
state and the elected officials of the municipality.
Similarly, 11 U.S.C. § 903 states that "chapter [9] does not limit or impair the power of a
State to control, by legislation or otherwise, a municipality of or in such State in the
exercise of the political or governmental powers of the municipality, including
expenditures for such exercise," with two exceptions – a state law prescribing a method
of composition of municipal debt does not bind any non-consenting creditor, nor does
any judgment entered under such state law bind a nonconsenting creditor.
Role of the U.S. trustee/bankruptcy administrator
In a chapter 9 case, the role of the U.S. trustee (or the bankruptcy administrator in North
Carolina or Alabama) (1) is typically more limited than in chapter 11 cases. Although the
U.S. trustee appoints a creditors' committee, the U.S. trustee does not examine the
debtor at a meeting of creditors (there is no meeting of creditors), does not have the
authority to move for appointment of a trustee or examiner or for conversion of the case,
and does not supervise the administration of the case. Further, the U.S. trustee does
not monitor the financial operations of the debtor or review the fees of professionals
retained in the case.
Role of Creditors
The role of creditors is more limited in chapter 9 than in other cases. There is no first
meeting of creditors, and creditors may not propose competing plans. If certain
requirements are met, the debtor's plan is binding on dissenting creditors. The chapter
9 debtor has more freedom to operate without court-imposed restrictions.
In each chapter 9 case, however, there is a creditors' committee that has powers and
duties that are very similar to those of a committee in a chapter 11 case. These powers
and duties include selecting and authorizing the employment of one or more attorneys,
accountants, or other agents to represent the committee; consulting with the debtor
concerning administration of the case; investigating the acts, conduct, assets, liabilities,
and financial condition of the debtor; participating in the formulation of a plan; and
performing such other services as are in the interest of those represented. 11 U.S.C. §§
901(a), 1103.
Intervention/Right of Others to be Heard
When cities or counties file for relief under chapter 9, there may be a great deal of
interest in the case from entities wanting to appear and be heard. The Bankruptcy Rules
provide that "[t]he Secretary of the Treasury of the United States may, or if requested by
the court shall, intervene in a chapter 9 case." Fed. R. Bankr. P. 2018(c). Further, "[r]
epresentatives of the state in which the debtor is located may intervene in a chapter 9
case." Id. In addition, the Bankruptcy Code permits the Securities and Exchange
Commission to appear and be heard on any issue and gives parties in interest the right
to appear and be heard on any issue in a case. 11 U.S.C. §§ 901(a), 1109. Parties in
interest include municipal employees, local residents, non-resident owners of real
property, special tax payers, securities firms, and local banks.
Powers of the Debtor
Due to statutory limitations placed upon the power of the court in a municipal debt
adjustment proceeding, the court is far less involved in the conduct of a municipal
bankruptcy case (and in the operation of the municipal entity) while the debtor's financial
affairs are undergoing reorganization. The municipal debtor has broad powers to use
its property, raise taxes, and make expenditures as it sees fit. It is also permitted to
adjust burdensome non-debt contractual relationships under the power to reject
executory contracts and unexpired leases, subject to court approval, and it has the
same avoiding powers as other debtors. Municipalities may also reject collective
bargaining agreements and retiree benefit plans without going through the usual
procedures required in chapter 11 cases.
A municipality has authority to borrow money during a chapter 9 case as an
administrative expense. 11 U.S.C. §§ 364, 901(a). This ability is important to the survival
of a municipality that has exhausted all other resources. A chapter 9 municipality has
the same power to obtain credit as it does outside of bankruptcy. The court does not
have supervisory authority over the amount of debt the municipality incurs in its
operation. The municipality may employ professionals without court approval, and the
professional fees incurred are reviewed only within the context of plan confirmation.
