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Extension of family farmer bankruptcy provisions : hearing before the Subcommittee on Economic and Commercial Law of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session on H.R. 416 ... March 10, 1993 online

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EXTENSION OF FAMILY FARMER
BANKRUPTCY PROVISIONS



S9/' t'^^ ' ^




!






HEARING „ ,

BEFORE THE ' ^^^ ;

SUBCOMMITTEE ON - — 1

ECONOMIC AND COMMERICAL LAW y^^ ,

OP THE ^

COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION
ON

H.R. 416

TO EXTEND THE PERIOD DURING WHICH CHAPTER 12 OF TITLE 11 OF
THE UNITED STATES CODE REMAINS IN EFFECT; AND FOR OTHER
PURPOSES



MARCH 10, 1993



Serial N9. 3




t^i\ n \ 2333



BOSTON PUBLIC LIBRARY

GOVERNMENT DOCUMENTS DEPARTMENT



Printed for the use of the Committee on the Judiciary



67-706 CC



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-041097-5



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«Y/ «



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EXTENSION OF FAMILY FARMER
BANKRUPTCY PROVISIONS^nT75r



HEARING! aug'iTi^I

BEFORE THE J ' ^ '^^^ ;

SUBCOMMITTEE ON " J

ECONOMIC AND COMMERICAL LAW ijQ^^s,



OF THE



COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION

ON

H.R. 416

TO EXTEND THE PERIOD DUREMG WHICH CHAPTER 12 OF TITIJ^: 11 OF
THE UNITED STATES CODE REMAINS IN EFFECT; AND FOR OTHER
PURPOSES



MARCH 10, 1993



Serial N9, 3

1




APk n ^ 2333



BOSTON PUBLIC LIBRARY

GOVERNMENT DOCUMENTS DEPARTMENT



Printed for the use of the Committee on the Judiciary



67-706 CC



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-041097-5



COMMITTEE ON THE JUDICIARY



JACK BROOKS,



DON EDWARDS. California
JOHN CONYERS. JR.. Michigan
ROMANO L. MAZZOLl. Kentucky
WILLIAM J. HUGHES, New Jereey
MIKE SYNAR. Oklahoma
PATRICIA SCHROEDER. Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, MaBsachusctts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California



Texas, Chairman
HAMILTON FISH, JK.. New York
CARLOS J. MOORHEAD. California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER, JH..

Wisconsin
BILL McCOLLUM. Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF. New Mexico
JIM RAMSTAD, Minnesota
ELTON GALLEGLY, California
CHARLES T. CANADY, Honda
BOB INGLIS, South Carolina
BOB GOODLATTE, Vin^nia



Jonathan R. Yahowsky. (ifneral Counsel

Robert H. Brink. Deputy (ieneral Counael

Alan F. COFKKY. Jr., Minority Chief Counsel



i



SUBCOMMITTKK ON ECONOMU^ AND CoMMKKCIAL IwW
JACK BROOKS, Texas. Chairman



JOHN CONYERS, Jr., Michigan
MIKE SYNAR. Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
HOWARD L. BERMAN, California
RICK BOUCHER. Virginia
ROBERT C. SCOTT. Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina



HAMILTON FISH, Jr., New York
ELTON GALLE(;LY, California
CHARLES T. CANADY, Florida
BOB INGLIS, vSouth Canilina
BOB GOOI)1j\TTE, Virwnia
CARLOS J. M(X)RHEAI), Cahfornia



Cynthia W. Mkaix)w, Counsel

GhX>RCK p. SI,()VK:r, Assistant Counsel
PKRRY AI'KIJJAUM, Assistant Counsel
CaRRIK Bk;1)W>;LI,, Assistant Counsel

PktvM J. Lkvinson, Minority Counsel



(II)



