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Tuesday, August 25, 2020

Will Small Businesses Stay Closed Post-Pandemic? This article appeared at Catalyst on August 22, 2020



https://catalyst.independent.org/2020/08/22/covid-19-small-business-post-pandemic/

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Will Small Businesses Stay Closed Post-Pandemic?


Can the United States stand to lose the four million small businesses Oxxford predicts?

By Luka Ladan August 22, 2020 Economy & Jobs| Articles

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More than one million. That is how many small businesses have closed in the United States, due, in one way or another, to the COVID-19 pandemic.




According to New York-based Oxxford Information Technology, as many as 1.4 million small businesses closed their doors or temporarily suspended operations in the second quarter. By the end of the year, four million small businesses could be lost. This means job loss of epic proportions: In June, the number of people working at companies with fewer than 500 employees (e.g. the “small business” threshold) dropped by nearly 11 percent from its February peak.




Millions and millions of previously employed Americans are being affected, to say nothing of those who enter the job market every year, who they are now competing with.




Unfortunately, the short-term economic bleeding could be even worse than anticipated. Thousands of small businesses are closing their doors without reporting closure, which Bloomberg’s Madeleine Ngo describes as “silent failures.” In Ngo’s words: “This wave of silent failures goes uncounted in part because real-time data on small business is notoriously scarce, and because owners of small firms often have no debt, and thus no need for bankruptcy court.”




While the immediate economic picture is anything but rosy, the stubborn persistence of the coronavirus also raises longer-term questions. Namely, how will a “black swan” event like the COVID-19 pandemic impact entrepreneurship in the years and decades to come?




Entrepreneurship is already an uphill battle. One in five small businesses fails within the first year. By the end of their fifth year, roughly 50 percent have been wiped out. Within a decade, only about a third survive.




Then, there is generational difference. The Millennial generation was already more risk-averse than its predecessors, with many young professionals choosing a traditional work arrangement over the turbulence of business formation. Interestingly, Millennials do fancy themselves as entrepreneurial, with 60 percent of Millennials considering themselves entrepreneurs and 90 percent recognizing entrepreneurship as a mentality.




However, they are not walking the walk: In 2015, the share of people under age 30 who own private businesses reached a 24-year low, plummeting from 10.9 percent in 1989 to just 3.6 percent. More recently, Guidant Financial found that 12 percent of America’s small business owners are Millennials, although they comprise half of the U.S. workforce.




Of course, the Millennial generation’s risk-aversion is not one-dimensional. From student loan debt to an inability to gain market share, there are many explanations for slumping start-up rates, and some are certainly valid. At a time when “cash on hand” is more valuable than ever, entrepreneurship may simply be a bridge too far.




Which brings us back to the COVID-19 pandemic: Where does entrepreneurship go from here? More likely than not, an already risk-averse generation will take in a “black swan” event and decide to mitigate risk even further. The sudden vulnerability of America’s labor market will be reason enough, for Millennials and many other Americans, to opt for the “sure thing” of traditional employment, rather than the great unknown of entrepreneurship.




Look at it this way: In 2001, only 24 percent of Americans then aged 25-to-34 claimed that fear of failure was keeping them from starting a business. By 2014, 40 percent of the same demographic reported that fear—a 16 percent increase between generations. The COVID-19 pandemic is unlikely to diminish those anxieties, when business failure has become so mainstream.




None of these trends bode well for U.S. economy, one dependent on the growth potential of human innovation. There will always be exceptions to the rule (see: Mark Zuckerberg), but would a younger Mark Zuckerberg decide to become an entrepreneur in today’s business climate? Perhaps not.




One thing is clear: A large-scale shift away from entrepreneurship is sure to undermine America’s long-term gross domestic product, job creation, poverty, and other economic indicators. Without the entrepreneur, America’s once-extraordinary economic experiment begins looking like the rest.

Friday, August 21, 2020

Taxi Drivers Protest With No Coronavirus Relief In Sight Patch August 21, 2020



This story orginally appeared at https://patch.com/new-york/new-york-city/taxi-drivers-protest-no-coronavirus-relief-sight

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Taxi Drivers Protest With No Coronavirus Relief In Sight


Drivers shut down traffic around city hall to protest a lack of aid, and continued on to medallion creditors who still demand payment.

By Documented NY, News Partner

Aug 21, 2020 1:19 pm ET


Bronx, New York - May 6, 2018: Views of Jerome Street in the Bronx.

Bronx, New York - May 6, 2018: Views of Jerome Street in the Bronx. (Photo: Christopher Lee for Documented.)

August 21 2020

Max Siegelbaum @maxsiegelbaum


Taxi drivers parked their cabs and shut down the area around New York City Hall on Wednesday morning to demand help from the mayor. COVID-19 has dried up most of their fares, and creditors are still seeking money for their taxi medallions that have plummeted in value. The New York Taxi Workers Alliance organized the rally, which proceeded from city hall to buildings of taxi loan creditors in Long Island and New Jersey. The organization estimates ridership has dropped between 80 percent and 90 percent during the pandemic. "The brokers, the mayor the banks, they all said they would take care of yellow medallion taxis, but instead, the TLC [Taxi and Limousine Commission) didn't tell drivers the medallion was going to drop from hundreds of thousands of dollars to only $83,000 — leaving many of us with huge debt and it's killing us," one driver said outside City Hall. amNY

Monday, August 17, 2020

Hard times: One in four Americans have missed a bill payment since COVID-19 emerged



This article originally appeared on August 10, 2020 at https://www.studyfinds.org/quarter-americans-missed-bill-payment-covid-19/

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Tough for many these days, and a new survey shows that Americans are cutting costs or even adopting a ‘minimalistic’ lifestyle to make ends meet. 


NEW YORK — From our social lives to professional careers, life as we know it has shifted since the beginning of 2020. Well, almost everything; millions may have lost their jobs due to COVID-19, but that doesn’t mean the bills have stopped coming. Indeed, paying off bills are an unavoidable part of life, even during a pandemic. Unfortunately, a new survey of 2,000 Americans finds that one in four (24%) have already missed at least one payment since the pandemic began.


Among that group, 26% say they haven’t paid their cell phone or cable bills. Another 25% failed to pay for streaming services, and perhaps more worryingly, some of their electricity or utilities bills.

On average, Americans who admit to skipping a bill payment have missed five bills altogether.

Commissioned by EnergyBot, the survey set out to gauge just how much COVID-19 has dealt a blow to Americans financially. Predictably, money is a big concern these days. In fact, 63% say they’re “always” worried about paying all their bills right now. Similarly, 58% are battling extra stress over their bills since the pandemic started.

Ways we’re cutting back

With those last stats in mind, it makes sense then that 65% of respondents admit they’ve had to make some sacrifices lately to make ends meet. What type of sacrifices are we talking about? Many have cancelled subscription services (38%) and gym memberships (39%). Others are cutting costs by no longer ordering takeout food (35%).


All in all, 52% say they only buy the “essentials” these days. Another 43% are no longer buying premium quality goods (toilet paper, gas) in an effort to save some cash. Some are adopting new lifestyles: 41% say they’re following “minimalistic” approach to life.

Moreover, about two in five people never use their credit card anymore because it encourages them to spend more.


Raiding retirement to pay off bills

A third of Americans have also been forced to dip into their savings accounts because of COVID-19. On that note, 55% of respondents often feel “overwhelmed” by just how much the coronavirus has changed their financial footing.

Even small expenses, like repairing a broken home appliance, just aren’t possible right now. A significant portion of respondents (35%) have learned to live without a broken appliance because they just can’t afford to fix it. Meanwhile, 68% have tried to fix the appliance themselves (or asked a spouse to fix it). Others (33%) have used some of their savings to solve such issues when they were unable to fix the item themselves.

Another 37% say, however, that they wouldn’t even have enough savings to fix appliances if they were to break.

A few other common ways Americans are saving money through this pandemic are: turning off lights when they’re not needed (62%); turning off appliances when they’re not being used (46%); closing windows/doors when the heat is on (42%); opening the windows instead of using AC (36%); and using blinds to adjust room temperature (33%).

Thursday, August 13, 2020

Taxi commission fails to regulate Uber and Lyft under two-year-old city law

This article orginally appeared in Cranes New York Business on August 13, 2020 at 
https://www.crainsnewyork.com/transportation/taxi-commission-fails-regulate-uber-and-lyft-under-two-year-old-city-law

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Taxi commission fails to regulate Uber and Lyft under two-year-old city law


BRIAN PASCUS


The city’s taxi enforcement agency known for its heavy hand with drivers has neglected to implement a two-year-old law aimed at helping yellow taxis compete with Uber and Lyft as the ride-hail apps roiled the industry.


Local Law 149, signed by Mayor Bill de Blasio and enacted Aug. 14, 2018, created the category of High Volume For Hire Services—companies that handle more than 10,000 rides a day—and required them to apply for a special permit through the Taxi and Limousine Commission. Under the regulation they must turn over records, including driver compensation, environmental impact, financial impact and other information, that could result in further restrictions on them.

So far, both Uber and Lyft have applied for the permits, but the TLC has not approved their applications.

“The TLC failed to timely enact regulations and enact the legislation which their chair asked for,” said Christopher Lynn, a TLC commissioner from 1996 to 1998. “In other words, the TLC did everything else except level the playing field and hold Uber accountable.”

