Practical Considerations about Accusations of Business Fraud and Bankruptcy
Sept. 1, 2014
When a small business fails, allegations of fraud against the owner are not uncommon. But they are often handled well in bankruptcy.
There are practical reasons why the owner of an unsuccessful small business tends to be accused of causing or contributing to the failure through fraud or misuse of funds. If you are considering closing down your business or have already closed it down, and are getting such accusation or you fear getting them, you want to know how are those accusations going to be handled if you file a bankruptcy case.
Reasons Why Creditors of Business Owners Raise Fraud Objections
A bankruptcy filed after the failure of a business can stir up more objections than a regular consumer bankruptcy case for a number of practical reasons:
The relationship between the former business owner and his or her creditor is often more personal and emotional than a simple debtor-creditor relationship. Consider the relationships between the former business’s partners, between the owner and investors who were friends or relatives, or between the owner and an ex-spouse. Because of the mix of business and personal in these relationships, the business failure is taken more personally, with more of a tendency by the creditor to feel cheated. So the decision whether to fight the discharge (legal write-off) of the debt in bankruptcy is made less as a cost-benefit business decision than an emotional one.
The business context tends to provide many all-too-convenient opportunities for the debtor to blur the rules or act unscrupulously, especially when financially “desperate.”
If a business owner takes certain actions in good faith which could have resulted in success, but the business does not succeed, those same actions can look questionable in hindsight.
In these kinds of disputes, there is often more money at stake than in a consumer bankruptcy. At the same time these kinds of creditors, unlike conventional commercial creditors, may not feel that they just can take the loss and walk away. So they tend to fight even if it’s not such a wise business decision to do so.
What Happens in Bankruptcy?
So if you have been accused by a former business partner, investor, or similar business creditor of some sort of business fraud, or fear that you will be so accused, does this mean that you should avoid filing bankruptcy?
You need to discuss your unique circumstances thoroughly with your bankruptcy attorney, likely together with your business or litigation attorney if you have one.
But in general, perhaps surprisingly, for some practical reasons these kinds of accusations often go away, or at least are resolved relatively quickly, when you file bankruptcy.
Reason #1: The “Automatic Stay”
The filing of your bankruptcy case stops, at least temporarily, any litigation against you that is already in progress. And it stops, again at least temporarily, a new lawsuit from being filed against you (and against your business if it is a sole proprietorship). This pause in the litigation gives your creditor the opportunity to reconsider whether continuing to pursue you would really be worthwhile.
Reason #2: Much Harder to Make a Case against You
Your bankruptcy filing changes the legal issues in your favor. It’s more difficult for your creditor to prevail against you. It’s usually easy enough outside of bankruptcy for a creditor to prove that you owe money. But once in bankruptcy, the debt or claim will be discharged—forever written off—unless the creditor establishes much more: that the debt is based on some rather serious bad behavior by you. The creditor has to convince the bankruptcy judge that you owe the debt because you engaged in fraud, misrepresentation, embezzlement or theft, fraud in a fiduciary capacity, or by intentionally and maliciously injuring the creditor or his or property. Much more difficult to do, and unless there is a good case against you most creditors will realize that they are wasting their time and money to try.
Reason #3: Revealing Your Actual Finances
The documents you file under oath in your bankruptcy case should show your disgruntled creditor that even if the case against you succeeded, you don’t have the money to pay a judgment. Perhaps more important, it should show his or her attorney that it’s not economically sensible. Sensible people would think twice paying thousands of dollars in attorney fees and cost on a case that could be very hard to win, and then at best gets them a judgment that could never be collected. Or if it could be collected, it would be so slowly that the risk and effort would simply not be worthwhile.
Although there are reasons for some small business bankruptcies to be contentious, filing bankruptcy can give you big advantages if you are being pursued for an alleged business fraud. You decrease your creditor’s chances of winning and give him or her good reasons to stop pursuing you.