Dismissal
As previously noted, the court may dismiss a chapter 9 petition, after notice and a
hearing, if it concludes the debtor did not file the petition in good faith or if the petition
does not meet the requirements of chapter 9. 11 U.S.C. § 921(c). The court may also
dismiss the petition for cause, such as for lack of prosecution, unreasonable delay by
the debtor that is prejudicial to creditors, failure to propose or confirm a plan within the
time fixed by the court, material default by the debtor under a confirmed plan, or
termination of a confirmed plan by reason of the occurrence of a condition specified in
the plan. 11 U.S.C. § 930.
Treatment of Bondholders and Other Lenders
Different types of bonds receive different treatment in municipal bankruptcy cases.
General obligation bonds are treated as general debt in the chapter 9 case. The
municipality is not required to make payments of either principal or interest on account
of such bonds during the case. The obligations created by general obligation bonds are
subject to negotiation and possible restructuring under the plan of adjustment.
Special revenue bonds, by contrast, will continue to be secured and serviced during the
pendency of the chapter 9 case through continuing application and payment of ongoing
special revenues. 11 U.S.C. § 928. Holders of special revenue bonds can expect to
receive payment on such bonds during the chapter 9 case if special revenues are
available. The application of pledged special revenues to indebtedness secured by
such revenues is not stayed as long as the pledge is consistent with 11 U.S.C. § 928 [§
922(d) erroneously refers to § 927 rather than § 928], which insures that a lien of
special revenues is subordinate to the operating expenses of the project or system
from which the revenues are derived. 11 U.S.C. § 922(d).
Bondholders generally do not have to worry about the threat of preference liability with
respect to any prepetition payments on account of bonds or notes, whether special
revenue or general obligations. Any transfer of the municipal debtor's property to a
noteholder or bondholder on account of a note or bond cannot be avoided as a
preference, i.e., as an unauthorized payment to a creditor made while the debtor was
insolvent. 11 U.S.C. § 926(b).
Plan for Adjustment of Debts
The Bankruptcy Code provides that the debtor must file a plan. 11 U.S.C. § 941. The
plan must be filed with the petition or at such later time as the court fixes. There is no
provision in chapter 9 allowing creditors or other parties in interest to file a plan. This
limitation is required by the Supreme Court's pronouncements in Ashton, 298 U.S. at
528, and Bekins, 304 U.S. at 51, which interpreted the Tenth Amendment as requiring
that a municipality be left in control of its governmental affairs during a chapter 9 case.
Neither creditors nor the court may control the affairs of a municipality indirectly through
the mechanism of proposing a plan of adjustment of the municipality's debts that would
in effect determine the municipality's future tax and spending decisions.
Confirmation Standards
The standards for plan confirmation in chapter 9 cases are a combination of the
statutory requirements of 11 U.S.C. § 943(b) and those portions of 11 U.S.C. § 1129
(the chapter 11 confirmation standards) made applicable by 11 U.S.C. § 901(a). Section
943(b) lists seven general conditions required for confirmation of a plan. The court must
confirm a plan if the following conditions are met:
- the plan complies with the provisions of title 11 made applicable by sections 103
(e) and 901; - the plan complies with the provisions of chapter 9;
- all amounts to be paid by the debtor or by any person for services or expenses in
the case or incident to the plan have been fully disclosed and are reasonable; - the debtor is not prohibited by law from taking any action necessary to carry out
the plan; - except to the extent that the holder of a particular claim has agreed to a different
treatment of such claim, the plan provides that on the effective date of the plan,
each holder of a claim of a kind specified in section 507(a)(1) will receive on
account of such claim cash equal to the allowed amount of such claim; - any regulatory or electoral approval necessary under applicable nonbankruptcy
law in order to carry out any provision of the plan has been obtained, or such
provision is expressly conditioned on such approval; and - the plan is in the best interests of creditors and is feasible.
