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Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz Sep 2015

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Stephanie Ben-Ishai

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …


Bankruptcy Empiricism: Lighthouse Still No Good (Reviewing Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbook, The Fragile Middle Class: Americans In Debt (2000)), Margaret Howard Sep 2015

Bankruptcy Empiricism: Lighthouse Still No Good (Reviewing Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbook, The Fragile Middle Class: Americans In Debt (2000)), Margaret Howard

Margaret Howard

Not available.


Brief Of Professor Margaret Howard As Amicus Curiae In Support Of Respondents, Margaret Howard Sep 2015

Brief Of Professor Margaret Howard As Amicus Curiae In Support Of Respondents, Margaret Howard

Margaret Howard

None available.


Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley Aug 2015

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Patricia E Dilley

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …


Who Bears The Burden? The Place For Participation Of Municipal Residents In Chapter 9, C. Scott Pryor Jul 2015

Who Bears The Burden? The Place For Participation Of Municipal Residents In Chapter 9, C. Scott Pryor

C. Scott Pryor

No abstract provided.


Trouble Down Under: Some Thoughts On The Australian-American Corporate Bankruptcy Divide, 2001 Utah L. Rev. 189 (2001), Paul B. Lewis Jul 2015

Trouble Down Under: Some Thoughts On The Australian-American Corporate Bankruptcy Divide, 2001 Utah L. Rev. 189 (2001), Paul B. Lewis

Paul Lewis

No abstract provided.


Bankruptcy Thermodynamics, 50 Fla. L. Rev. 329 (1998), Paul B. Lewis Jul 2015

Bankruptcy Thermodynamics, 50 Fla. L. Rev. 329 (1998), Paul B. Lewis

Paul Lewis

No abstract provided.


An Empirical Economic Analysis Of The 2005 Bankruptcy Reforms, 24 Emory Bankr. Dev. J. 327 (2008), Thomas Evans, Paul B. Lewis Jul 2015

An Empirical Economic Analysis Of The 2005 Bankruptcy Reforms, 24 Emory Bankr. Dev. J. 327 (2008), Thomas Evans, Paul B. Lewis

Paul Lewis

No abstract provided.


Can't Pay Your Debts, Mate? A Comparison Of The Australian And American Personal Bankruptcy Systems, 18 Bankr. Dev. J. 297 (2002), Paul B. Lewis Jul 2015

Can't Pay Your Debts, Mate? A Comparison Of The Australian And American Personal Bankruptcy Systems, 18 Bankr. Dev. J. 297 (2002), Paul B. Lewis

Paul Lewis

No abstract provided.


Business Insolvency And The Irish Debt Crisis, 11 Rich. J. Global L. & Bus. 407 (2012), Paul B. Lewis Jul 2015

Business Insolvency And The Irish Debt Crisis, 11 Rich. J. Global L. & Bus. 407 (2012), Paul B. Lewis

Paul Lewis

Among the volume of material written about the Irish debt crisis and its impact over the past few years, strikingly little has been written about the ability to save a financially distressed company under Irish law and whether corporate restructuring could have mitigated some of the financial damage to Irish companies, particularly those in the property and construction industries. There is a reason for this. The number of filings under the Examinership law - the rough equivalent of Chapter 11 in the United States - remained small and relatively constant during both the recent boom and the more immediate bust …


203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis Jul 2015

203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis

Paul Lewis

No abstract provided.