The law sought to provide greater transparency of companies, such as Uber and Lyft, whose fleet of cars had risen exponentially in the city beginning in 2011 at the expense of traditional yellow taxi drivers and livery black car taxis, leading many of these drivers to fall into bankruptcy and despair. There were several taxi-industry suicides before the law’s passage.

For taxi medallion owners, the TLC’s lack of enforcement is nothing short of a betrayal of its mission to regulate and protect the yellow cab medallion industry.

“I expected the TLC to enforce the rules that they’ve had on the books for many years, which would’ve prevented many of the excessive for-hire vehicles from ever being on the road,” said Carolyn Protz, a taxi medallion owner. “The TLC hasn’t done anything. They haven’t held the app companies to the rules they were supposed to create.”

More than that, industry insiders say, the city could be leaving money uncollected during an extreme budget crisis. The penalty for companies operating without the High Volume For Hire Service license is a $10,000 fine each day the violation is in place.

The law explicitly states it is unlawful for these types of companies to operate unless licensed by the TLC.

But emails and legal documents obtained by Crain’s show that Uber and Lyft have been operating in New York without an approved high-volume license for two years.

During a July 23, 2019, public hearing before the TLC, Uber noted that the status of its high-volume license, which had been submitted to the TLC, was still pending. That September the TLC testified that it was in the process of implementing the law.

Not much changed nearly a year later.

An email exchange from June 18 of this year between Kala Wright, the TLC's deputy commissioner for policy, and Protz confirmed that Uber, Lyft and Via were still operating without an approved license as late as 20 months after the City Council passed the bill.

“Hi Carolyn, thanks for following up, the [high-volume] licenses are still under review, all of the company's (sic) have submitted their application materials,” Wright wrote at the time.

Lyft confirmed that it has not heard back from the TLC on its application.

"The TLC has yet to issue formal [high-volume] licenses or provide indication of when those should be expected," Lyft representative Campbell Matthews said.

Uber and Via did not respond to a request for comment.

For its part, the TLC has said that it’s done nothing wrong, but the agency failed to make clear why it has delayed subjecting the ride-hail apps to the law.

“Uber and Lyft are indeed fully licensed and will remain so while their HVFHV applications are being processed,” said Allan Fromberg, a spokesman for the TLC, using the designation for high volume for-hire vehicles.

Medallion owners, such as Protz, can’t understand how the TLC could turn a blind eye to the regulations established under a new law explicitly passed to level the playing field among all drivers and ride-share companies.

“The TLC is really rogue. They just ignored what they were told to do by the City Council,” she said.

Baked into Local Law 149 are a few different licensing requirements that Uber and Lyft must comply with to be licensed under the law. These requirements include a list of bases through which the companies will dispatch trips, a business plan with trip volumes, a vehicle count, accessibility requirements and an impact analysis.

The impact analysis assesses the effect of a prospective licensee’s operation on the environment and documents the applicant’s impact on traffic congestion, public transportation, private motor vehicles and noise in the city area.

It is thought that these regulations—notably a comprehensive account of the environmental impact tens of thousands of Uber and Lyft vehicles have on the city's environment—would complicate, if not prove detrimental, to the ride-share companies.

City Council Speaker Corey Johnson said agency representatives testified to the council in September 2019 that they were working on implementing the law.

“The council passed laws regulating for-hire vehicles with the expectation that the TLC would implement and enforce them as soon as possible, so it's frustrating to hear this is taking so long,” Johnson said. “I urge the TLC to take action quickly to fix this situation and comply with the law we passed.”

Bronx Councilman Ruben Diaz Sr., who introduced the bill, has called on Attorney General Letitia James to investigate what he said is lack of oversight by the TLC.

Councilman Ritchie J. Torres, who chairs the Oversights and Investigations Committee, said he was “deeply disturbed” by the allegations that the TLC is circumventing local law.

“No agency gets to pick and choose the laws it wishes to follow,” Torres spokesman Raymond Rodriguez said. “The TLC has an obligation to faithfully follow all local laws, and Local Law 149 is by no means an exception.”

For medallion owners, who have seen their livelihood altered in the face of the ride-share onslaught, the failure of the TLC and the de Blasio administration to implement Local Law 149 has dramatically altered the city’s transportation landscape.

“They damaged public transportation, increased pollution, increased congestion, destroyed a $15 billion taxi medallion franchise and created poverty among all the drivers,” Protz said. “And they’ve done all that for nothing.”


Wednesday, August 12, 2020

Retail Chains Abandon Manhattan: ‘It’s Unsustainable’ New York Times August 11, 2020

This article originally appeared in the New York Times at https://www.nytimes.com/2020/08/11/nyregion/nyc-economy-chain-stores.html
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Retail Chains Abandon Manhattan: ‘It’s Unsustainable’


Some national chains, both retail and restaurants, are closing outlets in New York City, which are struggling more than their branches elsewhere.




A Gap store near Rockefeller Center. Many companies have kept their stores closed in New York, even as they have opened stores in other parts of the country.

A Gap store near Rockefeller Center. Many companies have kept their stores closed in New York, even as they have opened stores in other parts of the country. Credit...Hiroko Masuike/The New York Times

By Matthew Haag and Patrick McGeehan

Aug. 11, 2020

For years, Bryant Park Grill & Cafe in Midtown Manhattan has been one of the country’s top-grossing restaurants, the star property in Ark Restaurants’ portfolio of 20 restaurants across the United States.

But what propelled it to the top has vanished.

The tourists are gone, the office towers surrounding it are largely empty and the restaurant’s 1,000-seat dining room is closed. Instead, dinner is cooked and served on its patio, and the scaled-down restaurant brings in about $12,000 a day — an 85 percent plunge in revenue, its chief executive said.


Five months into the pandemic, the drastic turn of events at businesses like Bryant Park Grill & Cafe that are part of national chains shows how the economic damage in New York has in many cases been far worse than elsewhere in the country.

In the heart of Manhattan, national chains including J.C. Penney, Kate Spade, Subway and Le Pain Quotidien have shuttered branches for good. Many other large brands, like Victoria’s Secret and the Gap, have kept their high-profile locations closed in Manhattan, while reopening in other states.

Michael Weinstein, the chief executive of Ark Restaurants, who owns Bryant Park Grill & Cafe and 19 other restaurants, said he will never open another restaurant in New York.

ImageA Uniqlo store on Fifth Avenue. Many businesses in Manhattan are struggling because of a lack of tourists and a relatively small number of office workers.

A Uniqlo store on Fifth Avenue. Many businesses in Manhattan are struggling because of a lack of tourists and a relatively small number of office workers. Credit...Hiroko Masuike/The New York Times

Of Ark Restaurants’ five Manhattan restaurants, only two have reopened, while its properties in Florida — where the virus is far worse — have expanded outdoor seating with tents and tables into their parking lots, serving almost as many guests as they had indoors.

“There’s no reason to do business in New York,” Mr. Weinstein said. “I can do the same volume in Florida in the same square feet as I would have in New York, with my expenses being much less. The idea was that branding and locations were important, but the expense of being in this city has overtaken the marketing group that says you have to be there.”


Even as the city has contained the virus and slowly reopens, there are ominous signs that some national brands are starting to abandon New York. The city is home to many flagship stores, chains and high-profile restaurants that tolerated astronomical rents and other costs because of New York’s global cachet and the reliable onslaught of tourists and commuters.

But New York today looks nothing like it did just a few months ago.

In Manhattan’s major retail corridors, from SoHo to Fifth Avenue to Madison Avenue, once packed sidewalks are now nearly empty. A fraction of the usual army of office workers goes into work every day, and many wealthy residents have left the city for second homes.


An H&M store on Fifth Avenue is open, but other stores along the famous thoroughfare are still shut.

An H&M store on Fifth Avenue is open, but other stores along the famous thoroughfare are still shut. Credit...Hiroko Masuike/The New York Times

Many stores are still closed, some permanently, while those that are open have very little foot traffic.

For four months, the Victoria’s Secret flagship store at Herald Square in Manhattan has been closed and not paying its $937,000 monthly rent. “It will be years before retail has even a chance of returning to New York City in its pre-Covid form,” the retailer’s parent company recently told its landlord in a legal document.


“In the prime real estate areas, all the stores rely on having half international tourists and half local tourists or those from the local neighborhoods,” said Thiago Hueb, a founder of a jewelry company who had decided to close his flagship store on Madison Avenue before the pandemic struck because of high rents.


Now brokers are calling him trying to lure him back to the block, but Mr. Hueb, whose jewelry is sold in 80 department stores nationwide, is not interested.

“The avenue is no longer what it used to be,” he said.

J.C. Penney and Neiman Marcus, the anchor tenants at two of the largest malls in Manhattan, recently filed for bankruptcy and announced that they would shutter those locations.




The Neiman Marcus at Hudson Yards, the first in New York City, had only opened last year, with its name adorning the outside of the luxury mall — the centerpiece of the country’s largest private development.







Image

Victoria’s Secret’s flagship store in Midtown Manhattan has remained closed for months, and its owners have stopped paying rent.

Victoria’s Secret’s flagship store in Midtown Manhattan has remained closed for months, and its owners have stopped paying rent. Credit...Hiroko Masuike/The New York Times

Some popular chains, like Shake Shack and Chipotle, report that their stores in New York were performing worse than others elsewhere, investment analysts said. A few dozen Subway locations have closed in New York City in recent months. Le Pain Quotidien has permanently closed several of its 27 stores in the city and plans to leave others closed until more people return to the streets, said Andrew Stern, co-chief executive of the chain’s parent, Aurify Brands.


