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Questions and clarifications about the Chapter 11 process (not Van's specific)

GrahamF

Well Known Member
Here's a thread to pose questions and seek clarifications about how Chapter 11 actually works.

I have two questions to start us off:

1. If I think I'm a creditor but my name doesn't appear on the list, do I have to register than claim with the court? If so, how? Or is telling the company enough?

2. How does the voting process work? When the court puts the deal to the vote with creditors, is it one vote each? Or is your say in the matter proportional to how much you're owed?
 
just my 2 cents for a reference to your questions.

I think something to understand is that customers are not "normally" creditors.

Customers - you owe Van's money for an item your looking to purchase.

Creditor - Van's owes you money for items they purchased from you.


if you choose to get a refund instead of paying the new kit prices you would fall into a sub category that would be at the mercy of the courts rulings on what to do with refund requests.

in the end the top 20 list has the final say when it comes to the vote not us customers.

(Example you order a new Computer from your local electronic store. that store folds a month later before your computer arrives. your the customer that's left waiting for an outcome as the company owes the computer manufacture first before they owe you.) just a small example for reference.
 
Thanks for starting this thread. I did some research on this last night but still don't have the answers so I look forward to understanding more.

So in my case I have an account credit as a result of money paid directly to Vans by another party in my favour. While my account credit is less than US$1000, it represents a lot of maintenance-related spare parts for me. As a side note I must say I was a bit disappointed in Vans when I ordered 11 x ToolBox Kits recently to dontate to the Student Trust and they charged my CC instead of using the credit I have. Cashflow., I guess. So the credit remains. Remained. Past tense, I suspect.

So my questions is:

Are they obliged to honour this credit or does CH.11 mean this slate is wiped clean?

My alternative is to write it off as a donation to Vans in support of their resurrection.


Cheers,
 
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just my 2 cents for a reference to your questions.

I think something to understand is that customers are not "normally" creditors.

Customers - you owe Van's money for an item your looking to purchase.

Creditor - Van's owes you money for items they purchased from you.


if you choose to get a refund instead of paying the new kit prices you would fall into a sub category that would be at the mercy of the courts rulings on what to do with refund requests.

in the end the top 20 list has the final say when it comes to the vote not us customers.

(Example you order a new Computer from your local electronic store. that store folds a month later before your computer arrives. your the customer that's left waiting for an outcome as the company owes the computer manufacture first before they owe you.) just a small example for reference.

I believe a customer who has paid but has not received product (or all the product) is still a creditor. Whether you are due cash or product in settlement is, I think, immaterial.

It may be true that customers are not 'usually' the creditors (we all think of Ch11 in the context of airlines I guess) but where a company going into Ch11 sells product with long lead times they can be. I'm not convinced that 'customer' has a specific definition in bankruptcy law whereas I'm pretty sure 'creditor' does and I reckon it covers anyone who is owed something, be that cash or goods.

Happy to be corrected if anyone can argue the point differently or providing any documentation related to such things in Chapter 11.
 
So my questions is:

Are they obliged to honour this credit or does CH.11 mean this slate is wiped clean?

My alternative is to write it off as a donation to Vans in support of their resurrection.

Cheers,

My guess is it just becomes another unsecured debt of theirs and makes you an unsecured creditor for the amount. If you held out for it, you'd get pennies on the dollar at best.

Charging your CC rather than using your credit is a bit naughty and it's for reasons like this that I never let anyone keep my CC details on file. I'm not sure writing it off as a donation helps anyone, since <1k isn't going to make a difference to Van's and it only reinforces the notion that such sharp practice is acceptable. Depending on how long ago it was you might consider informing your CC company that you did not authorise the charge.
 
I believe a customer who has paid but has not received product (or all the product) is still a creditor. Whether you are due cash or product in settlement is, I think, immaterial.

It may be true that customers are not 'usually' the creditors (we all think of Ch11 in the context of airlines I guess) but where a company going into Ch11 sells product with long lead times they can be. I'm not convinced that 'customer' has a specific definition in bankruptcy law whereas I'm pretty sure 'creditor' does and I reckon it covers anyone who is owed something, be that cash or goods.

Happy to be corrected if anyone can argue the point differently or providing any documentation related to such things in Chapter 11.