International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford Jul 2015

International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford

Hon. Samuel L. Bufford

The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose. This Article begins with a detailed examination of the two principal cases where conflicts …


Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford Jul 2015

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Hon. Samuel L. Bufford

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management. The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …


Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel L. Bufford Jul 2015

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel L. Bufford

Hon. Samuel L. Bufford

The European Court of Justice ("E.C.J.") issued a ruling on May 2, 2006 in the Eurofood case, finding that the commencement of an insolvency case for Eurofood in Ireland gave the Irish court priority under E.U. law over a similar insolvency case commenced shortly thereafter in Italy. The E.C.J.'s ruling responded to the Supreme Court of Ireland's referral to the E.C.J. of five questions of E.U. law based on the E.U. Regulation on Insolvency Proceedings ("E.U. Regulation"). The Irish Supreme Court had referred these questions to the E.C.J. preliminary to deciding a pending appeal of the Dublin High Court's decision …


The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford Jul 2015

The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford

Hon. Samuel L. Bufford

This article discusses minor changes to the U.S. Bankruptcy Code that would make avoiding foreclosure possible for a homeowner who (a) is presently not able to make the mortgage service payments but (b) could make payments for a mortgage that is reduced to the market value of the property and to a fixed market mortgage rate. This article does not address the political issue of what protections Congress might decide to provide mortgage owners and servicers as a part of such legislation.


Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford Jul 2015

Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford

Hon. Samuel L. Bufford

Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …


Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford Jul 2015

Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford

Hon. Samuel L. Bufford

This Article details my disagreements with Professor Lynn LoPucki's article "Global and out of Control" (79 Am. Bankr. L.J. 79). Part I discusses universalism and territorialism, especially the modified version of universalism that I support. Part II examines the international venue provisions of the Model Law and the EU Regulation. Part III introduces the relevant venue shopping cases. Only two groups of cases are relevant for the purpose of this paper: the French and German subsidiaries of Daisytek and Eurofood (a subsidiary of Parmalat SpA, the Italian conglomerate). None of the other cases that Professor LoPucki discusses was subject to …


What Is Right About Bankruptcy Law And Wrong About Its Critics, Samuel Bufford Jul 2015

What Is Right About Bankruptcy Law And Wrong About Its Critics, Samuel Bufford

Hon. Samuel L. Bufford

My comments in this paper focus on the papers in thus Symposium by Professors Barry Adler, James Bowers, and Philippe Aghion, Oliver Hart, and John Moore. I argue that the central points of these papers are gravely mistaken because they completely misunderstand the character of the bankruptcy caseload and procedures, they ignore some important purposes of bankruptcy reorganization, and they misstate the success rate for reorganizations. I have chosen these papers for comment for two reasons: they recommend radical changes in bankruptcy law, and they are based on the thinnest knowledge of bankruptcy practice. Incidentally, they also all take an …


Romanian Bankruptcy Law: A Central European Example, Samuel Bufford Jul 2015

Romanian Bankruptcy Law: A Central European Example, Samuel Bufford

Hon. Samuel L. Bufford

Romania now has one of the best-drafted bankruptcy laws in Central and Eastern Europe. The new Romanian bankruptcy law went into effect on August 26, 1995 and replaced the previous bankruptcy provisions in §695-987 of the Romanian Commercial Code, which was translated from the Italian Commercial Code of 1884 and enacted in 1887. While the commercial code fell into disuse during the Communist era, it was never repealed. After the Romanian revolution and the demise of Nicolae Ceauşescu at the end of 1989, the commercial code as well as the civil code remained good law and needed only to be …


The Lawyer Who Built Titletown: Gerald Clifford, The Green Bay Packers And Community Ownership, 14 U. Denv. Sports & Ent. L.J. 3 (2013), Maureen Collins Jul 2015

The Lawyer Who Built Titletown: Gerald Clifford, The Green Bay Packers And Community Ownership, 14 U. Denv. Sports & Ent. L.J. 3 (2013), Maureen Collins

Maureen B. Collins

No abstract provided.


Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder Jul 2015

Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder

Franklin G. Snyder

In theory, the substantive rights of secured creditors such as mortgagees are affected much less by bankruptcy proceedings than those of unsecured creditors. In practice, however, bankruptcy proceedings have affected mortgagees. Filing a bankruptcy petition automatically stays pending foreclosures. Trustees in bankruptcy also can set aside foreclosures of certain liens obtained by unsecured creditors and certain mortgages and deeds of trust executed in the year preceding bankruptcy. The decision in Durrett adds yet another weapon to the bankruptcy trustee's arsenal: the power to void nonjudicial foreclosure sales even though the sale is proper and final under state law.