A Gap Store near Rockefeller Center has stayed closed and has not paid its $264,000 monthly rent. Two T.G.I. Friday’s in prime locations, one near Rockefeller Center and another in Times Square, have remained closed while its restaurants elsewhere in the country have reopened.


Anyone in the food and dining business is really suffering right now,” said Vin McCann, a restaurant consultant with Heyer Performance in Lower Manhattan. “I think that’s true in all the boroughs.”


New York’s stringent lockdown and methodical reopening may have brought the virus to heel, Mr. McCann said, but it is also wreaking havoc on businesses with so few people going to work, virtually no visitors and many residents “a little loath to go out” and worried for their health.

“There’s going to be a lot of pain,’’ he added.


Landlords have started filing lawsuits against commercial tenants for not paying rent, accusing some national brands of trying to take advantage of the crisis.

A Zara store in Manhattan. J.C. Penney and Neiman Marcus, which anchor two of Manhattan’s largest malls, have declared bankruptcy and are closing their stores there.

A Zara store in Manhattan. J.C. Penney and Neiman Marcus, which anchor two of Manhattan’s largest malls, have declared bankruptcy and are closing their stores there. Credit...Hiroko Masuike/The New York Times

“SL Green and landlords across the city have worked with retailers large and small to protect jobs and New York’s tax base during this crisis,” said Stephen Meister, a lawyer representing SL Green, which leases the Herald Square store to Victoria’s Secret.

But, he added, “Victoria’s Secret is a multibillion-dollar, publicly traded conglomerate exploiting the situation in an attempt to avoid paying its contractual rent obligations.’’

The store’s parent company, L Brands, did not respond to a request for comment.

A spokeswoman for Related, the developer of Hudson Yards, said the company remained bullish on the future of retail in New York City despite the closing of Neiman Marcus and the economic downturn.

“Retail at Hudson Yards was off to a strong start before this crisis hit, and we firmly believe that fashion and retail will always remain core to the vibrancy of New York,” the spokeswoman, Kathleen Corless, said.

New York’s shutdown dealt an especially painful blow to chains like Shake Shack that were born in the city and thrived as urban oases, said Nicole Miller Regan, who follows food chains for Piper Sandler in Minneapolis.


“That’s always been their core strength from a home-field advantage,” Ms. Regan said.

Shake Shack reported on July 30 that it had experienced a 40 percent decline in revenue in the second quarter and that its stores in big cities like New York “were most impacted by the Covid-19 outbreak.”




They eventually reopened to serve takeout and deliveries, but they did not rebound as well as the company’s suburban locations that have drive-up windows where customers can avoid all but the briefest interaction, Ms. Regan said.




“The drive-through is the channel that consumers feel most comfortable with,” she said.




Like Shake Shack, Chipotle told investors that its stores in the Northeast, including New York, were underperforming the rest of the chain, said Nick Setyan, an analyst with Wedbush Securities in Los Angeles.




The main reason. Mr. Setyan said, is that “people just aren’t going to work” in much of Manhattan.




For Veggie Grill, a California-based chain of 35 restaurants, New York is “the most difficult market for us to operate in right now,” said Jay Gentile, the company’s chief operating officer.




After three years of planning, Veggie Grill, which serves plant-based sandwiches and salads, opened its first New York restaurant in the Flatiron district in December.




Now it’s struggling to keep the place open with a pared-down staff, and sales that have fallen about 80 percent from before the pandemic, Mr. Gentile said.




“In New York City, there is next to no lunch business,” he said. “No one’s coming in from Connecticut. No one’s coming in from New Jersey.”




And, there are no tourists wandering the streets, he added.




The story is different at some of the company’s restaurants on the West Coast, which are now doing as much business lately as they did a year ago, he said.




The shutdown and phased reopening of the city presented challenges that derailed Veggie Grill’s expansion plans.




Three months after opening, Mr. Gentile had to lay off all 70 of its New York employees, including a general manager who was supposed to oversee the addition of three locations in the city. In May, the company hired back about 24 of the workers with expectations that business would pick up as the city reopened.




Now, the staff is down to 16 employees, only two of whom work full-time.




“We have two hours at lunch and 2½ hours at dinner to make our money,” he said. “We’re still paying very high rent. It’s unsustainable.”




Despite all the hardships, Mr. Gentile said he’s determined to keep the doors open. “If we close New York down,’’ he said, “then we would have to close it for good.’’

Tuesday, August 11, 2020

U.S. bankruptcies on track for 10-year high with more than 100 consumer companies already filing


This article originally appeared at Marketwatch.com on August 11, 2020, at https://www.marketwatch.com/story/us-bankruptcies-on-track-for-10-year-high-with-more-than-100-consumer-companies-already-filing-2020-08-11

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U.S. bankruptcies are en route to a 10-year high with 424 companies filing as of August 9, according to S&P Global Market Intelligence. The group's analysis took into account both public and private companies with public debt. The coronavirus has hit consumer companies hard, with more than 100 filing for bankruptcy including Men's Wearhouse parent Tailored Brands Inc. TLRD, +4.57%, department store Lord & Taylor and work wear retailer Brooks Brothers. Nearly 100 bankruptcies are in the energy and industrials sector. Oil-and-gas producer Chesapeake Energy Corp. CHKAQ, +5.28% and small-engine maker Briggs & Stratton Corp. are among the 35 companies that have filed with more than $1 billion in liabilities.

Friday, August 07, 2020

Bankruptcy Subchapter V Updates

 




As many readers of our blog and emails, Congress passed a new bankruptcy law known as Subchapter V. Information about that law can be found at our blog shenwick.blogspot.com. https://shenwick.blogspot.com/2020/06/how-subchapter-v-could-save-your-small.html

New Subchapter V is similar to chapter 13 of the bankruptcy code but it can only be used by a business, not an individual.

Some creative uses of Subchapter V are  to discharge repayment of a PPP loan, to reject a commercial lease which a tenant no longer wants to occupy, or to reject unfavorable agreements.    

Subchapter V became effective on February 19, 2020 and several decisions have been announced by various bankruptcy courts which are favorable to Debtors. 

First, if a company filed bankruptcy under Chapter 11 can they convert their case to a case under Subchapter V? Yes. 

In re Progressive Solutions, Inc., No. 8:18-bk-14277-SC, 2020 WL 975464, at *5 (Bankr. C.D. Cal. February 21, 2020) (small business designated Chapter 11 debtor could retroactively proceed under Subchapter V after the case had been pending approximately 15 months).


-In re Glass Contractors, Inc., No. 20-40185 (Bankr. E.D. Tex. February 25, 2020) (small business designated Chapter 11 debtor could retroactively proceed under Subchapter V after the case had been pending approximately 1 month).

-In re Body Transit, Inc., 613 B.R. 400 (Bankr. E.D. Pa. March 24, 2020) (small business designated Chapter 11 debtor could retroactively proceed under Subchapter V when the case had been pending 48 days).

Second, can a debtor file under Subchapter V, if the debtor is not currently engaged in business? Yes, if a majority of its debt was business debt. 

-In re Wright, No. 20-01035-HB, 2020 WL 2193240, at *3 (Bankr. D.S.C. April 27, 2020) (debtor who was not currently engaged in business operations qualified as “small business debtor” where 56% of its debt amounted to residual business debt).

Third, does a Subchapter 5 Bankruptcy Trustee have the automatic right to retain counsel? No. 

-In re Penland Heating and Air Conditioning, Inc., No. 20-01795-5-DMW, 2020 WL 3124585, at *_ (Bankr. E.D.N.C. June 11, 2020) (Bankruptcy Petition #: 20-01795-5-DMW) (denying Subchapter V trustee’s application to retain counsel, which was filed as a matter of course, because the need for legal representation had not arisen). A Subchapter V trustee may not retain legal counsel automatically like a bankruptcy trustee can do in a Chapter 7 case.




Clients, accountants or lawyers who have questions regarding Subchapter V should contact Jim Shenwick at 212 541 6224  or jshenwick@gmail.com







Monday, August 03, 2020

One-Third of New York’s Small Businesses May Be Gone Forever New York Times August 3, 2002

This article originally appeared in the New York Times on August 3, 2020
https://www.nytimes.com/2020/08/03/nyregion/nyc-small-businesses-closing-coronavirus.html

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One-Third of New York’s Small Businesses May Be Gone Forever

Small-business owners said they have exhausted federal and local assistance and see no end in sight after months of sharp revenue drops. Now, many are closing their shops and restaurants for good.




William Garfield, the owner of Glady’s, a Caribbean restaurant in Brooklyn, said he decided to close after his landlord told him he would need to start paying his full monthly rent.
William Garfield, the owner of Glady’s, a Caribbean restaurant in Brooklyn, said he decided to close after his landlord told him he would need to start paying his full monthly rent.

In early March, Glady’s, a Caribbean restaurant in Brooklyn, was bringing in about $35,000 a week in revenue. The Bank Street Bookstore, a 50-year-old children’s shop in Manhattan, was preparing for busy spring and summer shopping seasons. And Busy Bodies, a play space for children in Brooklyn, had just wrapped up months of packed classes with long waiting lists.


Five months later, those once prosperous businesses have evaporated. Glady’s and Busy Bodies are closed for good and Bank Street, one of the city’s last children’s bookstores, will shut down permanently in August.


