Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (5)
- University of Georgia School of Law (3)
- Georgetown University Law Center (2)
- Singapore Management University (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
-
- Yeshiva University, Cardozo School of Law (2)
- Maurer School of Law: Indiana University (1)
- Osgoode Hall Law School of York University (1)
- Roger Williams University (1)
- St. John's University School of Law (1)
- University of Kentucky (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Massachusetts School of Law (1)
- University of Richmond (1)
- Publication Year
Articles 1 - 24 of 24
Full-Text Articles in Law
Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow
Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow
Law & Economics Working Papers
The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …
Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez
Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
This article analyses the legal, market and institutional features needed to become an international hub for debt restructuring. For that purpose, it explores the strategy followed by Singapore, as well as the market and institutional factors generally found in other leading centres for legal and financial services such as the United States, the United Kingdom and Hong Kong. In jurisdictions traditionally having creditor-oriented insolvency systems, such as the United Kingdom, Hong Kong and Singapore, one of the primary challenges for the improvement of the restructuring framework for debtors consists of making sure that the insolvency system remains protective of the …
The Future Of Insolvency Law In A Post-Pandemic World, Aurelio Gurrea-Martinez
The Future Of Insolvency Law In A Post-Pandemic World, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
The COVID-19 crisis has encouraged many countries to amend their insolvency laws. In most cases, these amendments took place temporarily – especially during the hibernation phase of the pandemic. In other countries, however, the pandemic has led to permanent changes in the insolvency legislation. More importantly, the COVID-19 crisis has accelerated the insolvency reforms already existing in the political agenda of many countries, and it has encouraged other jurisdictions to reassess the desirability of their insolvency and restructuring frameworks. This article analyzes the current trends, reforms and policy discussions that are expected to reshape the future of insolvency law in …
Law School News: Distinguished Research Professor: John Chung 05-24-2020, Michael M. Bowden
Law School News: Distinguished Research Professor: John Chung 05-24-2020, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Tuition As A Fraudulent Transfer, David G. Carlson
Tuition As A Fraudulent Transfer, David G. Carlson
Articles
Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …
Are Government Creditors Exempt From U.C.C. Article 9 Filing And Perfection Requirements?, Thomas Sica
Are Government Creditors Exempt From U.C.C. Article 9 Filing And Perfection Requirements?, Thomas Sica
Bankruptcy Research Library
(Excerpt)
Article 9 of the Uniform Commercial Code (the “UCC”) requires a creditor to perfect its security interests against its collateral in order to recover the creditor’s priority in such collateral. Former versions of the UCC that predate 2001 provided that the Article 9’s perfection requirements did not apply “[t]o a transfer by a government or a governmental unit of the state.” This exception was eliminated from the UCC in 2001. Thirty-two states, however, still have versions of the UCC that contain some version of this exception. Within the states that still enforce this exception for governmental units, there are …
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Faculty Scholarship
Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …
Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben
Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben
Articles & Book Chapters
In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …
Worsening Foreclosure Crisis: Is It Time To Reconsider Bankruptcy Reform?: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., July 23, 2009 (Statement Of Adam J. Levitin, Associate Prof. Of Law, Geo. U. L. Center), Adam J. Levitin
Testimony Before Congress
The clear finding from my research is that mortgage prices are largely insensitive to bankruptcy modification risk. Permitting bankruptcy modification is unlikely to result in higher mortgage costs or lower mortgage credit availability.
The foreclosure crisis is not about to stop any time soon. Judicially-supervised restructuring of mortgages is the only tool we have left in the box. It's a tool we know can work. It's a tool that can save hundreds of thousands of families their homes and help stabilize communities, housing markets, and the economy. It's time to use it.
H.R. 200, The "Helping Families Save Their Homes In Bankruptcy Act Of 2009," And H.R. 225, The "Emergency Homeownership And Equity Protection Act": Hearing Before The H. Comm. On The Judiciary, 111th Cong., Jan. 22, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin
Testimony Before Congress
Permitting modification of all mortgages in bankruptcy would create a low-cost, effective, fair, and immediately available method for resolving much of the current foreclosure crisis without imposing costs on taxpayers, creating a moral hazard for borrowers or lenders, or increasing mortgage credit costs or decreasing mortgage credit availability. As the foreclosure crisis deepens, bankruptcy modification presents the best and least invasive method of stabilizing the housing market and is a crucial step in stabilizing financial markets.
The Logical Structure Of Fraudulent Transfers And Equitable Subordination, David G. Carlson
The Logical Structure Of Fraudulent Transfers And Equitable Subordination, David G. Carlson
Articles
No abstract provided.
"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part Ii), Nancy B. Rapoport, Jeffrey D. Van Niel
"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part Ii), Nancy B. Rapoport, Jeffrey D. Van Niel
Scholarly Works
This part of the article provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA. (Part I provides a primer on the history of utilities regulation.)
"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel
"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel
Scholarly Works
This part of the article provides a primer on the history of utilities regulation. (Part II provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA.)
2001: A Code Odyssey (New Dawn For The Article 9 Secured Creditor), Michael G. Hillinger
2001: A Code Odyssey (New Dawn For The Article 9 Secured Creditor), Michael G. Hillinger
Faculty Publications
This Article attempts to describe what bankruptcy lawyers and judges most need to know about the Revised Article 9. (Of course, if bankruptcy judges and lawyers need to know it, a fortiori, secured creditors’ attorneys need to know it.)