This is correct. Whether you are owed cash or property in kind, you are still considered a creditor. Customers are regularly unsecured creditors of various businesses that go bankrupt under Chapter 11 or Chapter 7. Hence the reason bankruptcy can be used to wipe out the value of gift cards. The reality is that the power of the bankruptcy court can be used to reform, void, or assume contracts more or less at the debtor's whim. Of course, the customer doesn't have to accept the reformed contract, but if they don't, that same court can force the customer to accept a reduced amount or even nothing for canceling said contract.

By the time this is over, I frankly see no way that those of us who bought into Van's as an economical way to own our own aircraft will be able to continue with our projects. The very minimum I can see prices increasing is 30%. However, they could increase by 50%, 70%, or even more in price. There's no way many of us will be able to finance that kind of investment, especially when engine prices are sky high already, and avionics have always been extremely expensive. I bought into a flight club a little bit back, and I haven't done much work on my plane since the LCP debacle more or less forced me to stop working on it. At this point, I'm considering just enjoying the flying club and writing this thing off as a bad investment.

Don't get me wrong. I'll wait until they release the final numbers for pricing before making that decision, but based on past pricing decisions and the amount prices would have to increase to go from being underwater to being profitable again, I just don't see any realistic path forward, and I'm sure there are several of us here in that same boat. My guess is that going forward, Van's will be considered a luxury aircraft kit company for wealthy builders, and the rest of us will either have to go with some other company or just settle for old certificated aircraft.
 
Yet another thread long on hysteria and short on certified legal advice.

Either NO real lawyers are building, or those that are qualified know that there is nothing yet to actually weigh in on, and speculation is bunk.

I'm leaning towards the latter here.
 
My alternative is to write it off as a donation to Vans in support of their resurrection.
You can't call it a charitable donation, if that's what you're thinking. But you might be able to write it off as a bad loan. Worth checking into anyway.
 
Yet another thread long on hysteria and short on certified legal advice.

Either NO real lawyers are building, or those that are qualified know that there is nothing yet to actually weigh in on, and speculation is bunk.

I'm leaning towards the latter here.

We're trying to find out things that we don't know, specifically about how the process works in general rather than the specifics of this case.

Have you anything to contribute in that regard?

You won't get 'certified legal advice' unless you're paying for it an a formalised client-lawyer relationship exists. It certainly won't happen on an internet forum and I'm not looking for it here.
 
My guess is it just becomes another unsecured debt of theirs and makes you an unsecured creditor for the amount. If you held out for it, you'd get pennies on the dollar at best.

This is essentially what rubs me the wrong away about this. If I'm understanding this correctly, the top 20 unsecured creditors listed in the "Voluntary Petition" will get a vote on the restructuring plan (including for example Aircraft Spruce who is owed $37K and "Bild Industries, Inc." who is owed $27K), including also Lycoming who it seems could arguably have a conflict of interest. Meanwhile the rest of us with outstanding deposits, the sum of which when taken together surely dwarfs most if not all of these amounts, essentially get an invitation to pay more "take it or leave it" by January 15.

Not to necessarily question anyone's motives, perhaps in the end this is indeed the best way to proceed- but it sure would seem more fair if we customers were given more of a voice in the process.
 
This is essentially what rubs me the wrong away about this. If I'm understanding this correctly, the top 20 unsecured creditors listed in the "Voluntary Petition" will get a vote on the restructuring plan

That's the point I'm after information on. Where do you get the information that it's the top 20 unsecured creditors who get to vote on the plan?

For some reason I thought that all creditors voted, but perhaps I'm wrong.
 
That's the point I'm after information on. Where do you get the information that it's the top 20 unsecured creditors who get to vote on the plan?

For some reason I thought that all creditors voted, but perhaps I'm wrong.

That might be correct I am not sure, and obviously I am not a lawyer (hopefully someone who is can jump in with definitive facts).

If I remember correctly though, I believe it is based on some combination of dollar amount and/or number of creditors. The way I read the filing (again, which admittedly might not be correct), it seems that customers are not being considered as creditors initially unless we reject the "pay more offer", and then as you say we will likely be considered individually at the bottom of the pool and likely risk losing most or all of our deposit.
 
We're trying to find out things that we don't know, specifically about how the process works in general rather than the specifics of this case.

Have you anything to contribute in that regard?

You won't get 'certified legal advice' unless you're paying for it an a formalised client-lawyer relationship exists. It certainly won't happen on an internet forum and I'm not looking for it here.