The three are victims of the economic destruction that threatens to derail New York City’s recovery from the financial collapse triggered by the coronavirus pandemic.


An expanding universe of distinctive small businesses — from coffee shops to dry cleaners to hardware stores — that give New York’s neighborhoods their unique personalities and are key to the city’s economy are starting to topple.


More than 2,800 businesses in New York City have permanently closed since March 1, according to data from Yelp, the business listing and review site, a higher number than in any other large American city.


About half the closings have been in Manhattan, where office buildings have been hollowed out, its wealthier residents have left for second homes and tourists have stayed away.


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When the pandemic eventually subsides, roughly one-third of the city’s 240,000 small businesses may never reopen, according to a report by the Partnership for New York City, an influential business group. So far, those businesses have shed 520,000 jobs.


While New York is home to more Fortune 500 headquarters than any city in the country, small businesses are the city’s backbone. They represent roughly 98 percent of the employers in the city and provide jobs to more than 3 million people, which is about half of its work force, according to the city.


When New York’s economic lockdown started in March the hope was that the closing of businesses would be temporary and many could weather the financial blow.


But the devastation to small businesses has become both widespread and permanent as the economy reopens at a slow pace. Emergency federal aid has failed to provide enough of a cushion, people remain leery of resuming normal lives and the threat of a second wave of the virus looms.


The first to fall were businesses, especially retail shops, that depended on New York City’s massive flow of commuters. And months into the crisis, established businesses that once seemed invincible, including some that had ambitious expansion plans, are cratering under a sustained collapse in consumer spending.


One business that will not reopen is Bank Street Bookstore, a nonprofit on the Upper West Side run by the Bank Street College of Education. More than 90 percent of its revenue was in-store sales, mostly to neighborhood parents, the college’s students and elementary schoolteachers.


“We had to keep reinventing the business every week to two weeks, based on new guidelines,” Caitlyn Morrissey, the store’s manager, said about the past months. “Our cornerstone was in-person sales, not web sales.”




Image“Our cornerstone was in-person sales, not web sales,” said Caitlyn Morrissey, the manager of Bank Street Bookstore, a children’s book shop that is closing for good.
“Our cornerstone was in-person sales, not web sales,” said Caitlyn Morrissey, the manager of Bank Street Bookstore, a children’s book shop that is closing for good. Credit...Amr Alfiky/The New York Times
Unlike larger firms, small businesses — bookstores, bodegas, bars, dental practices, gyms and day care centers — typically do not have the financial resources to overcome a few rough days or weeks, let alone months.


There is no clearinghouse for reliable data on the number of small businesses that have closed in New York or nationwide. The actual number of permanent closings in New York is probably higher than Yelp’s tally since it largely focuses on consumer-facing businesses. A small business is generally defined by economists as those with under 500 employees.


From March 1 to the end of April, during the height of the pandemic in New York City, businesses in the city that use the payment company Square saw their revenues drop by half, according to an analysis the company provided to The New York Times. The most significant revenue declines were in the Bronx and Manhattan, the company said.


As part of a $2.2 trillion emergency aid package adopted in March, the federal government set aside about $500 billion in small-business loans to keep workers employed and companies afloat. But business owners said they have spent all or most of their loans, paying salaries and bills, including rent.


More help for small businesses is part of negotiations as the Trump administration and Republicans and Democrats in Congress try to iron out another rescue package.


While the worst of the pandemic in the United States struck New York City first, small businesses across the country have been clobbered.


Between early March and early May, roughly 110,000 small businesses nationwide shut down, according to researchers at Harvard.


In New York, the restaurant and hospitality industry has been one of the hardest hit. More than 80 percent of the city’s restaurants and bars did not pay full rent in June, according to the NYC Hospitality Alliance.


Among those restaurants was Glady’s in Brooklyn. Its revenue plummeted by two-thirds since March, to about $12,000 per week in June. The majority of its sales were from tropical rum drinks served through a side window of the restaurant.


The owner, William Garfield, said he decided to close in June before officials started allowing outdoor dining after his landlord said he had to start paying the full monthly rent, $8,000, starting in July. Mr. Garfield said the healthy revenue from drink sales was still not enough to make ends meet.


“We were thriving,” said Mr. Garfield, 32, said about Glady’s business before March. “I would disagree with the sentiment that if someone had a thriving business they should be able to survive this.”


Mr. Garfield has another restaurant, Mo’s Original, and a bar next door, both of which he plans to keep open. His staff among his businesses has shrunk from 56 to seven.


He has spent almost all of his small-business stimulus loan, known as Payroll Protection Assistance, about $72,000. His insurance company denied his business interruption claim, citing New York State’s order that restaurants were “essential businesses” and could stay open.


“It’s the most frustrating situation because it’s not about passion anymore or the work you put in or the hours you put in,” he said. “It’s all about the mitigating circumstances that are out of your control.”


In recent weeks, “For Lease” signs have started to appear on storefronts on streets throughout New York, evidence that businesses that tried to ride out the initial months or abruptly shift to new online business models could no longer survive.


Business owners said they are at a tipping point. They have exhausted their federal, state and local aid. And while some landlords have offered breaks on rent, some business owners say others have been less flexible.


Owners say they also have to cope with constant uncertainty — not just the threat of a resurgence of the virus but also having navigate shifting reopening plans.


Restaurants in New York City were expecting to restart indoor dining in July. Owners bought food and supplies for what they thought would be larger crowds. But days before the restrictions were to be lifted, officials halted the plans, citing rising cases in other states that had allowed indoor dining.


Nearly a third of the 2,800 businesses in New York City that have permanently closed were restaurants, according to Yelp.


The remaining businesses represent a broad swath of the city’s economy, including small law firms, beauty stores, spas and cleaning companies.


“As a small-business owner, I’m surprised that more businesses have not closed yet,” said Andrea Dillon, the owner of Busy Bodies, a day care she opened on Fulton Avenue in Brooklyn in 2016.


Ms. Dillon said she noticed the ripple effect of the pandemic in late February, a few weeks before the city shut down. Parents and caregivers were canceling upcoming birthday parties and classes.


By early March, she realized that her entire business model — in which up to 70 children and adults cram into a play space with toys and live music — could not coexist with the coronavirus.


She asked her landlord for a break on her $6,000 a month rent, but he refused. Ms. Dillon said she decided in early April to close down.


“The face of New York City storefronts, they will not be forever changed,” she said. “But they will be changed for the foreseeable future.”


While her management company did not offer a break on rent, another landlord, Brian Steinwurtzel, said he was doing just that for some of his roughly 2,000 tenants in New York City, many of them small businesses. Mr. Steinwurtzel, the co-chief executive at GFP Real Estate, said he helped them apply for federal assistance and lowered their rents while business is down.


“It doesn’t make any sense to kick them out or fight with them as long as we are all working together,” Mr. Steinwurtzel said. “We believe we are all in it together, and we all have to help each other out.”


The most vulnerable small businesses in New York City might be those operated by minority or female owners. Recent studies have shown that these were largely shut out of federal aid. There are about 10,500 business that New York City has certified as minority- or female-owned.


A survey of such businesses released by the New York City Comptroller’s Office found that 30 percent of them believed they were likely to fold within the next 30 days.


Among those businesses is ThroughMyKitchen, a catering and snack company owned by Evelyn Echevarria. Before March, she derived most of her income from selling goods at street fairs and catering. Her last event was in March, catering a 120-person wedding in South Carolina.


She is surviving on unemployment benefits, but the largest portion of that, the federal stimulus of $600 per week, expired at the end of July. She also received $2,000 in assistance from the city.


“It’s been very, very hard,” Ms. Echevarria, 58, said. “The small businesses won’t be able to survive this. This, to me and many others, is devastating. It’s devastating.”


Sheelagh McNeill contributed research.

Thursday, July 30, 2020

CORONAVIRUS Coronavirus pandemic puts NYC’s struggling taxi industry on brink of ruin, data show New York Daily News July 29, 2020



This story originally appeared in the New York Daily News on July 20, 2020 ,

https://www.nydailynews.com/coronavirus/ny-coronavirus-taxi-medallion-report-covid-pandemic-20200729-mpk7gcu5ovd3zhuuhev4cfr6lu-story.htm
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Coronavirus has left the city’s yellow taxi business gasping for breath.



Ridership was down 92% in June — and just one in five of the city’s 13,500 yellow cabs even hit the streets, according to data the city Taxi and Limousine Commission released Wednesday after months of delays.

When New York became the epicenter of the outbreak in April, the amount of money yellow cab drivers grossed before expenses was down to $54 per day, a decline of 70% from the $176 per day they grossed in February. Their gross rebounded to $105 per day in June, but was still 47% lower than the $195 cabbies took in daily in June 2019.

Uber, Lyft and other app-based car services also hurt — but their drivers’ losses weren’t as steep.

Nearly 50,000 app-based drivers stopped working between February and June, which helped driver pay remain stable.

TLC data shows app-based drivers who kept working through the pandemic earned just 5% less in June than they did the same month last year. In June they were doing roughly 251,696 rides per day, nearly 14 times the 18,325 rides yellow cabs saw.

App-based drivers are still doing more business than the the 217,000 daily rides yellow cabs recorded in February, before the pandemic.