CONTENTS



HKARING DATK



March 10. 1993 ""[

TKXT OF HI LI,
H.R. 416 2

OPKNINC STATKMKNT

Brooks, Hon. Jack, a Representative in Congress frnm the State of Texas,

and chairman, Subcommittee on Kconomic and (Commercial l>aw 1

WITNKSSKS

Plagge, JefT, executive vice president. First State Bank of Webster City,

LA, on behalf of the American Bankers Association G

Underwood, Charles, attorney, Oklahoma City, OK 6

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINC

Plagge, Jeff, executive vice president. First State Bank of Webster City,

lA, on behalf of the American Bankers Association: Prepared statement 9

Synar, Hon. Mike, a Representative in Congress from the State of Oklahoma:

Statement 5

APPENDIX

Matkkiai, Suhmittki) kok tmk Hkakinc Rk(X)ki)

Plaggc, Jeff, executive vice president, First State Bank. Webster City. lA:
Study entitled, "Bankruptcy Costs Under Chapter 12 " R<)bt>rt N. Collender,
Agriculture and Rural Economy Division, Economic Research Service, U.S.
Department of Agriculture, Staff Report No. ACES 9210 2f>



(III)



EXTENSION OF FAMILY FARMER BANKRUPTCY

PROVISIONS



WEDNESDAY, MARCH 10, 1993

HOUSK OK Rki'rkskntativks,

SUUCOMMIITKK ON E(X)N()MI(' AND COMMKIU^IAI, LaW,

COMMIITKK ON THK JUDK^IAItY,

Washington, DC.

The subcommittee met, pursuant to notice, at 11:11 a.m., in room
2141, Ravburn House Office Building, Hon. Jack Brooks (chairman
of the subcommittee) presiding.

Present: Representatives Jack Brooks, Mike Synar, Robert C.
Scott, Melvin L. Watt, Hamilton Fish, Jr., Elton Gallogly, Charles
T. Canady, and Bob Goodlatte.

Subcommittee staff present: Perry Apclbaum, assistant counsel;
Carrie Bedwell, assistant counsel; Catherine S. Cash, research as
sistant; and Deloris L. Cole, ofTice manager; full committee staff
present: Jonathan R. Yarowsky, general counsel; and Peter J.
Levinson, minority counsel.

OPENING STATEMENT OF CHAIRMAN IIROOKS

Mr. Brooks. The subcommittee will come to order.

The committee's other item of interest this morning is H.R. 416,
to extend chapter 12 of title 11 of the United States Code for an
additional 5 years. Chapter 12, scheduled to sunset October 1 of
this year, allows farmers to reduce the amount of their secured
debt to the credit value of the collateral while continuing in control
of their farms. In exchange, the farmers are reouired to commit all
of their disposable income to repaying their creaitors during a debt
adjustment period.

I commend the gentleman from Oklahoma, Mr. Synar, who has
been the driving force to make sure that this important chapter of
the bankruptcy laws continues to function efTicicntly and fairly.

IThebill, H.R. 416, followsil



(1)



103d congress
1st Session



H.R.416



To extend the period during which chapter 12 of title 11 of the United
States Code remains in effect; and for other purposes.



IN THE HOUSE OF REPRESENTATIVES

January 5, 1993

Mr. S'i'NAR (for himself and Mr. GraKDY) introduced the following bill; which
was referred to the Committee on the Judiciary



A BILL

To extend the period during which chapter 12 of title 11
of the United States Code remains in effect; and for
other purposes.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. EXTENSION OF TIME PERIOD.

4 The first sentence of section 302(f) of the Bank-

5 ruptcy Judges, United States Trustees, and Family Farm-

6 er Bankruptcy Act of 1986 (Public Law 99-554; 100

7 Stat. 3124) is amended by striking "1993" and inserting

8 "1998".