So you're just looking for more speculation? Because that's all anyone seems to have at this point, along with a healthy dose of hysteria. Personally, if I had a sizeable deposit or position with Vans, I'd throw a few hundred to my Lawyer to get real options. All I see on these posts is more pot stirring, which doesn't do anyone any good.
 
Thanks for starting this thread. I did some research on this last night but still don't have the answers so I look forward to understanding more.

So in my case I have an account credit as a result of money paid directly to Vans by another party in my favour. While my account credit is less than US$1000, it represents a lot of maintenance-related spare parts for me. As a side note I must say I was a bit disappointed in Vans when I ordered 11 x ToolBox Kits recently to dontate to the Student Trust and they charged my CC instead of using the credit I have. Cashflow., I guess. So the credit remains. Remained. Past tense, I suspect.

So my questions is:

Are they obliged to honour this credit or does CH.11 mean this slate is wiped clean?

My alternative is to write it off as a donation to Vans in support of their resurrection.


Cheers,

Mike:

I am in the same boat as you. I put extra money on account so that my RV-8 fuselage kit would get shipped prepaid. There was around a $1,000 USD left on account after my kit was received.

I have no issue letting Van's Aircraft use that amount interest free.

I do not know if I will get credit on a future order. It is more important to me that Van's Aircraft survive than me get the money on account any time soon.
 
I'm a lawyer but am required by the rules to tell you that I'm not your lawyer. This is not legal advice and you should consult with an attorney of your choosing. I am not a bankruptcy attorney, but I do work in finance and do a lot of workouts and distressed debt deals, and have studied and been heavily involved in deals subject to bankruptcy law. Kind of answering some of the questions I have seen:

1) If you paid Van's money and they owe you a product (even if you have to pay the balance) then you are an unsecured creditor for the amount you paid them.

2) Van's will offer you new pricing. If you accept it then they will ship you your stuff and you will no longer be owed anything and therefore you won't be a creditor any longer. If you don't accept the new pricing by mid-January then they will "reject" your order and you will be an unsecured creditor for the amount you have paid them.

3) Creditors and equity interest holders are divided into classes. In general these are, in order of priority, (a) super priority claims (e.g., people that lend to the company during the bankruptcy, the expenses of the bankruptcy, including attorneys), (b) secured lenders (i.e., people that loaned money to the company before bankruptcy to the extent their loans are secured by a lien against company assets, which in this case seems to only be Van himself), (c) priority claims (e.g., unpaid wage claims), (d) general unsecured creditors (e.g., customers with unshipped orders, trade creditors like Lycoming), and (e) shareholders.

4) In a chapter 7 liquidation, the company's assets would be sold and the proceeds distributed to the creditors by priority of class. As a general rule in any type of bankruptcy, all claims and interests within a particular class must be treated the same. This means that Van's couldn't give some general unsecured creditors more than others.

5) Since this is a chapter 11 case, Van's will not liquidate but instead will propose a plan of reorganization that will address what each class of creditors will receive and how the company will operate post bankruptcy. The rules require that in general a plan must provide for a better recovery than the creditors and equity interest holders would receive in a liquidation. Van's has basically indicated that the unsecured creditors would not receive anything in a liquidation because the inventory would not have much value in a liquidation and the debts are significant.

6) The plan must be approved by vote of the holders of claims (i.e., creditors) and equity interests (i.e., shareholders). Plan voting is done on a class-by-class basis. To approve the plan, each class of claims and equity interests that won't receive 100% recovery must vote to accept the plan. A class of claims accepts a plan if creditors holding at least two-thirds in dollar amount and more than half in number of the claims in that class vote to approve it. A class of interests accepts a plan if parties holding at least two-thirds in number of the interests vote to approve it.

7) It is possible that even though customer claims and trade creditor claims (like Lycoming's) are equal priority unsecured claims, they may divide us into separate classes for purposes of voting for strategic reasons.

8) If any class rejects the plan, the court may still confirm the plan if at least one class entitled to vote has accepted the plan and the plan does not discriminate unfairly against any non-consenting class and the plan is fair and equitable.

9) If Van's can't get their plan approved, then other parties can submit competing plans for approval. This could be someone that wants to buy the company out of bankruptcy.

10) If no plan is approved by a set deadline then the company will liquidate and the proceeds will be paid to creditors in order of priority.

11) You will receive a disclosure statement in the mail in the coming months, explaining the background of the debtor, the bankruptcy case and the risk factors of the proposed plan. You will also be told how you can vote.
 