“It’s quite remarkable how Uber and Lyft have bounced back to a degree, while taxis have much less,” said Bruce Schaller, a transportation consultant. “What you see in the numbers is more of the same of what you saw pre-pandemic, with Uber and Lyft doing much better than the yellow taxis both as an industry and for drivers individually.”




A woman wears a face mask near the Port Authority in Midtown Manhattan in March.

A woman wears a face mask near the Port Authority in Midtown Manhattan in March. (Luiz C. Ribeiro/for New York Daily News)

Owners of New York City’s taxi medallions — which give drivers the exclusive right to take street hails in the busiest areas of Manhattan — were in trouble before the pandemic hit.


Medallion owners faced an average debt in January of about $700,000 — a figure that began to balloon in 2014 when the app-based companies Uber and Lyft began to siphon rides away from cabs.

Now the outlook for their business is even worse.

“If this isn’t a wake up call for the city and its leaders, then we will know who was responsible for ending this industry and I still wouldn’t say it was COVID,” said Bhairavi Desai, president of the New York Taxi Workers Alliance and a medallion owner.

More people working from home means fewer people commuting by yellow taxis. And with air travel down 85%, fewer people are visiting New York for business or tourism — meaning cabbies can’t count on fares and tips from out-of-towners.

The pandemic has forced nearly 9,000 yellow taxi drivers off the streets since March, giving them little income to pay off their piling bills.

Medallion owners in January called for the city to help find “mission-driven investors” who could help bring down some debt. Now, with the nation facing a severe recession, that option appears to be off the table.

Yellow Taxis are seen parked on 37th Street and 11th Avenue on April 6.

Yellow Taxis are seen parked on 37th Street and 11th Avenue on April 6. (Luiz C. Ribeiro/for New York Daily News)

App-based drivers who stopped working during the pandemic also face uncertainty.

Varinder Kumar, 47, stopped driving for Lyft in March out of fear for his health.

Kumar said he plans to return to work next month if Congress does not renew the $600 in weekly unemployment benefits he’s received from the federal government since April. The extra money is slated to stop coming on Friday.

Varinder Kumar, a Lyft Driver who left work in March out of fear for his health.

“I was making less with unemployment than I was when I was driving in February,” Kumar said. “But I have a family and I need to keep them safe. I won’t make the same money as I did before the pandemic if I go back to work either.”

“If things don’t work out maybe I’ll move to another state that is not so expensive,” he added.

Schaller expects many more app-based drivers will begin to return to the streets in the coming months, which could lead to a reduction in their average pay.

Unlike yellow cab drivers, if Kumar returns to work he would benefit from the city’s minimum wage and paid sick leave rules. He also won’t face the insurmountable debt that taxi medallion owners are having an even harder time paying off due to dismal ridership.


But Schaller said the crisis could bring an ugly reckoning to the yellow taxi medallion business: It could force many medallion owners who are still hanging on to file for bankruptcy, and effectively reset the entire industry.

“The question is: Does this huge drop end up basically flushing all the bad debt down the toilet?” Schaller said. “The thing about the taxi industry is, it could be healthy if you just started over. Bankruptcy could give you a fresh start.”

Monday, July 27, 2020

Landlords Jump the Gun as Eviction Moratorium Wanes New York Times July 23, 2020


This story, Landlords Jump the Gun as Eviction Moratorium Wanes. https://www.nytimes.com/2020/07/23/business/evictions-moratorium-cares-act.html) originally appeared on New York Times on July 23, 2020.




The CARES Act temporarily protects millions of renters from being kicked out of their homes for nonpayment. Filings aren’t supposed to resume until after Friday.

Legal Aid lawyers say a tenant received an eviction notice from this apartment complex in Tucker, Ga., even though she’s protected under the CARES Act.

Legal Aid lawyers say a tenant received an eviction notice from this apartment complex in Tucker, Ga., even though she’s protected under the CARES Act.Credit...Melissa Golden for The New York Times

By Matthew Goldstein July 23, 2020


The four-month pause that has protected millions of Americans from eviction cases is set to expire at the end of this week. But that hasn’t stopped landlords across the country from trying to get a head start forcing renters out.

Landlords in Tucson, Ariz., filed dozens of eviction cases last month despite the federal moratorium, which was put in place because of the coronavirus crisis. Legal aid lawyers had to go to court to stop the eviction of a San Antonio renter who had lost her job during a citywide stay-at-home order. And in Omaha, a court found that a struggling renter’s attempted eviction had violated the emergency law.

As the number of Covid-19 cases has surged across the country, a disturbing trend has emerged: landlords commencing eviction proceedings even though the CARES Act relief law currently protects about 12 million tenants living in qualifying properties.

Yolanda Jackson, a special-education paraprofessional in the DeKalb County schools outside of Atlanta, lost her job in March when the schools shut down. Ms. Jackson, a mother of two, has yet to receive an unemployment check, despite confirmation that she was approved, and hasn’t been able to pay her rent. A charitable organization agreed to cover her missed payments, but so far the manager of her complex, LaVista Crossing Apartments, hasn’t sent the necessary documentation to accept it.


“I have tried everything in my power not to get to this point,” Ms. Jackson said. “I’ve been here seven years, and they will not work with me. I am just stressed out and trying to hold it together.”

She received an eviction notice in late June, and the manager said in a court filing that the property wasn’t covered by the federal moratorium. But on Tuesday, lawyers for Legal Aid in Atlanta decided to take her case after finding that the complex is in fact listed as having a federally backed mortgage — making it covered by the CARES Act moratorium.


Yolanda Jackson, still waiting for unemployment benefits after losing her job during the pandemic, is trying to fend off eviction from LaVista Crossing.Credit...Melissa Golden for The New York Times

Lawyers for LaVista Crossing did not respond to messages seeking comment.




At least two other residents of the apartment complex have been served with eviction notices for nonpayment, said Lindsey Siegel with Atlanta Legal Aid. “Many Legal Aid clients are facing evictions simply because their unemployment benefits haven’t come through,” she said.


State and local governments have also issued eviction moratoriums, but the CARES Act is the furthest reaching, covering as many as 12.3 million renters living in an apartment complex or single-family home financed with a federally backed mortgage. But like other moratoriums, it’s about to expire: After Friday, landlords can begin filing eviction notices for failure to pay rent. It will be at least 30 days after that before any tenants are kicked out.


The moratorium has been a lifeline for millions of unemployed people, allowing renters waiting on slow-to-arrive aid to stay in their homes and make up the payments later.


But the far-ranging and hastily assembled CARES Act — which, among things, had provisions for direct relief payments, a temporary expansion of unemployment insurance and hundreds of billions of dollars in small-business aid — does not penalize landlords who violate the moratorium.



Paula Cino, a vice president for policy and government affairs at the National Multifamily Housing Council, a landlord group, said there had been some legitimate confusion at the outset with the federal moratorium and local and state eviction pauses.


“That said, I wouldn’t minimize the fact that there is the potential for bad actors in this space,” she said. “Even if they weren’t initially taking advantage of the system, they have the responsibility to better understand.”


Once an eviction case enters the legal system, it can have lasting consequences: Even a wrongfully filed action can be difficult to remove from court records and keep turning up when renters go through background checks.


“An eviction judgment stays on a tenant’s credit report for seven years, is grounds for wage garnishment and makes it more difficult for a tenant to find future housing,” said Stacy Butler, a law professor at the University of Arizona who has been tracking violations of the CARES Act.



Even with a moratorium in place, landlords have been serving eviction notices in places across the country, housing advocates say.

Even with a moratorium in place, landlords have been serving eviction notices in places across the country, housing advocates say.Credit...Melissa Golden for The New York Times

The moratorium bars the start of evictions for nonpayment for about 12 million renters in properties that have federally backed mortgages.

The moratorium bars the start of evictions for nonpayment for about 12 million renters in properties that have federally backed mortgages.Credit...Melissa Golden for The New York Times

The scope of the problem is elusive. Wrongly evicted renters might not bother trying to challenge their landlords, sometimes because of their immigration status, or because they do not know they have the right.

But wrongful evictions have been reported across the country. The Private Equity Stakeholder Project, a consumer advocacy group, found more than 100 filings in apparent violation of the CARES Act in Arizona, Texas, Florida and Massachusetts.

And in a survey of 100 legal aid lawyers in 38 states, by the National Housing Law Project, all but nine said they knew of attempts at illegal evictions in their cities. The problem prompted the group to create a draft complaint to challenge a violation of the CARES Act moratorium.




Judges have been troubled, too. The Texas Supreme Court issued a statewide order on Tuesday requiring landlords to certify whether the CARES Act applies to an eviction case, and Arizona’s Supreme Court took a similar action earlier this month.




Lawmakers in Washington are debating another relief law — including possible stimulus payments, aid for governments and schools, and a decision on what to do about the extra $600 weekly unemployment benefit — and housing advocates want it to have more help for renters.




The landlord group is in favor of help for tenants, too. The National Multifamily Housing Council said it favored the creation of an emergency rental assistance program of up to $100 billion. But the organization opposes a “protracted extension of a federal eviction moratorium.”




If the moratorium is extended in another relief bill — it is part of the $3 trillion package passed by House Democrats — there are calls from housing advocates to give it enough teeth to keep landlords from trying to skirt the rules.




“There should also be clearly delineated enforcement mechanisms and steep penalties for landlords who flout the law,” said Diane Yentel, president of the National Low Income Housing Coalition, which has set up a webpage to help tenants determine if their rental is covered by the CARES Act.