2

1 SEC. 2. FILING OF PLAN.

2 Section 1221 of title 11, United States Code, is

3 amended by striking "an extension is sul)stantially justi-

4 fied" and inserting "the need for an extension is attrib-

5 utable to circumstances for which the debtor should not

6 justly be held accountable".

o



•HR 416 IH



Mr. Brooks. We look forward to hearing testimony from two dis-
tinguished witnesses regarding the operation of chapter 12. We do
have both witnesses here, Mr. Plagger

Mr. Pi>ACOK. Yes.

Mr. Brooks. This morning, we will ask the witnesses to appear
jointly. I do not have an opening statement except for that that I
have made.

Mr. Fish, do you have an opening statement?

Mr. Fish. Just very brief, Mr. Chairman.

I also am pleased to welcome our witnesses to this hearing on
legislation to extend the sunset on chapter 12 of the Bankruptcy
Code. Today we will be receiving testimony from an attorney expe-
rienced in family farmer cases and a banker knowledgeable about
agricultural lending practices.

In the 99th Congress, I had the opportunity to participate ac-
tively in the congressional effort to enact Bankruptcy Code relief
for family farmers facing fmancial distress. The new chapter 12
was designed to provide a flexible mechanism for family farmers to
keep their farms and contribute a portion of future income to the
payment of obligations. By making bankruptcy law more respon-
sive to the plight of family farmers, we hoped to help farm commu-
nities around the country.

Our hearing today, together with the record of a similar hearing
last year, gives the subcommittee an opportunity to assess how the
family farmer bankruptcy chapter is working. In that connection,
I ask the witnesses to ^we us their suggestions for possible amend-
ments to chapter 12, including comments on H.R. 416's proposed
change in Bankruptcy Code section 1221. This will assist us great-

ly-

Thank you, Mr. Chairman.

Mr. Brooks. Thank you very much.

Mr. Scott, any questions, any comments at this point, opening
statements?

This morning, I am asking the witnesses to appear jointly. To
save time I would ask both of you to limit your statement to 5 min-
utes. When you have completed your statements, the committee
will address questions to both of you. Prepared statements will be
made a part of the record, the complete statement.

Our first witness is Charles Underwood, an attorney from Okla-
homa City, OK.

Mr. Undkrwooi). I am Charles Underwood, Your Honor.

Mr. Brooks. Sit down and relax, you don't have to be sworn. We
have absolute faith in you.

Mr. ScoiT. Mr. Chairman, did Representative Synar have an op-
portunity to speak?

Mr. Brooks. He did, but he did not exercise that.

I Mr. Synar's statement follows:!



MIKl SYNAH ..„.



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QPEMINQ BTATEMEWT BY CQNQRE88MAW MIKE BYWAR (D-OK)
BBrORE THE BnBCQMMITTEB QM ECONOMIC AMD COMMERCIAL LAW
HEARINq QM H.R. 41t. LEQIBLATION TO EXTEND CHAPTER 12
or THE n.B. BANKRDPTCY CODE

Good morning Mr. Chainnan and thank you for convening
today's hearing on H.R. 416. This bill axtends Chapter 12 of the
Bankruptcy Code for five years, thereby guaranteeing that
farmers continue to receive Chapter 12 's protections for the
forseeable future. Since its inception in 1986, Chapter 12's
great success is that it has prevented us from callously throwing
generations of family farmers off the land without first allowing
them the opportunity to reorganize and reestablish themselves as
viable components of our nation's agricultural community.

When we originally enacted Chapter 12, the country was in
the midst of a great farm crisis. Family farms were being
foreclosed at an alarming rate and farm values plummeted as
properties flooded the market. Huge losses were incurred by
agricultural lenders as they were forced to sell farm collateral
in extraordinarily depressed markets. Worst of all, farmers
could find no relief in the bankruptcy code. At the time
Chapters 11 and 13 were the only possible havens, and both were
unavailable to the farmer. Farmers could not meet the adequate
protection requirements of 11 and 13's low debt limits were
prohibitive. Fortunately, Congress recognized this problem and
enacted Chapter 12. The new chapter allowed family farmers to
keep their farms, reorganize their affairs and set up a
reasonable payment plan for creditors out of future income.