I'm a lawyer but am required by the rules to tell you that I'm not your lawyer. This is not legal advice and you should consult with an attorney of your choosing. I am not a bankruptcy attorney, but I do work in finance and do a lot of workouts and distressed debt deals, and have studied and been heavily involved in deals subject to bankruptcy law. Kind of answering some of the questions I have seen:

1) If you paid Van's money and they owe you a product (even if you have to pay the balance) then you are an unsecured creditor for the amount you paid them.

2) Van's will offer you new pricing. If you accept it then they will ship you your stuff and you will no longer be owed anything and therefore you won't be a creditor any longer. If you don't accept the new pricing by mid-January then they will "reject" your order and you will be an unsecured creditor for the amount you have paid them.

3) Creditors and equity interest holders are divided into classes. In general these are, in order of priority, (a) super priority claims (e.g., people that lend to the company during the bankruptcy, the expenses of the bankruptcy, including attorneys), (b) secured lenders (i.e., people that loaned money to the company before bankruptcy to the extent their loans are secured by a lien against company assets, which in this case seems to only be Van himself), (c) priority claims (e.g., unpaid wage claims), (d) general unsecured creditors (e.g., customers with unshipped orders, trade creditors like Lycoming), and (e) shareholders.

4) In a chapter 7 liquidation, the company's assets would be sold and the proceeds distributed to the creditors by priority of class. As a general rule in any type of bankruptcy, all claims and interests within a particular class must be treated the same. This means that Van's couldn't give some general unsecured creditors more than others.

5) Since this is a chapter 11 case, Van's will not liquidate but instead will propose a plan of reorganization that will address what each class of creditors will receive and how the company will operate post bankruptcy. The rules require that in general a plan must provide for a better recovery than the creditors and equity interest holders would receive in a liquidation. Van's has basically indicated that the unsecured creditors would not receive anything in a liquidation because the inventory would not have much value in a liquidation and the debts are significant.

6) The plan must be approved by vote of the holders of claims (i.e., creditors) and equity interests (i.e., shareholders). Plan voting is done on a class-by-class basis. To approve the plan, each class of claims and equity interests that won't receive 100% recovery must vote to accept the plan. A class of claims accepts a plan if creditors holding at least two-thirds in dollar amount and more than half in number of the claims in that class vote to approve it. A class of interests accepts a plan if parties holding at least two-thirds in number of the interests vote to approve it.

7) It is possible that even though customer claims and trade creditor claims (like Lycoming's) are equal priority unsecured claims, they may divide us into separate classes for purposes of voting for strategic reasons.

8) If any class rejects the plan, the court may still confirm the plan if at least one class entitled to vote has accepted the plan and the plan does not discriminate unfairly against any non-consenting class and the plan is fair and equitable.

9) If Van's can't get their plan approved, then other parties can submit competing plans for approval. This could be someone that wants to buy the company out of bankruptcy.

10) If no plan is approved by a set deadline then the company will liquidate and the proceeds will be paid to creditors in order of priority.

11) You will receive a disclosure statement in the mail in the coming months, explaining the background of the debtor, the bankruptcy case and the risk factors of the proposed plan. You will also be told how you can vote.

Appreciate the breakdown. I know you cant give legal advice, and I hope this doesn't break any rules, but could you tell me what type of law/attorney individual customers should seek out should they want individual consult? I did some google scanning but got a lot of guys on billboards that didn't seem to cover this type of case.
 
So you're just looking for more speculation? Because that's all anyone seems to have at this point, along with a healthy dose of hysteria. Personally, if I had a sizeable deposit or position with Vans, I'd throw a few hundred to my Lawyer to get real options. All I see on these posts is more pot stirring, which doesn't do anyone any good.

Engaging your own attorney won't do you any good either - all litigation is suspended during Chapter 11. You can get all the advice you want to pay for, obviously - but you can't take action against Vans.
 
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Appreciate the breakdown. I know you cant give legal advice, and I hope this doesn't break any rules, but could you tell me what type of law/attorney individual customers should seek out should they want individual consult? I did some google scanning but got a lot of guys on billboards that didn't seem to cover this type of case.

If you want someone to address your rights and expectations in bankruptcy, attorneys that handle business bankruptcies and/or represent lenders would be your best bet.
 