With some forms of aid slow to arrive, the eviction moratorium has allowed struggling tenants to stay in their homes.

With some forms of aid slow to arrive, the eviction moratorium has allowed struggling tenants to stay in their homes.Credit...Melissa Golden for The New York Times

Nelson Mock, an attorney with Texas RioGrande Legal Aid, said lawyers across Texas had seen “landlords trying to sidestep the issue.”




Juanita Herrera DeLeon, 57, who lost her job in March during San Antonio’s stay-at-home order, had to fend off an eviction attempt despite the CARES Act moratorium.




Soon after Ms. DeLeon lost her job, the manager of her apartment complex, the Olmos Club Apartments, tried to lock her out by installing a device on her doorknob. It was removed after she complained to the police, but she said the complex had tried other tactics to get her to leave, like posting on her front door a three-day notice to vacate the premises.




That was when she sought help from RioGrande Legal Aid. In a statement filed with her lawsuit, she said the property manager “did not leave me anything in writing about locking me out” before the first attempt.




The suit was recently settled; Mr. Mock said he was not permitted to discuss the terms.




Jason Adelstein, a lawyer for the Olmos Club Apartments, said, “The dispute was settled between the parties, my client denies any wrongdoing, and due to the terms of the settlement agreement between the parties there can be no further comment.”




The issue of CARES Act violations may be worst in Arizona.




In June alone, at least 80 eviction proceedings that were started in the local courts in Pima County appeared to violate the CARES Act, according to research by a team that included Ms. Butler, the law professor in Tucson. Many were filed by small landlords, and it’s hard to know whether the filings were intentional or a mistake, she said.




One property owner, however, was responsible for filing more than a dozen cases against residents of the Cordova Village apartment complex on Tucson’s south side.




The landlord, Equilibrium Properties, which operates several apartment buildings in Tucson and Washington, D.C., said in an emailed statement that the eviction filings had been made in error. The company, which received at least $150,000 under the Paycheck Protection Program established by the CARES Act, said it had moved to vacate the proceedings and was “rescinding all notices for nonpayment that have been given to tenants.”




“Moving forward,” the company said, “we will take every effort to comply with the CARES Act.”

Monday, July 20, 2020

Federal Aid Has So Far Averted Personal Bankruptcies, but Trouble Looms Once federal benefits dry up, highly indebted consumers could be forced to file. New York Times July 17, 2020



This story, Federal Aid Has So Far Averted Personal Bankruptcies, but Trouble Looms

Once federal benefits dry up, highly indebted consumers could be forced to file.

originally appeared in the New York Times on July 17, 2020 at

https://www.nytimes.com/2020/07/17/business/personal-bankruptcies-coronavirus.html

----------------

Federal Aid Has So Far Averted Personal Bankruptcies, but Trouble Looms
Once federal benefits dry up, highly indebted consumers could be forced to file.




Credit card debt piled up for Jess Brown, and the $600 federal unemployment supplement has kept her afloat. That benefit ends this month.

Credit card debt piled up for Jess Brown, and the $600 federal unemployment supplement has kept her afloat. That benefit ends this month.Credit...Eamon Queeney for The New York Times

Mary Williams Walsh

By Mary Williams Walsh

July 17, 2020


The United States went into the Great Lockdown with the most household debt in history, stagnant incomes for all but high earners and armies of people telling pollsters they were living paycheck to paycheck. Then, for millions, their paychecks stopped.


But instead of a stampede to the bankruptcy courts, personal bankruptcy filings — a useful, if extreme, indicator of the financial health of the American consumer — dropped sharply from April through June, even as unemployment soared, according to calculations by the American Bankruptcy Institute based on data from Epiq Global, a legal research and analytics firm.


Bankruptcy Filings and Household Debt

American households had more debt than ever when the pandemic sent unemployment soaring this spring. But bankruptcy statistics have yet to reflect the struggle to manage that debt; personal bankruptcy filings are in sharp decline.


“Filings have just gone through the floor,” said Henry E. Hildebrand III, a consumer bankruptcy trustee in Nashville. Such trustees supervise the finances of people who have declared bankruptcy and agreed to pay creditors over three to five years. Mr. Hildebrand usually gets 350 to 400 new cases a month, he said, but last month he added just 107. Nationwide, the drop in personal bankruptcy filings is the biggest in 15 years.




One reason for this counterintuitive picture: The federal government’s stimulus package, which, beginning in April, has put cash into unemployed people’s hands on a weekly basis, allowing them not just to buy groceries and pay rent, but to pay down existing debt.




As of mid-June, the Treasury Department had issued nearly $270 billion worth of stimulus payments to some 160 million people. Unemployment benefits, which normally average about $340 a week, were temporarily increased by $600 a week. Some unemployed people now have more income than when they were working.







But those benefits are set to expire this month. Congress will take up the issue of whether to extend them, along with other emergency aid, when the Senate returns next week, but if no more aid is forthcoming after July — given the double-digit unemployment rate and a resurgent virus in many parts of the country — a far more dire portrait of the financial pain of millions of Americans is set to emerge in the coming months. Bankruptcy experts say consumer bankruptcy filings will then start to rise.







The banking industry is already gearing up for a wave of defaults on everything from mortgages to credit card debt. Several of the nation’s biggest banks, including JPMorgan Chase, Wells Fargo and Citigroup, said in their second-quarter earnings reports that they had added tens of billions of dollars to their reserves to cover losses they expect to incur on business and consumer loans.




Jess Brown, 42, quit her marketing job two years ago to start a small house-sitting business, but ended up crushed under more than $40,000 of credit card debt. The card companies offered her rehabilitation plans, but only if she let them automatically withdraw the payments from her checking account. That led to overdrafts and bank penalties.




Not knowing what else to do, last October she dropped out of those plans, moved in with relatives in North Carolina, changed her phone and avoided the debt collectors. She went online to learn about budgeting and compound interest and tried to research consumer bankruptcy, too, but got mostly spam from debt-consolidation companies.




Then came the pandemic. With her patchy recent earnings record, Ms. Brown was eligible for just $135 a week of regular unemployment compensation. But the supplementary $600 has kept her afloat and given her the means to keep looking for work. Ms. Brown tries not to think what will happen if the federal relief stops.




“It only brings me emotional distress,” she said.




For the economy as a whole, which is driven by consumer spending, that extra $600 a week has been “nothing short of a game-changer,” said Matt Schulz, chief industry analyst for LendingTree, the online credit marketplace. The company recently reviewed a large sample of credit card data from 800,000 users and found that unpaid balances, late payments and usage all fell from February to May, as the federal money began to flow.




“Instead of just squeaking by, that extra money has allowed many Americans to actually pay down debt and increase savings in ways that would be unimaginable under normal terms of unemployment,” Mr. Schulz said.




But even if Congress extends the relief measures, they are a temporary salve that will do little to change the long-term patterns of income stagnation and indebtedness that have left American households so vulnerable to a financial shock. Total household debt reached $14.3 trillion in the first quarter of this year, according to the Federal Reserve Bank of New York — a record.







ImageHenry E. Hildebrand III, a consumer bankruptcy trustee in Nashville. His caseload has plunged.

Henry E. Hildebrand III, a consumer bankruptcy trustee in Nashville. His caseload has plunged.Credit...Brett Carlsen for The New York Times

Most of the economic gains from the last 30 years of economic growth, except for the Great Recession, have been going to top earners, leaving the bottom half of wage-earning America struggling — and highly indebted. Research from Gabriel Zucman and Emmanuel Saez, professors at the University of California, Berkeley, showed that in 2018, those in the bottom half carried debt that was 219 percent of their income. And that’s who was hit first and hardest by the economic shock this spring.




Nearly 40 percent of households earning less than $40,000 a year had already lost at least one job by May, according to the Federal Reserve, which has been analyzing household finances closely. That compares with just 19 percent of households earning $40,000 to $100,000, and 13 percent of households earning more than $100,000 a year.




A survey done in May by the Census Bureau showed further that younger households, and those with less education and lower earnings, were likeliest to be losing income in the shutdowns. They were also likelier to say they could not make their rent or mortgage payments and had sought forbearance.




Jenny Doling, a consumer bankruptcy lawyer in San Diego, said consumers whose debts started to snowball were generally better off seeking protection in bankruptcy right away. That’s because bankruptcy automatically halts creditors’ collection efforts, giving insolvent consumers a safe place to work out their three- to five-year repayment plans, and possibly save important assets like a house or a car.




But for many, the idea of bankruptcy comes with the threat of a stigma.




“Filing bankruptcy, for consumers, is sort of an admission that you’re a financial failure, and people just can’t admit that,” said John Rao, a lawyer at the National Consumer Law Center in Boston. “They still think that they can pull out of it somehow.”




People also get sticker shock when they hear that the cheapest consumer bankruptcy case, a liquidation, is likely to cost about $1,500. In 2005, amid concerns that spendthrift consumers were abusing the bankruptcy system, Congress tightened the laws, increasing the cost of a case and requiring legal fees to be paid upfront. The next year, the number of cases fell to around 600,000 from more than two million in 2005, but began climbing again in the aftermath of the 2008 financial crisis. Last year, 752,160 cases were filed; this year, if filings continue at their current rate, there will be 590,854 by the end of December.




While consumers struggle, they often turn to their credit cards to make ends meet, thinking they will pay down the balance when they’re called back to work. In the meantime, they make just the minimum monthly required payment.




