17 Feb 2016
By David F. Mills
This year is shaping up to be a problem for many farmers in our area. Too much rain last fall decreased crop yields, cutting into farmers’ profits and causing a shortage of soybean seed. Prices for soybeans, corn, and other commodities are well off the highs of a couple of years ago. The combined effect of these issues will likely lead to the unfortunate default by many growers on their 2015 operating loans and other farm-related debts.
Unfortunately, farmers often wait too long before seeking help. Farmers are, by nature, eternal optimists—“next year will be better.” Also, farmers in financial difficulty are worried and embarrassed. They want to keep their lender happy, keep their trade creditors (fertilizer, chemical, and fuel dealers) happy, and maintain something of a normal life. As a result, the farmer often just does nothing.
Over the past 24 years, I have represented many farmers in financial distress, including many in Chapter 12 family farm bankruptcy. I am always surprised by how long the farmer has waited before coming in to get advice and direction.
If you are a farmer facing financial difficulties, there are things that you can do proactively to get a handle on your financial situation. An attorney experienced in agricultural finance issues can help. To get a head start, ask yourself the following questions:
1. What do you own, and what is it worth? List your real estate, your vehicles, your farm equipment, and all your other assets. What is the value of each item today?
2. Who has liens against your assets? Does anyone have liens against specific equipment, or does anyone have a blanket lien on all your equipment? How about deeds of trust against your real estate, including your home? How much is owed to each of these creditors? If more than one creditor has a lien against certain assets, what is the order of their priority?
3. Are there creditors who don’t have liens (unsecured creditors)? Who are they and how much do you owe them?
4. In the last 2 to 3 years, have you completed a financial statement, balance sheet, or cash flow statement? Often you will complete these forms when borrowing money, especially through the Farm Service Agency (FSA) or the farm credit system. Are these statements accurate and up-to-date?
5. Are your assets insured, including your farm equipment?
6. Do you have any crop insurance claims, other types of insurance claims, or do you anticipate receiving a government program payment?
7. Have you made arrangements for renting land for the coming year? Do you owe any land rent from last year?
8. Has anyone filed a lawsuit against you? If so, you have only a limited amount of time to respond to it.
9. Has anyone started a foreclosure against you, or repossessed any equipment? Again, if so, you must respond within a short time or you may lose important rights.
10. Have you talked to the lenders you are unable to pay? Don’t ignore them.
11. Have you defaulted or are you about to default on a loan from FSA? You have certain rights as an FSA borrower (loan servicing options) but you must act within a limited time in order to take advantage of those options.
12. Do you have a projected budget for the current year, with projected income and farm expenses? Is it a realistic budget?
13. Do you NEED all of the land and equipment you currently own? Can you “trim the fat” and turn in or sell any of your assets? If you do, what are the tax consequences?
14. Do you owe any income taxes or payroll taxes? Are you current on your tax return filings?
15. Are any of your debts guaranteed or co-signed by someone else?
16. Does anyone have a lien on your crops?
17. What are your options for financing this year’s crops?
18. Have you talked with a lawyer who is experienced in dealing with farm debt issues, including family farm bankruptcy? Talking to me doesn’t mean that you will definitely file bankruptcy. Often, I am able to help my clients avoid bankruptcy and deal with their debt problems through a workout plan with their creditors. But bankruptcy is an option to be fully considered. Farmers have special rights and provisions under bankruptcy law to protect them from their creditors, help them reorganize their finances, and stay in business.
If you are a farmer in financial distress or have been denied a crop insurance claim, call me to schedule an appointment. We will discuss your situation and I will help you realistically identify and evaluate your options. My telephone number is (919) 934-7235.
David F. Mills is an attorney in Smithfield, North Carolina, having grown up on a tobacco farm in Jones County in eastern North Carolina. He has practiced bankruptcy law, focusing on agricultural debt relief, since 1991. He is an Adjunct Professor of Bankruptcy at Campbell University School of Law and a member of the American Agricultural Law Association.