Generally the Judge overseeing the bankruptcy will appoint a creditors committee. The committee essentially controls the business. Normally those owed the most get a seat. If the total owed customers is large enough it’s possible that the judge could allow a customer representive on the committee. The committee will vote and approve a chapter 11 exit strategy. They could also choose to liquidate if they felt it was in their best interest. Seems unlikely in this case. While in Chapter 11 control of the company is essentially lost. The Chinese could as an example make a bid to the creditors committee much like when American tried to takeover Delta when they were in chapter 11.
 
Really? You have got to be kidding. The good news is that the money you pay to the lawyer will finance his new RV…

Please re-read my response. In the theme of the original post, I was clarifying a general point concerning Chapter 11. I did not make, suggest, or imply anything with regard to Van’s.
 
Mike:

I am in the same boat as you. I put extra money on account so that my RV-8 fuselage kit would get shipped prepaid. There was around a $1,000 USD left on account after my kit was received.

I have no issue letting Van's Aircraft use that amount interest free.

I do not know if I will get credit on a future order. It is more important to me that Van's Aircraft survive than me get the money on account any time soon.

Hi Gary,

Yeah, same here mate. It's disappointing but I'm not bitter towards Vans. As you say, its more important Vans survive. It would be nice to be able to use that money one day... but it seems very unlikely having read the information on here. I appreciate the time people have taken to write up a few words for us as regarding the CH.11 process because while I'd heard about it, being in a different country its not something I have ever had need to understand. I feel for those who are worse off than you or I.

As the charges to my CC for the toolbox kits were a month ago now its probably a bit late to go and claim this back. And the kits have been supplied so I can't claim I paid for something I didn't get, despite the non-authorized use of the CC.

Being a long way from Aurora, sadly I'm going to have to put this down to one of those life experiences and move on.

Cheers,
 
I'm a lawyer but am required by the rules to tell you that I'm not your lawyer. This is not legal advice and you should consult with an attorney of your choosing. I am not a bankruptcy attorney, but I do work in finance and do a lot of workouts and distressed debt deals, and have studied and been heavily involved in deals subject to bankruptcy law. Kind of answering some of the questions I have seen:

1) If you paid Van's money and they owe you a product (even if you have to pay the balance) then you are an unsecured creditor for the amount you paid them.

2) Van's will offer you new pricing. If you accept it then they will ship you your stuff and you will no longer be owed anything and therefore you won't be a creditor any longer. If you don't accept the new pricing by mid-January then they will "reject" your order and you will be an unsecured creditor for the amount you have paid them.

3) Creditors and equity interest holders are divided into classes. In general these are, in order of priority, (a) super priority claims (e.g., people that lend to the company during the bankruptcy, the expenses of the bankruptcy, including attorneys), (b) secured lenders (i.e., people that loaned money to the company before bankruptcy to the extent their loans are secured by a lien against company assets, which in this case seems to only be Van himself), (c) priority claims (e.g., unpaid wage claims), (d) general unsecured creditors (e.g., customers with unshipped orders, trade creditors like Lycoming), and (e) shareholders.

4) In a chapter 7 liquidation, the company's assets would be sold and the proceeds distributed to the creditors by priority of class. As a general rule in any type of bankruptcy, all claims and interests within a particular class must be treated the same. This means that Van's couldn't give some general unsecured creditors more than others.

5) Since this is a chapter 11 case, Van's will not liquidate but instead will propose a plan of reorganization that will address what each class of creditors will receive and how the company will operate post bankruptcy. The rules require that in general a plan must provide for a better recovery than the creditors and equity interest holders would receive in a liquidation. Van's has basically indicated that the unsecured creditors would not receive anything in a liquidation because the inventory would not have much value in a liquidation and the debts are significant.

6) The plan must be approved by vote of the holders of claims (i.e., creditors) and equity interests (i.e., shareholders). Plan voting is done on a class-by-class basis. To approve the plan, each class of claims and equity interests that won't receive 100% recovery must vote to accept the plan. A class of claims accepts a plan if creditors holding at least two-thirds in dollar amount and more than half in number of the claims in that class vote to approve it. A class of interests accepts a plan if parties holding at least two-thirds in number of the interests vote to approve it.

7) It is possible that even though customer claims and trade creditor claims (like Lycoming's) are equal priority unsecured claims, they may divide us into separate classes for purposes of voting for strategic reasons.

8) If any class rejects the plan, the court may still confirm the plan if at least one class entitled to vote has accepted the plan and the plan does not discriminate unfairly against any non-consenting class and the plan is fair and equitable.