Today we consider the extension of 12 and critics argue
that there is no need for Chapter 12 because the farm crisis has
ended. I disagree. There will always be bad weather, crop
disease, harmful pests, wavering prices and rotten luck to cause
farm bankruptcies. Moreover, the peculiarities of farming that
precluded farmers in 1986 from seeking relief under Chapters 11
and 13 still exist today. Consequently, it is critical that we
act quickly to extend Chapter 12. Without this section, there is
no recourse in the Code for farmers faced with losing their farm,
their work and their way of life.



Mr. Brooks. The next witness will be Jeff Plagge, he is the exec-
utive vice president for the First State Bank in Webster City, lA,
and we welcome you both, and we would start with you, Mr.
Underwood.

STATEMENT OF CHARLES UNDERWOOD, ATTORNEY, OKLAHOMA

CITY, OK

Mr. Underwood. Sir, I have a very short statement. I want to
say that chapter 12 has been an extraordinary tool in reorganizing
the family farmer. It has given us the ability to write the debt
down to current market values. There are several things that I feel,
and some of my other practicing attorneys and the local judges feel,
should be done to chapter 12, out I think extending it is extraor-
dinarily important in that it gives us the ability to work with these
people and Keep them on the farm.

I apologize to you all for not having a prepared written state-
ment. I was in trial all last week, didn't realize I was coming out
to testify until Friday or thereabouts, but I will be happy to answer
any questions you all may have dealing with what actually hap-
pens in chapter 12's, and different factual scenarios.

I am told that I had a majority of the chapter 12's in the State
of Oklahoma in the past few years. That I don't know because I
just go from one case to another and just try and get them done.
The chapter 12 has been an exceptional tool in dealing with the re-
organization of the family farmer, and it can't be done in 11 and
it can't be done in 13.

Other than that, I have nothing, other than to answer your ques-
tions, sir,

Mr. Brooks. Mr. Plagge.

STATEMENT OF JEFF PLAGGE, EXECUTIVE VICE PRESIDENT,
FIRST STATE BANK OF WEBSTER CITY, lA, ON BEHALF OF THE
AMERICAN BANKERS ASSOCIATION

Mr. Plagge. Thank you.

Mr. Chairman and members of the subcommittee, I am Jeff
Plagge, executive vice president of the First State Bank in Webster
City, and also I am currently the vice chairman of the ABA Agri-
cultural Bankers Executive Committee. ABA represents approxi-
mately 90 percent of the industry's total assets, approximately 75
percent of our members are community banks with assets of less
than $100 million.

Because of time considerations today, I will summarize my testi-
mony that we gave you in written form. Mr. Chairman, the ABA
wishes to first commend this committee for holding a hearing on
H.R. 416, which extends chapter 12 for 5 additional years. Because
it is important for rural communities, this relatively new bank-
ruptcy title needs to be examined carefully.

We particularly appreciate this hearing because ABA cannot sup-
port a simple extension of chapter 12. We believe that this law has
not served rural communities well, and has adversely affected the
availability of credit in those communities.

At the same time, however, the ABA also wishes to commend the
efforts of Congressman Synar, who has been willing to address the
procedural delay problems faced by lenders under the current chap-



ter 12 rules. The changes are reflected in H.R. 416, which the
banking community beHeves is an important first step toward cor-
recting the current inequities under chapter 12.

In 1986, chapter 12 of the Bankruptcy Code was established to
provide a simplified and expedited form of reorganization for debt-
ors that qualify as family farmers. It was intended to provide tem-
porary relief to family farmers and to provide a fast procedure for
prompt reorganization. Unfortunately, the expedited procedure
process has not worked well in rural America.

