Law Commons^™

A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez

Fordham Journal of Corporate & Financial Law

Auctions are wheeling-dealing extravaganzas in which frenzies of bidders fight over shiny objects. What would happen if the government busted down the doors of the auction house, took the shiny objects, and sold them online? An asset sale through section 363(b) of the Bankruptcy Code provides a court-supervised opportunity to maximize economic value for the bankruptcy estate. To sell estate assets, the debtor must either (1) pay off each creditor holding an interest in the assets or (2) strip the creditor’s interest and attach it to the proceeds of the sale. When the government asserts a civil forfeiture claim against …

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

Without Reservation: Ensuring Uniform Treatment In Bankruptcy While Keeping In Mind The Interests Of Native American Individuals And Tribes, Connor D. Hicks

Fordham Journal of Corporate & Financial Law

The Bankruptcy Code (“Code”) exists as a mechanism for good faith debtors to discharge debts and seek a “fresh start” in life and finance. 11 U.S.C. § 106(a) ensures that not only are all debtors treated uniformly, but that all creditors, including governmental creditors which may otherwise enjoy immunity from suit, are equally subject to the jurisdiction of Bankruptcy courts and bound to the provisions of the Code.

However, a recent circuit split has demonstrated one niche yet significant instance in which a debtor may not receive the same treatment as their counterparts. While § 106 contains an express waiver …

The Overstated Absolute Priority Rule, Stephen J. Lubben

Fordham Journal of Corporate & Financial Law

No abstract provided.

Lost In Translation: Till V. Scs Credit Corp. And The Mistaken Transfer Of A Consumer Bankruptcy Repayment Formula To Chapter 11 Reorganizations, Mark J. Thompson, Katie M. Mcdonough

Fordham Journal of Corporate & Financial Law

This Article argues that courts overseeing chapter 11 cases have been mistakenly invoking the Supreme Court’s 2004 decision in Till v. SCS Credit Corp.—which specified a consumer-friendly formula for setting the interest rate on the remaining payments on a loan that financed a used pickup truck—at the expense of over a century of Supreme Court precedents that established the contrastingly creditor friendly “fair and equitable” standard for repayment of business debts, as well as disregarding a clear statutory distinction between the present value tests in chapters 11 and 13. This Article also discusses the controversial 2014 decision in Momentive Performance …

Chapter 11 Asset Sales: Will There Be A Chilling Effect On Section 363(K) Credit Bidding After In Re Fisker Automotive Holdings Llc?, Riley Orloff

Fordham Journal of Corporate & Financial Law

No abstract provided.

Politics In The American Airlines-U.S. Airways Merger And Antitrust Settlement, Michelle Chan

Fordham Journal of Corporate & Financial Law

American Airlines was one of the airline industry’s darlings. A legacy airline, it was a household name, a massive entity, employed thousands, and commanded a fearsome presence among other industry players like unions and airport terminals. However, with ballooning costs and the red ocean airline industry’s evolution, American Airlines’ parent company, AMR, was forced into bankruptcy in November 2011. To emerge from Chapter 11, American Airlines and U.S. Airways announced plans to merge and come out a stronger, larger airline in February 2013. The Department of Justice Antitrust Division shortly thereafter filed a lawsuit opposing the merger, alleging it would …