9) If Van's can't get their plan approved, then other parties can submit competing plans for approval. This could be someone that wants to buy the company out of bankruptcy.

10) If no plan is approved by a set deadline then the company will liquidate and the proceeds will be paid to creditors in order of priority.

11) You will receive a disclosure statement in the mail in the coming months, explaining the background of the debtor, the bankruptcy case and the risk factors of the proposed plan. You will also be told how you can vote.

Thank you, Sir. I appreciate you taking the time to produce this as it clarifies things immensely.


Cheers,
 
Generally the Judge overseeing the bankruptcy will appoint a creditors committee. The committee essentially controls the business. Normally those owed the most get a seat. If the total owed customers is large enough it’s possible that the judge could allow a customer representive on the committee. The committee will vote and approve a chapter 11 exit strategy. They could also choose to liquidate if they felt it was in their best interest. Seems unlikely in this case. While in Chapter 11 control of the company is essentially lost. The Chinese could as an example make a bid to the creditors committee much like when American tried to takeover Delta when they were in chapter 11.

It was US Airways, didn’t get far, but you point illustrates the peril that exists during Chapter 11. Not much anyone here can do about it, we get a single vote as unsecured creditors.
 
I'm a lawyer but am required by the rules to tell you that I'm not your lawyer. This is not legal advice and you should consult with an attorney of your choosing. I am not a bankruptcy attorney, but I do work in finance and do a lot of workouts and distressed debt deals, and have studied and been heavily involved in deals subject to bankruptcy law. Kind of answering some of the questions I have seen:

1) If you paid Van's money and they owe you a product (even if you have to pay the balance) then you are an unsecured creditor for the amount you paid them.

2) Van's will offer you new pricing. If you accept it then they will ship you your stuff and you will no longer be owed anything and therefore you won't be a creditor any longer. If you don't accept the new pricing by mid-January then they will "reject" your order and you will be an unsecured creditor for the amount you have paid them.

3) Creditors and equity interest holders are divided into classes. In general these are, in order of priority, (a) super priority claims (e.g., people that lend to the company during the bankruptcy, the expenses of the bankruptcy, including attorneys), (b) secured lenders (i.e., people that loaned money to the company before bankruptcy to the extent their loans are secured by a lien against company assets, which in this case seems to only be Van himself), (c) priority claims (e.g., unpaid wage claims), (d) general unsecured creditors (e.g., customers with unshipped orders, trade creditors like Lycoming), and (e) shareholders.

4) In a chapter 7 liquidation, the company's assets would be sold and the proceeds distributed to the creditors by priority of class. As a general rule in any type of bankruptcy, all claims and interests within a particular class must be treated the same. This means that Van's couldn't give some general unsecured creditors more than others.

5) Since this is a chapter 11 case, Van's will not liquidate but instead will propose a plan of reorganization that will address what each class of creditors will receive and how the company will operate post bankruptcy. The rules require that in general a plan must provide for a better recovery than the creditors and equity interest holders would receive in a liquidation. Van's has basically indicated that the unsecured creditors would not receive anything in a liquidation because the inventory would not have much value in a liquidation and the debts are significant.

6) The plan must be approved by vote of the holders of claims (i.e., creditors) and equity interests (i.e., shareholders). Plan voting is done on a class-by-class basis. To approve the plan, each class of claims and equity interests that won't receive 100% recovery must vote to accept the plan. A class of claims accepts a plan if creditors holding at least two-thirds in dollar amount and more than half in number of the claims in that class vote to approve it. A class of interests accepts a plan if parties holding at least two-thirds in number of the interests vote to approve it.

7) It is possible that even though customer claims and trade creditor claims (like Lycoming's) are equal priority unsecured claims, they may divide us into separate classes for purposes of voting for strategic reasons.

8) If any class rejects the plan, the court may still confirm the plan if at least one class entitled to vote has accepted the plan and the plan does not discriminate unfairly against any non-consenting class and the plan is fair and equitable.

9) If Van's can't get their plan approved, then other parties can submit competing plans for approval. This could be someone that wants to buy the company out of bankruptcy.

10) If no plan is approved by a set deadline then the company will liquidate and the proceeds will be paid to creditors in order of priority.

11) You will receive a disclosure statement in the mail in the coming months, explaining the background of the debtor, the bankruptcy case and the risk factors of the proposed plan. You will also be told how you can vote.