Farmers choosing bankruptcy under chapter 12 have frequently
delayed the process for filing suitable reorganization plans, because
creditors are precluded from filing their own proposed plan when
the delays occur, as they can under chapter 11 proceedings. Chap-
ter 12 cases are often delayed years before an approved plan is in
place. For this reason, ABA is encouraged by section 2 of H.R. 416,
which seeks to clarify the extent to which chapter 12 filings can be
extended.

Unfortunately, the constant delays are not the only problem with
the current law. For instance, because the creditors are precluded
from exercising many of the rights established under chapter 11,
such as shared appreciation and lost opportunity, the availability
of credit for beginning and undercapitalized farmers remains ad-
versely affected. Clearly this was not the original intent of chapter
12.

Furthermore, currently under chapter 12, bankers and individual
creditors are forced again, without a vote provided under chapter
11, to cramdown to current market values the value of the secured
loan. While cramdown does exist under chapter 11, the option for
creditors to elect shared appreciation also exists, allowing bankers
to recover some of those losses.

Conversely under chapter 12, the banker cannot recoup any-
thing. As the market value for agricultural land tumbled through
the 1980's, bankers and other creditors, and individuals who had
extended credit to those who filed bankruptcy, suffered large and
irrevocable losses. While the value of the land has rebounded in re-
cent years, and while many farms and ranchers have returned to
profitability, those creditors have been precluded from sharing in
the appreciation of those assets.

Bankers are not alone in expressing the unfairness of this situa-
tion. Last June before this subcommittee, Richard Bohanon, the
Chief Judge of the U.S. Bankruptcy Court for the Western District
of Oklahoma, suggested that some form of shared appreciation
would improve the chapter 12 statute, citing similar provisions cur-
rently utilized in chapter 11.

The ABA is in total agreement with Judge Bohanon's assertions
concerning the fairness of shared appreciation. The inability of the
creditors to share in the appreciation of these assets results in di-
rect loss of funds for capital availability for borrowers in rural
America.

As a result, we recommend that chapter 12 be further amended
to allow creditors to share in an appreciated value of an asset up
to the original amount lost during bankruptcy. Such a provision
would also greatly reduce the current reluctance of lenders to pro-



8

vide loans to financially marginal borrowers due to the fear of the
losses in potential chapter 12 bankruptcy cases.

Statistically, findings concerning the actual impact of chapter 12
filings have not been surprising to rural lenders. According to a
September 1992 study released bv USDA Economic Research Serv-
ice (ERS), entitled "Bankruptcy Costs Under Chapter 12," the aver-
age total bankruptcy costs under chapter 12 at the time of bank-
ruptcy are between 90 and 100 percent of the asset value of the
farm. This compares to between 54 and 60 percent historically for
agricultural bankruptcies previously filed under chapter 11. Be-
cause creditors forced into chapter 12 bankruptcy are precluded
from recovering any of these losses when the value of tne assets
appreciate, one can readily see that this lack of shared appreciation
amounts to millions of dollars no longer available to rural borrow-
ers.

The study also shows the impacted cost to other borrowers. The
ERS study concludes that the increased interest cost to all farm
borrowers as a result of chapter 12 is between a quarter and 1 per-
cent on all farm loans. The study indicated that the weaker farm
borrowers also pay higher rates if they can obtain a loan at all.

Mr. Chairman, this fact is important. Chapter 12, in my mind,
hurts those borrowers who are average or below average credits. In
my experience, loans to this group of farmers come under closer
scrutiny from regulators and internal processes because they
present a much greater risk. Chapter 12 places the risk of loss cat-
egory on top of the lender's list of considerations when evaluating
the credit.

I would attest that a prudent lender frequently will make the de-
cision not to make the loan to these borrowers given the apparent
risk associated with chapter 12. Because of the threat of chapter
12, young farmers and ranchers, as well as marginal borrowers,
those most in need of funding, often have a difficult time finding
lenders who are willing to extend credit. When they do find a will-
ing lender, they must pay an interest premium on those loans. This
increase in interest rates is the result of risk pricing that lenders
must utilize to protect depositors and to satisfy regulators.