An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez Jun 2015

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.


Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr. Jun 2015

Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr.

Kenneth Ayotte

We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms …


An Efficiency-Based Explanation For Current Corporate Reorganization Practice, Kenneth M. Ayotte, David A. Skeel Jr. Jun 2015

An Efficiency-Based Explanation For Current Corporate Reorganization Practice, Kenneth M. Ayotte, David A. Skeel Jr.

Kenneth Ayotte

No abstract provided.


Making Sense Of Successor Liability, Marie T. Reilly Jun 2015

Making Sense Of Successor Liability, Marie T. Reilly

Marie T. Reilly

A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.


The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly Jun 2015

The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly

Marie T. Reilly

Bankruptcy Code section 502(b)(6) sets the maximum allowable amount of a real property lessor's claim for damages arising for breach of lease in a tenant's bankruptcy case. To the extent a lessor's damages claim under nonbankruptcy law exceeds the maximum amount, it is disallowed. The implicit premise for such disallowance is that real property lessors' damages claims are less worthy of respect in bankruptcy than other claims for damages against the debtor. Real property leases are legally distinct from leases of personal property or other contractual relationships that allocate property rights. But, it does not obviously follow from the distinction …


Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn Jun 2015

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn

Jason Kilborn

No abstract provided.


Mercy, Rehabilitation, And Quid Pro Quo: A Radical Reassessment Of Individual Bankruptcy, 64 Ohio St. L.J. 855 (2003), Jason Kilborn Jun 2015

Mercy, Rehabilitation, And Quid Pro Quo: A Radical Reassessment Of Individual Bankruptcy, 64 Ohio St. L.J. 855 (2003), Jason Kilborn

Jason Kilborn

Chapter 7 "straight" bankruptcy discharge is a radical policy that has outlived its usefulness. This policy grants most individual debtors complete discharge of indebtedness from their creditors for little more than a filing fee. This article argues that straight bankruptcy should be abolished. In its place, individuals seeking debt relief should be required by statute to participate in a wage assignment plan for a limited period. In support of this argument the article challenges the three rationales for the validity of straight bankruptcy discharge: (1) the creditor-protection or "collection" rationale,; (2) the "mercy" rationale; and (3) the "rehabilitation" rationale. When …


Thou Canst Not Fly High With Borrowed Wings: Airline Finance And Bankruptcy Code Section 1110, 8 Geo. Mason L. Rev. 41 (1999), Jason Kilborn Jun 2015

Thou Canst Not Fly High With Borrowed Wings: Airline Finance And Bankruptcy Code Section 1110, 8 Geo. Mason L. Rev. 41 (1999), Jason Kilborn

Jason Kilborn

No abstract provided.


Still Chasing Chimeras But Finally Slaying Some Dragons In The Quest For Consumer Bankruptcy Reform, 25 Loy. Consumer L. Rev. 1 (2012), Jason Kilborn Jun 2015

Still Chasing Chimeras But Finally Slaying Some Dragons In The Quest For Consumer Bankruptcy Reform, 25 Loy. Consumer L. Rev. 1 (2012), Jason Kilborn

Jason Kilborn

Consumer bankruptcy systems in Europe and the United States have witnessed especially robust and dynamic development during the past decade. The ever-rising volume of seeking entry to these systems now allows for cross-systemic comparisons of substantially differing “markets” for the relief that these systems offer. In particular, the distinct trend toward greater efficiency seen in other financial markets can be increasingly observed in most consumer bankruptcy regimes, with some notable exceptions. In this context, market performance can be gauged in part by the degree to which systems offer efficient and effective relief as a stimulus to deploying available debtor resources …