As an update to this, I remembered an important detail after writing this up. Van's filed under Subchapter V of Chapter 11. A Subchapter V bankruptcy is a streamlined version of Chapter 11 for small businesses that was created by the Small Business Reorganization Act of 2020. So while most of what I posted above still applies, here are a few differences and additional items that are relevant here:

1) There are typically no creditor committees in a Subchapter V case. Creditor committees, comprised of a handful of the largest unsecured creditors, are used in ordinary Chapter 11 cases to represent the interests of unsecured creditors and help negotiate the plan of reorganization. Foregoing a creditor committee saves a lot of money and time (which benefits the customers), but in a way, gives Van's more control over the plan of reorganization.

2) The deadlines are much shorter. For instance, the plan has to be proposed within 90 days of filing (instead of 180 days or more).

3) A disclosure statement designed to give interested parties adequate disclosure to make an informed decision relating to the acceptability of the plan is not required unless ordered by the court. You will still get info about the plan, but it won't be as detailed as a typical disclosure statement.

4) The "absolute priority rule" does not apply in Subchapter V. Typically if a class of creditors rejects the plan of reorganization, then the plan can't be forced upon the creditors (called a "cramdown") unless they would be paid in full before junior creditors or equity would receive anything. This is why equity often gets wiped out in Chapter 11. But in Subchapter V this rule does not apply, and so that means the plan can be crammed down on unsecured creditors (i.e., the customers) even if Van's shareholders stay in place (which they likely will).

5) A cram down in Subchapter V is easier to accomplish than in plain Chapter 11. You do not need at least one impaired class of creditors to vote to approve the plan. You just need to show that the plan does not discriminate unfairly and that it is fair and equitable with regard to each class of impaired claims or interests that has rejected the plan. The plan does not discriminate unfairly if holders of substantially similar claims, classified in different classes with the same priority, receive the same treatment.

6) For a cramdown plan to be fair and equitable, Van's would have to use all of its projected disposable income to make plan payments to creditors over a period of three to five years. Their final discharge of debts would not occur until the end of that period and the trustee would stay in place until that time. In a consensual plan, the discharge happens upon plan confirmation. So I would bet that Van's will try hard for a consensual plan.

7) In Subchapter V, only Van's will be able to file a plan of reorganization. This may give them a bit more bargaining power, but it also means that a PE firm or foreign investor can't propose a plan that would allow them to take over the company.
 
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Anyone with a deposit on an order not yet fulfilled has what’s called an executory contract. In short it’s a contract that has not been fully completed. The rules of a chapter 11 bk allow the debtor (Vans) to accept or reject executory contracts. Based on their filings, they’ve chosen to reject unless parties agree to modified terms. We know there will be a proposed price increase, but it’s unlikely those with orders (myself included) will know any other proposed changes until we get the notification from Vans with the details. If you’re wondering what other options are available (other than accepting the proposed terms) you should consult a bankruptcy attorney licensed in Oregon (since that’s where Vans filed).
 
Question - Is the liabilities limit on Subchapter V filings $7.5 million and if so, how did Van's qualify with $10-50 million in liabilities as shown in the filings?

I really appreciate your expertise and layman's terms explanation of the process.

That's a good question. I would say that filing under Subchapter V doesn't necessarily mean you are qualified to do so, and potentially a creditor could oppose it. But it's also possible that much of that debt is debt to Van himself and they may not include that as a liability since debt to shareholders is often considered equity for bankruptcy purposes.
 
It sounds like someone needs to raise the question of the $7.5m limit at the hearing today. With the listed business creditors, the customers with deposits, and the LCP-related liabilities, the debts are clearly way more than $7.5m.

I would bring it up, but not being a US citizen I'm assuming I've no right to be heard (even as a creditor) in a US court.
 
I'd be careful in assuming accounting liabilities (LCP) qualify as "Debts" in bankruptcy. They are more likely an accounting accrual / estimate of total costs to replace lcp for customers - i dont think this is the same as actual Debt.
 
I'd be careful in assuming accounting liabilities (LCP) qualify as "Debts" in bankruptcy. They are more likely an accounting accrual / estimate of total costs to replace lcp for customers - i dont think this is the same as actual Debt.

Surely it's a debt if the affected customers register a claim? The logic of the claim would be that they consider the contracts of sale unfulfilled until the LCP parts are replaced.

I advised Van's in writing some time ago that I considered it not yet to have fulfilled its contractual obligations to me with respect to the affected kits.
 
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