In conclusion, chapter 12 bankruptcy has two major effects on
farmers and ranchers in rural America, the availability of credit
has been lessened and the cost of credit has increased.

Mr. Chairman, while ABA appreciates the efforts made in H.R.
416 to address the problems associated with the needless delays in
this chapter 12 process, we would encourage this committee to ad-
dress also the concerns which have made chapter 12 so difficult for
lenders attempting to lend to borrowers in rural America.

Again, I appreciate the opportunity to appear before this commit-
tee today, and would be pleased to answer any questions.

Mr. Brooks. Thank you very much, Mr. Plagge.

[The prepared statement of Mr. Plagge follows:!



Statement (»f the American Bankers AsM>ciation

c>n

Chapter 12 of the Bankruptcy Code

prevented U» the

House Judiciary Subcommillce on Ec«tnomic and C«>mmercial Law

by
JefT Plagjie

March 10, 1993



Mr. Chairman and members of the Subcommittee, I am Jeff Plagge, ILxecutivc
Vice President, First State Bank, Webster City, Iowa, and I am currently Vice Chairman
of the American Bankers Association (ABA) Agricultural Bankers Executive Committee.
ABA members represent about 90 percent of the industry's total assets. Approximately
75 percent of our members arc community banks with assets of less than SliK) million. I
appreciate this opportunity to appear before this committee today to present ABA's
views on family farm bankruptcy law provisions, more commonly referred to as Chapter
12 of the Bankruptcy Code. We believe that this chapter of the bankruptt7 code has not
served rural communities well, and has adversely affected the availability of credit in
rural communities.

The ABA wishes to commend this committee for holding a hearing on H.R. 416,
which extends Chapter 12 for five additional years, because it is important for rural
communities that this relatively new bankruptcy title be carefully examined.
We particularly appreciate the hearing on H.R. 416, because ABA cannot support a
simple extension of Chapter 12. Therefore, the ABA also wishes to commend the efforts
of Congressman Synar, who has been willing to address the procedural delay problems



10



faced by bankers under the current Chapter 12. These changes are reflected in H.R.
416, which the banking community believes is an important first step towards correcting
the current inequities under Chapter 12.

In 1986, Chapter 12 of the Bankruptcy Code was established to provide a
simplified and expedited form of reorganization for debtors that qualified as family
farmers. At the height of the "Ag Crisis," when both farmers and bankers were
concerned about the future viability of farm operations, Chapter 12 was billed as a means
to provide both temporary relief and an expedited procedure under which prompt
reorganization would alleviate further distress. By establishing statutory deadlines.
Congress sought to assure that Chapter 12 cases would proceed expeditiously for the
benefit of both debtors and creditors. While the procedures were supposed to be
expedited, many of the creditors' rights provided under traditional Chapter 11
reorganizations were removed.

Unfortunately, the expedited procedure process has not worked well in rural
America. Farmers choosing bankruptcy under Chapter 12 have frequently delayed the
process for filing suitable reorganization plans. Because creditors are precluded from
filing their own proposed plan when such delays occur, as they can under a Chapter 11
proceeding, Chapter 12 cases are often delayed years before an approved plan is in
place. Further, because such a plan is approved without the participatory vote of the
creditors, the debtors maintain total leverage throughout the entire Chapter 12



11



proceeding, often manipulating the process while the creditors watch helplessly from the
sidelines. In fact, the helpless frustration that is felt by bankers in this situation often is


1 3 4 5

Online LibraryUnited States. Congress. House. Committee on the JExtension of family farmer bankruptcy provisions : hearing before the Subcommittee on Economic and Commercial Law of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session on H.R. 416 ... March 10, 1993 → online text (page 1 of 5)