Each month’s unpaid interest, accruing at 20 percent or more, is then tacked onto their principal balance, causing their debt to balloon even if they don’t buy anything.




“It becomes completely unmanageable,” Mr. Rao said.




That’s what happened to Ms. Brown. She had good credit when she quit her job in early 2018, and lined up a series of house-sitting gigs in Europe, using her credit cards for airfare and food as she moved from country to country. She was stunned to see how fast the interest compounded. But she also found that when she hit the maximum on one card, other issuers would give her new ones. Sometimes they came with offers of a gift card if she spent a lot more money quickly.




Realizing she had no way out, she returned to the United States.




“I had a wall of credit card debt that was waiting for me,” she said. She kept trying to make a go of her house-sitting business. Then the economy went into shutdown, and people stopped traveling. “In one day I had six cancellations,” she said.




For now, Ms. Brown said, the debt collectors have been leaving her in peace. But any day, she said, she may open the door and find a process server standing there with the papers for a bank’s lawsuit.




“It’s not a question of ‘if’ but ‘when,’ and it weighs on me heavily,” she said.

Sunday, July 19, 2020







A reader of our blog asked a very good question regarding guarantees/guaranties and our post regarding the use of bankruptcy to terminate or end commercial leases in Manhattan, New York. 

The question posed was how does one terminate or end a lease in Manhattan if the lease is guaranteed by a principal of the tenant?

Our response is below.

Our blog can be found at http://shenwick.blogspot.com/ and the post titled "Commercial leases in New York City, COVID-19, Recent Protests and a Strategy to End or Terminate Commercial Leases", dated SUNDAY, JULY 12, 2020 can be found at https://shenwick.blogspot.com/2020/07/commercial-leases-in-new-york-city.html.







First, if a commercial lease has a guarantee/guaranty, terminating the lease without addressing the underlined guarantee, is of no value to the commercial tenant.



Second, there are two types of guarantees/guarantys with respect to commercial leases, there is a general guarantee (“Guarantee” ) which generally requires that the principal of the tenant guarantee the payment of base rent, additional rent and the performance of any requirements under the lease by the tenant.



Third, the second type of guarantee/guaranty is known as a Good Guy Guarantee (“GGG”), which requires the principal of the tenant to pay rent or additional rent until the tenant vacates the space, returns the keys to the landlord and leaves the space in a broom clean condition. Many GGG have a term limit, in which the good guy guarantee expires after a certain number of years, such as 2 to 3 years if there is no default under the lease.



Fourth, after being retained to terminate a commercial lease with a guarantee, we request a copy of the guarantee and review its terms to determine if it is a guarantee, a GGG or a guarantee that has terminated for some reason such as time.



Fifth, we then ask for financial statements from the guarantor, including a balance sheet and income statement.



Sixth, we then engage in asset protection planning for the guarantor to make it more difficult for the landlord to obtain possession of the guarantor's assets if there is a default under the lease or no settlement with the landlord.



Seventh, we then begin negotiations with the landlord, providing the landlord with the pro forma bankruptcy petition for the tenant and financial information regarding the guarantor. Often times we will also prepare a pro-forma bankruptcy petition for the guarantor, although a bankruptcy filing by the guarantor is always a last resort.



Eighth, we aim to convince the landlord that by doing a workout and releasing the tenant and the guarantor, the landlord will regain possession of its premises sooner, the landlord will save on landlord tenant and bankruptcy legal fees. The exercise is similar to that which we do when there is no guarantor, but with a guarantor there is another degree of difficulty or complexity, which is not insurmountable. Additionally, based on the time value of money, a dollar paid to the landlord today has greater value than the landlord being paid over three years and a bankruptcy filing by the guarantor.



Ninth, if we are unable to do a work out with the landlord, then the tenant can file a Chapter 7 bankruptcy and the guarantor can file either a chapter 7 bankruptcy ( liquidation) or Chapter 13 bankruptcy where the landlord will be paid back over three to five years or a Subchapter V Chapter 11 bankruptcy for the guarantor (the landlord would be paid over 3 years).



While we cannot guarantee success, we have used these strategies successfully in Manhattan and for the right tenant and guarantor, they are a very effective way to terminate or end a commercial lease. Jim Shenwick 212 541 6224 jshenwick@gmail.com





Friday, July 17, 2020

Cancel Student Loans In Bankruptcy? You May Not Qualify Forbes July 16, 2020

This story Cancel Student Loans In Bankruptcy? You May Not Qualify  Forbes July 16, 2020 originally appeared
https://www.forbes.com/sites/zackfriedman/2020/07/16/student-loans-bankruptcy/#227c03822cb4
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Cancel Student Loans In Bankruptcy? You May Not Qualify
Zack Friedman

Can you discharge your student loans in bankruptcy? A new proposal says yes, but not everyone qualifies.

Here’s what you need to know.

Student Loans
Rep. Mary Gay Scanlon (D -PA) introduced new legislation today that would make it easier for you to discharge student loans in bankruptcy if you are struggling financially and have been impacted by Covid-19. Here’s the good news: the COVID-19 Student 5 Loan Relief Act of 2020 would apply to both private student loans and federal student loans, and be available to all Americans impacted by Covid-19.

Discharge student loans: the fine print
Now, here’s the fine print: you may not qualify to discharge your student loans in bankruptcy under this proposal. According to the bill, to qualify:

your income has been reduced due to the Covid-19 pandemic; or
the primary income earner in your family died; or
you have become permanently disabled
Most Popular In: Personal Finance

Second Stimulus Check Income Limit Will Likely Be Higher Than $40,000
New Stimulus Package May Be Introduced Next Week
Proposal: Discharge Student Loans For Those Harmed By Pandemic And Recession
Now, lets’ break down the first requirement based on the language on the bill. The legislation requires a reduction in income due to Covid-19. What does this mean? Here’s what the bill says. It’s not enough that your income simply declined. Specifically, to qualify to discharge your student loans in bankruptcy

If you make less than this pre-tax income...your income must decline by at least this percentage...

< $75,000 Income: at least 20% decline
$75,000 - $125,000 Income: at least 30% decline
$125,000+ Income: at least 40% decline
Plus, the relevant time period is “beginning January 21, 2020 and extending until 60 days after the duration of the Covid-19 emergency or the duration of the Covid-19 outbreak or as a result of the COVID-19 outbreak.” Even if you wouldn’t qualify under this specific proposal, you still may be able to discharge your student loans in bankruptcy through the normal course based on your financial situation. Traditionally, unlike mortgages or credit card debt, student loans cannot be discharged in bankruptcy. There are exceptions, however, namely if certain conditions regarding financial hardship are met.

Cancel student loan debt
This latest bankruptcy legislation is part of an ongoing effort to provide more student loan relief, particularly as as result of Covid-19. For example, Student Debt Crisis, a leading student loan advocacy not-profit, recently sent Sen. Elizabeth Warren (D-MA) a petition for student loan forgiveness with 1.2 million signatures. Warren, who proposed student loan forgiveness for 95% of Americans, has been a proponent of student loan forgiveness and student loan debt cancellation. Scanlon’s legislation would make it easier by amending Chapter 11 of the U.S. Bankruptcy Code, although the requirements to qualify may be challenging for some. Student loan forgiveness has been a hot topic in Congress, particularly in the wake of the Covid-19 pandemic. For example, former Vice President Joe Biden reiterated his support for student loan forgiveness and his support to discharge student loans in bankruptcy. Other members of Congress have proposed legislation to forgive student loans, although none have become law.

Will student loans be included in the new stimulus?
Maybe. It’s unlikely that this bill or a similar bill to discharge student loans in bankruptcy will be included in the new stimulus. The new stimulus package may be introduced next week. Currently, the focus includes second stimulus checks, state and local aid, unemployment benefits or a return-to-work bonus and liability protection due to Covid-19 for businesses. However, don’t expect student loan forgiveness to be included. However, Congress may extend student loan relief under the Cares Act, or Congress could allow the student loan relief to expire as planned on September 30, 2020. That said, student loans have not been the focus among Republicans (who control the Senate) among other high priority issues. There is bipartisan support to make student loans dischargeable in bankruptcy, but there may not be consensus to act until after the election in the next Congress.

The Eye of the Bankruptcy Storm New York Times July 17, 2020



This post appeared in the New York Times on 7/17/20

https://www.nytimes.com/2020/07/17/business/dealbook/bankruptcy-filings-pandemic.html

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The Eye of the Bankruptcy Storm




Chesapeake Energy was among the companies to file for bankruptcy protection in recent weeks.Credit...Brett Carlsen/Reuters
July 17, 2020Updated 7:28 a.m. ET








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The pendulum swings back toward fear

As the pandemic persists, more and more companies have filed for bankruptcy protection, following in the footsteps of Hertz, J. Crew and Neiman Marcus. But financial restructuring advisers — the bankers and lawyers who help troubled companies repair their balance sheets or slog through Chapter 11 — say that they expect filings to accelerate. If anything, we’re now in the lull before the storm.

About 3,600 companies filed for Chapter 11 in the first half of 2020, more than any year since 2012, according to the American Bankruptcy Institute. The past few weeks have brought filings by the fracking pioneer Chesapeake Energy, the Japanese home goods company Muji USA and the retailer New York & Company.