At the top of the most-need-to-know list are Revised Article 9’s choice-of-law and filing rules. Section 544(a) of the Bankruptcy Code, the “trustee’s strong-arm” clause, permits the trustee (and debtor-in-possession) to avoid unperfected security interests. For many transactions, Revised Article 9’s choice-of-law provisions will change where the creditor must file to perfect its interest. Those who do not know about Revised …
Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh
Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh
LLM Theses and Essays
This thesis attempts to discover the factors leading to such failures and to propose a cure. It argues that the basic structure of Chapter 11 of the Code, the debtor in possession structure, is one of the essential factors causing such a high rate of failure. The thesis further asserts that it is possible to reduce the rate of unsuccessful reorganization if the bankruptcy court exercises its power of case management more actively and expeditiously. For example, the court can screen the debtors' filing for relief before the reorganization case proceeds too far. Chapter II of this thesis examines the …
Derivatives And Risk Framework, Ravichandra Vasant Kini
Derivatives And Risk Framework, Ravichandra Vasant Kini
LLM Theses and Essays
The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
LLM Theses and Essays
A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …
Harvey's Silence (Symposium: Letters To The Commission), James J. White
Harvey's Silence (Symposium: Letters To The Commission), James J. White
Articles
Harvey Miller has a reputation as a leading bankruptcy lawyer, and he deserves it. As his criticism shows, he understands why and how the Code changed the Act in 1978 and how the drafters of Chapter 11 erred. Better than all but a handful of other lawyers, Harvey Miller knows how to manipulate Chapter 11 to serve his clients' interests. He understands both the legal and practical intricacies of Chapter 11. Were I the CEO of a large and troubled company, I would hire Harvey Miller and gladly pay him twice what most other bankruptcy lawyers would charge. In short, …
Revising Article 9 To Reduce Wasteful Litigation, James J. White
Revising Article 9 To Reduce Wasteful Litigation, James J. White
Articles
For reasons that are unclear to me, the committees reviewing the articles of the Uniform Commercial Code and drafting revisions are congenitally conservative. Perhaps these committees take their charge too seriously, namely, to revise, not to revolutionize. Perhaps their intimate knowledge of the subject matter exaggerates the importance of each section and consequently magnifies the apparent size of every change. In any case, my own experience with two such committees tells me that the members quickly become focused on revisions and amendments that any outsider would describe as modest. To the extent that the revision of any of the articles …
The Malformed Mouse Meets The Libr: Secured And Restitutionary Claims To Commingled Funds, Harold R. Weinberg
The Malformed Mouse Meets The Libr: Secured And Restitutionary Claims To Commingled Funds, Harold R. Weinberg
Law Faculty Scholarly Articles
The "malformed mouse" is section 9-306(4)(d) of the Uniform Commercial Code. It provides a formula that determines the extent to which an insolvent debtor's commingled bank account contains funds subject to a security interest. A special entitlement is necessary because it is impossible to physically distinguish this collateral after commingling. The label malformed mouse is appropriate if one agrees with critics who have questioned the mouse's statutory architecture and underlying rationale. The image of an elusive creature is also apt. The mouse continues to elude understanding, although it has been part of the Code for many years and the subject …
The Risks Of Insider Guaranties, Douglass G. Boshkoff
The Risks Of Insider Guaranties, Douglass G. Boshkoff
Articles by Maurer Faculty
Loan payments made within a year of a bankruptcy filing could be considered avoidable preferences if the loan were guaranteed by a corporate insider. In this article, Prof Boshkoff argues that bankers should value insider guaranties only as a second source of payment, not for any subtle pressure they may exert on the borrower.
Buyer Status Under The U.C.C: A Suggested Temporal Definition, David Frisch
Buyer Status Under The U.C.C: A Suggested Temporal Definition, David Frisch
Law Faculty Publications
This Article attempts two different but complementary tasks. First, it offers an answer to the "by no means academic question" asked above. In so doing, the Article considers Code rules that affect the buyer-seller relationship and those that impact on the interests of third parties. The conclusion reached is that buyer status occurs at the moment the purchaser obtains the remedial right to the goods vis-a-vis the seller. In most instances, therefore, buyer status will inevitably coincide with the moment the remedy of specific performance or, in some cases, replevin becomes available to the buyer. The Article's second purpose is …
Efficiency Justifications For Personal Property Security, James J. White
Efficiency Justifications For Personal Property Security, James J. White
Articles
In February of 1983 Pan American World Airways issued 100 million dollars of convertible secured notes. As security for these notes it put up three Boeing 747 SP aircraft, two 747-100 aircraft, and one McDonnell Douglas DC10-30. The appraised value of these aircraft was 157 million dollars. To the extent possible under the law, Pan American made these aircraft subject to the claims of the owners of the new notes. On default, the note holders would have the first claim on these aircraft, would have the right to repossess them outside of bankruptcy, and would have the right to the …
The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White
The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White
Articles
One can view the law of creditors' rights as a series of cyclesin which alternatively the rights of the creditor and then those of the debtor are in ascendancy. Looking back through Americanlegislative history, one sees both the state legislatures and the Congress intervening on behalf of debtors in a variety of ways onmany occasions. An early example of such intervention was the enactment, particularly in the Midwest and West, of generous exemption laws that removed a variety of property beyond the reach of general creditors. A second example is the enactment of usury laws, which continue to be a …