Memorandum of Law in Support of Subchapter V Consensual Confirmation
(11 U.S.C. § 1191(a))

Summary

This template memorandum of law is for use by an attorney representing a Subchapter V debtor seeking to confirm a plan on a consensual basis pursuant to Section 1191(a) of the Bankruptcy Code. This template includes practical guidance, drafting notes, and alternate and optional clauses. Section 1189(a) of the Bankruptcy Code provides that only the debtor may file a plan of reorganization in a Subchapter V proceeding. 11 U.S.C. § 1189(a). The Subchapter V plan process moves faster than an ordinary Chapter 11 proceeding. The debtor must file its plan of reorganization within 90 days from the petition date unless the bankruptcy court extends such time for cause. 11 U.S.C. § 1189(c). Section 1190 governs the contents of a plan and contains rules concerning (1) information that must be included in a plan, (2) payment of disposable income, and (3) modifying claims of mortgagees who hold a mortgage lien on the debtor's principal residence. The court will confirm a plan that meets all the requirements of Section 1129(a) of the Bankruptcy Code other than (a)(15) (which requires individual debtors to either pay all unsecured claims in full or pay an amount equal to its projected five years' worth of disposable income). 11 U.S.C. § 1191(a). Confirmation under Section 1191(a) is akin to consensual confirmation, while confirmation under Section 1191(b) is akin to a cramdown. A plan can be confirmed without the consent of all impaired classes under Section 1191(b) if the plan does not discriminate unfairly and is fair and equitable with respect to each class of impaired claims and interests that do not vote in favor of the plan and all other requirements (i.e., Section 1129) made applicable to plans confirmed under Section 1191(b) are satisfied (referred to as cramdown). For additional resources on Subchapter V of Chapter 11, see Subchapter V Bankruptcy Resource Kit. This template contains arguments and sample facts for consensual confirmation. For information on Subchapter V confirmation, see Subchapter V Confirmation Requirements. To keep track of Subchapter V case law, see Subchapter V Decision Tracker. For information on satisfying the Section 1129(a) requirements for confirmation, see Confirmation and Chapter 11 Plan Confirmation Resource Kit.