11 U.S.C. § 943(b).
Section 943(b)(1) requires as a condition for confirmation that the plan comply with the
provisions of the Bankruptcy Code made applicable by sections 103(e) and 901(a) of
the Bankruptcy Code. The most important of these for purposes of confirming a plan are
those provisions of 11 U.S.C. § 1129 (i.e., § 1129(a)(2), (a)(3), (a)(6), (a)(8), (a)(10)) that
are made applicable by 11 U.S.C. § 901(a). Section 1129(a)(8) requires, as a condition
to confirmation, that the plan has been accepted by each class of claims or interests
impaired under the plan. Therefore, if the plan proposes treatment for a class of
creditors such that the class is impaired (i.e., the creditor's legal, equitable, or
contractual rights are altered), then that class's acceptance is required. If the class is
not impaired, then acceptance by that class is not required as a condition to
confirmation. Under 11 U.S.C. § 1129(a)(10), the court may confirm the plan only if,
should any class of claims be impaired under the plan, at least one impaired class has
accepted the plan. If only one impaired class of creditors consents to the plan, plan
confirmation is still possible under the "cram down" provisions of 11 U.S.C. § 1129(b).
Under "cram down," if all other requirements are met except the § 1129(a)(8)
requirement that all classes either be unimpaired or have accepted the plan, then the
plan is confirmable if it does not discriminate unfairly and is fair and equitable.
The requirement that the plan be in the "best interests of creditors" means something
different under chapter 9 than under chapter 11. Under chapter 11, a plan is said to be
in the "best interest of creditors" if creditors would receive as much under the plan as
they would if the debtor were liquidated. 11 U.S.C. § 1129(a)(7)(A)(ii). Obviously, a
different interpretation is needed in chapter 9 cases because a municipality's assets
cannot be liquidated to pay creditors. In the chapter 9 context, the "best interests of
creditors" test has generally been interpreted to mean that the plan must be better than
other alternatives available to the creditors. See 6 COLLIER ON BANKRUPTCY § 943.03
[7] (15th ed. rev. 2005). Generally speaking, the alternative to chapter 9 is dismissal of
the case, permitting every creditor to fend for itself. An interpretation of the " best
interests of creditors" test to require that the municipality devote all resources available
to the repayment of creditors would appear to exceed the standard. The courts generally
apply the test to require a reasonable effort by the municipal debtor that is a better
alternative for its creditors than dismissal of the case. Id.
Parties in interest may object to confirmation, including creditors whose claims are
affected by the plan, an organization of employees of the debtor, and other tax payers,
as well as the Securities and Exchange Commission. 11 U.S.C. §§ 901(a), 943, 1109,
1128(b).
Discharge
A municipal debtor receives a discharge in a chapter 9 case after: (1) confirmation of the
plan; (2) deposit by the debtor of any consideration to be distributed under the plan with
the disbursing agent appointed by the court; and (3) a determination by the court that
securities deposited with the disbursing agent will constitute valid legal obligations of
the debtor and that any provision made to pay or secure payment of such obligations is
valid. 11 U.S.C. § 944(b). Thus, the discharge is conditioned not only upon confirmation,
but also upon deposit of the consideration to be distributed under the plan and a court
determination of the validity of securities to be issued.
There are two exceptions to the discharge in chapter 9 cases. The first is for any debt
excepted from discharge by the plan or order confirming the plan. The second is for a
debt owed to an entity that, before confirmation of the plan, had neither notice nor actual
knowledge of the case. 11 U.S.C. § 944(c).
At any time within 180 days after entry of the confirmation order, the court may, after
notice and a hearing, revoke the order of confirmation if the order was procured by fraud.
11 U.S.C. §§ 901(a), 1144.
________________________________________
NOTES
1. In North Carolina and Alabama, bankruptcy administrators perform similar functions
that United States trustees perform in the remaining forty-eight states. The bankruptcy
administrator program is administered by the Administrative Office of the United States
Courts, while the United States trustee program is administered by the Department of
Justice. For purposes of this publication, references to United States trustees are also
applicable to bankruptcy administrators.
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