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But cases dropped last month. Why? Advisers cited the federal government’s programs for stabilizing the economy and credit markets, as well as efforts by companies to bolster their cash by drawing down their credit lines and issuing new bonds. (Businesses worldwide have sold $2.1 trillion worth of bonds so far this year, up 50 percent from the year before.) Earlier-than-expected reopenings have bolstered some businesses’ performance, allowing them to bring in some sales — critical to servicing their debts.



Yet as coronavirus cases surge again, an uptick in filings may follow. The rise in infections brings the prospect of renewed lockdowns and shakes consumer confidence, testing companies’ abilities to survive another spell of little to no revenue. “We’re starting to see the pendulum swing back toward fear again,” William Hardie, a managing director in Houlihan Lokey’s financial restructuring group, told DealBook’s Michael de la Merced.

And what comes next could be ugly. Many companies that saved themselves by borrowing more money are now in a bind: They have mortgaged nearly all their available assets, leaving little wiggle room.


• Creditors are willing to give companies concessions on existing debt covenants — especially since they don’t want to recognize any of their loans as impaired, hurting their own balance sheets — but if borrowers need more money, they may find lenders are unwilling or unable to front the cash.

Where to expect the next wave: While retailers and energy companies have dominated the first wave, restructuring experts say the next round of filings could hit the travel industry hard, including airlines, hotels and firms that lease planes to carriers.



More companies will be taken over by lenders, who will convert their loans into equity. So far, advisers say, talks between debtors and creditors have been sanguine, with relatively few of the disagreements that often complicate Chapter 11 cases. “There’s no finger-pointing,” Mr. Hardie said. “Everyone realizes this is no one’s fault.”




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The C.D.C. has extended a ban on cruise ships until Sept. 30.Credit...Alexandre Meneghini/Reuters

Tuesday, July 14, 2020

‘I Can’t Keep Doing This:’ Small-Business Owners Are Giving Up New York Times July 13, 2020


More owners are permanently shutting their doors after new lockdown orders, realizing that there may be no end in sight to the crisis.





Gabriel Gordon shuttered his popular barbecue restaurant in California after the state saw a resurgence of coronavirus cases and imposed new restrictions.Credit...Horatio Baltz for The New York Times



By Emily Flitter
July 13, 2020



On the last Friday of June, after Gov. Greg Abbott of Texas said that bars across the state would have to shut down a second time because coronavirus cases were skyrocketing, Mick Larkin decided he had had enough.

No matter that Mr. Larkin, an owner of a karaoke club in Wichita Falls, Texas, had just paid $1,000 for perishable goods and protective equipment in anticipation of the weekend rush. No matter that the frozen margarita machine was full, that 175 plastic syringes with booze-infused Jell-O were in place, or that there were masks for staff members and hand sanitizer for guests.

That day, June 26, Mr. Larkin and his partner dumped what they had just bought into the trash and decided to close their club, Krank It Karaoke, for good.

“We did everything we were supposed to do,” Mr. Larkin said. “When he shut us down again, and after I put out all that money to meet their rules, I just said, ‘I can’t keep doing this.’”



It was harrowing enough for small businesses — the bars, dental care practices, small law firms, day care centers and other storefronts that dot the streets and corners of every American town and city — to have to shut down after state officials imposed lockdowns in March to contain the pandemic.

But the resurgence of the virus, especially in states such as Texas, Florida and California that had begun to reopen, has introduced a far darker reality for many small businesses: Their temporary closures might become permanent.


Nearly 66,000 businesses have folded since March 1, according to data from Yelp, which provides a platform for local businesses to advertise their services and has been tracking announcements of closings posted on its site. From June 15 to June 29, the most recent period for which data is available, businesses were closing permanently at a higher rate than in the previous three months, Yelp found. During the same period, permanent closures increased by 3 percent overall, accounting for roughly 14 percent of total closures since March.


Researchers at Harvard believe the rates of business closures are likely to be even higher. They estimated that nearly 110,000 small businesses across the country had decided to shut down permanently between early March and early May, based on data collected in weekly surveys by Alignable, a social media network for small-business owners.

Christopher Stanton, an associate professor at Harvard Business School who was one of the researchers, said it was difficult to accurately gauge how many small businesses were closing because, once they shut their doors for good, the owners were hard to reach. He added that it could take up to a year before government officials knew the true toll the pandemic was taking on small businesses.



At the moment, 39 states continue to record growing numbers of new cases daily.

It is not clear how many of the businesses Yelp is tracking count as “small” — defined by the Small Business Administration as those with 500 or fewer employees. But the company found that, among the tracked businesses — which include restaurants, retailers and other independent, consumer-facing operations — retail businesses, led by beauty supply stores, have been closing at the highest rate since the pandemic began. Restaurants are the next hardest-hit group.




ImageNick Muscari decided to permanently close Nick’s Sports Grill and Lounge in Lubbock after Texas’s second round of virus closures.Credit...Dylan Cole for The New York Times


Small businesses account for 44 percent of all U.S. economic activity, according to the S.B.A., and closures on such an immense scale could devastate the country’s economic growth. If they were grouped together, small businesses would be among the country’s biggest employers, said Satyam Khanna, a resident fellow at the Institute for Corporate Governance and Finance at New York University School of Law who has written about the effects of the pandemic on small businesses.

So when small businesses close en masse, an entire sector of the economy suffers, Mr. Khanna said. There is lower cash flow, higher debt and more unemployment. “That leads to a big drag on the eventual recovery,” he said. “Because they are such an important source of jobs, losing them the way we are losing them now is going to make things far worse than they otherwise need to be.”

Because small businesses depend heavily on foot traffic and operate on thin margins, they are especially vulnerable to the ripple effects of a widespread shutdown.

For nearly two decades, Rich Tokheim and his wife sold sports memorabilia — hats, T-shirts, coffee mugs and other trinkets — to fans in Omaha at their store, The Dugout. Since 2011, The Dugout has occupied prime real estate across the street from the city’s 24,000-seat baseball stadium, which usually hosts the College World Series each spring.

The 2020 World Series was canceled in March. In the weeks that came after, other sporting events were scrapped — starting with college sports and extending to professional leagues that have struggled to relaunch their activities.



Mr. Tokheim, 58, watched his business fall off with growing unease, but it was only after a friendly chat with a retired college athletic director in May that the gravity of his situation hit home. He was already worried about the state of the virus in Nebraska, and whether there was enough tracking. Then the athletic director predicted that if college football was canceled for the year, it would be the end of Division I sports as a whole.

“That really put me in overdrive,” Mr. Tokheim said. He negotiated an early exit on his store lease and announced a clearance sale at the store. The Dugout closed for good on June 30.

The government’s Paycheck Protection Program, rolled out in April and administered by the S.B.A., earmarked $660 billion of aid for small businesses, but stipulated that a loan would be forgiven only if most of it was used to pay employee wages for eight weeks. The rules were later relaxed, but in a sign of how many small-business owners did not feel confident that they would be on steady ground by the time repayment was due, roughly $130 billion of aid money remained untapped when the program ended in June.

Even for those who took a P.P.P. loan, survival is no guarantee. Nick Muscari, a 38-year-old restaurateur in Lubbock, Texas, received one. His restaurant, Nick’s Sports Grill and Lounge, had been the culmination of Mr. Muscari’s life’s work — his years of toil as a waiter, pizza cook and manager at restaurants and bars beginning in his teenage years. Three years ago, he bought out the two partners who helped him start the restaurant in 2010. He considered it a crowning achievement, but to do so, he had to borrow money. He still owes a bank $80,000.




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Mr. Muscari still owes a bank $80,000 on his now-shuttered restaurant.Credit...Dylan Cole for The New York Times

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Nick’s Sports Grill and Lounge is now up for rent.Credit...Dylan Cole for The New York Times
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“We never had anybody catch the virus in our establishment,” Mr. Muscari said.Credit...Dylan Cole for The New York Times


Mr. Muscari tried to ride out the spring lockdown that temporarily shuttered his restaurant with the help of the P.P.P. money. But when the state’s second closure order took effect on June 26, he decided to close for good.



“It had been in the back of our minds, just like, you know, if this happens again, can we make it?” Mr. Muscari said. “We were following all the rules and people were spread out. We never had anybody catch the virus in our establishment."

Mr. Muscari, with the business closed and its 30 employees jobless, has nothing left but his house and his car. He also expects his landlord to try to sue him for the eight years’ worth of rent he is contracted to pay on his defunct restaurant’s space.

Many small businesses are also finding it onerous keep up with constantly changing local guidelines, while others are deciding that no matter what their local officials say, it just is not safe to keep going. Gabriel Gordon, the owner of a tiny but popular barbecue restaurant in Seal Beach, Calif., decided to close permanently after studying the restaurant’s layout. He had determined that the kitchen would never be safe for multiple staff members to occupy at once while the virus was still active in the area.

“It’s essentially two hallways that are 11 feet wide,” Mr. Gordon said, describing the shape of the restaurant, Beachwood BBQ. “There are food trucks that are larger than my kitchen.”

Whatever the specific reasons may be for each closure, Justin Norman, Yelp’s vice president of data science, said that the federal government should offer small businesses more help. Mr. Norman said Yelp was concerned about the effects of small-business closures, especially those owned by people of color, on society. Yelp, however, also has a financial interest in maintaining a robust small-business environment, because it relies heavily on advertising by businesses on its platform.

“The time is right now to inject more capital or we may lose them forever,” Mr. Norman said. “It’s going to make our economies worse, it’s going to make our communities worse.”