Location, Location, Location: Pick And Choose Where You File Your Bankruptcy Case, It May Affect the Outcome

December 1, 2012
By Edward Gonzalez, Esq. on December 1, 2012 10:48 AM | | Comments ()

A significant consideration in filing your bankruptcy case is "venue" -- that's legalese for the physical location of the court in which you file.

It's a powerful feature of bankruptcy -- especially for business bankruptcy cases under Chapter 11 - that you may be able to pick the court, and that, in turn, can have a bearing on the legal outcome.

A federal statute, 28 U.S.C. 1408(1), specifies where a bankruptcy case may be filed and applies to all types of bankruptcy, from Chapter 7 through Chapter 13. The statute provides options for filing your bankruptcy case.

The law says a debtor may choose to file in the federal court district in which his domicile, residence, principal place of business, or principal assets in the United States have been located for the past six months (or where they have been located for the longest part of those six months, if they have been located in several places during that time.)

This can work to the benefit of businesses in bankruptcy because they are often incorporated in one place but work principally and have assets located in several places. Venue is generally considered to be permissive, that is, proper wherever the case is filed, unless someone objects.

Thus, a debtor should ensure that the place for venue is the most favorable to his case. With venue selection, certain factors must be considered, including:

  • Consistency in Decisions. Predictable rulings by judges on a given set of facts, and other key players, such as the Office of the US Trustee in that court, is one of the most important factors in deciding where to file. Consistency will allow the debtor to make a reasonable prediction of the outcome of ruling in his case. Judges are humans, too, and have their own inclinations, so it's good to know that from the outset. And particularly with a relatively new bankruptcy law that has is only seven years old and is still being interpreted, there can be variance in published rulings from court to court, and even from judge to judge in the same court as we see here in our area covering Washington, DC, Northern Virginia (Alexandria Division of the Eastern District of Virginia) and suburban Maryland (Greenbelt Division of the District of Maryland).

  • "Debtor-Friendliness." Some judges and courts are consistently more "debtor friendly" than others. This is something regular practitioners in the courts will know from experience.

  • Responsiveness of the Court. Poor responsiveness can affect the timing of so-called "first-day hearings" -- hearings early in Chapter 11 cases where the debtor company ask the court for permission to, for example, access cash to make payroll for employees, key vendors, etc. Slow decision-making by the court in first-day hearing procedures can also signal a general lack of court responsiveness, as well.
  • These are just a few of the considerations that may well affect the outcome of a debtor's case. Debtors should be mindful of the various options for venue and the burdens and benefits they carry with them when deciding where to file their bankruptcy case.

    Work with experienced bankruptcy counsel. For more than fifteen years, our law firm who has successfully handled cases in the various bankruptcy courts in this area of Northern Virginia, Maryland, and the District of Columbia. Call for a complimentary initial consultation.

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