Law Commons^™

Bad Faith Dismissals In Chapter 7, Myah Drouin

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides a fresh start to the “honest but unfortunate debtor.” Chapter 7 therefore permits a debtor to “discharge their outstanding debts in exchange for liquidating their nonexempt assets and distributing them to their creditors.” Dismissals in chapter 7 are governed by section 707 of the Bankruptcy Code. Section 707(a) governs all chapters of bankruptcy filings and applies when adequate “cause” is shown.

There is currently a circuit split regarding whether a debtor’s lack of good faith constitutes cause for dismissal under section 707(a). Under section 707(a), a case may …

Circumstances Under Which A Court Will Dismiss A Chapter 11 Filing Made In Bad Faith, Nicholas Wogan

Bankruptcy Research Library

(Excerpt)

Under section 1112(b) of title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy court may dismiss a Chapter 11 filing “for cause.” It is a generally accepted principle that “for cause” dismissal includes dismissal of filings made in bad faith, and this concept originates in a need for bankruptcy courts to uphold the jurisdictional integrity of the Chapter 11 process from those who would seek to abuse it. Courts deciding whether dismissal for bad faith is warranted typically employ a two-step analysis: first to determine whether a bad faith filing is “cause” for dismissal under section …

The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm

Catholic University Law Review

Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …

Section 1112(B) Of The Bankruptcy Code Allows A Bankruptcy Court To Dismiss A Case Filed In Bad Faith, Antonio Sciarrotta

Bankruptcy Research Library

(Excerpt)

The United States Bankruptcy Code (the “Bankruptcy Code”) offers a wide range of instances where a bankruptcy court can dismiss a case. Section 1112(b) of the Bankruptcy Code provides that “the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause . . . .” Section 1112(b)(4) lists different scenarios that constitute “for cause.” Although not explicitly within the statutory scheme, a requirement that the debtor files his bankruptcy petition in good faith is one …

Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer

University of Colorado Law Review

This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the …

Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro

Touro Law Review

No abstract provided.

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Insurance Appraisal In Texas And Its Place In Coverage Litigation, Brendan K. Mcbride, William J. Chriss, Matthew R. Pearson

St. Mary's Law Journal

Insurance appraisal is a contractually agreed process for resolving a disagreement between the insurance carrier and the policyholder about the amount of a loss under an insurance policy. Appraisal clauses have been a feature of insurance policies in Texas for well over a century. Old Texas cases were uniform to the effect that appraisal was a method to establish the “amount” of the loss under circumstances where coverage was not in dispute, but a recent line of cases has allowed insurers to escape liability for breach of contract, attorneys’ fees, statutory and common law “bad faith,” and even liability under …

Involuntary Bankruptcy Cases And Discretionary “For Cause” Dismissals, Jp Amato

Bankruptcy Research Library

(Exceprt)

This article addresses whether a bankruptcy court has the discretionary power to dismiss an involuntary bankruptcy case filed under chapters 7 or 11 of title 11 of the United States Code (the “Bankruptcy Code”) for cause when there is a finding of bad faith or a lack of good faith on behalf of the petitioning creditor or creditors. In short, it is unclear because there is insufficient authority on this issue in the involuntary context, and the issue remains split among the courts in the voluntary context.

This article first addresses the statutory requirements of an involuntary petition. Next, …

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando

Maine Law Review

The theory of “bad faith” is by now well established in the areas of liability and casualty insurance. Although the relief available takes different forms in different jurisdictions, a common thread is the exposure of the insurance carrier to extra-contractual damages as a result of its conduct in handling a claim. Depending on the jurisdiction, these extra-contractual damages can include one or more of the following: penal interest and attorneys' fees; consequential damages for breach of contract; and recovery in tort. Even in the most restrictive jurisdiction the exposure is substantial, and in the most expansive it can be catastrophic. …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley

Journal of Intellectual Property Law

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

A Union's Duty In Bankruptcy Cases To Fairly Represent Its Constituency, Denise Dessel

Bankruptcy Research Library

(Excerpt)

Under the National Labor Relations Act (“NLRA”), a union, as the sole representative of its workers, has a duty to fairly represent them. This duty entitles a union to fairly represent all employees, “whether members of the union or not, fairly.” A union breaches this duty when its conduct or decisions are arbitrary, discriminatory, or committed in bad faith.

The terms “arbitrary,” “discriminatory,” and “bad faith” have been interpreted through case law. Part I of this memorandum discusses the interpretation of arbitrary conduct; Part II addresses how courts have defined discriminatory conduct; and Part III analyzes how bad faith …

Rethinking Section 142 Of The Restatement Of Restitution: Fault, Bad Faith, And Change Of Position, John D. Mccamus

John D. McCamus

No abstract provided.

The Concurrent Liability In Contract And Tort Under U.S. And English Law: To What Extent Plaintiff Is Entitled To Recover For Damages Under Tort Claim?, Phutchaya Numngern

Maurer Theses and Dissertations

Both U.S. and English courts has confronted with the concurrent situations mostly occurring in the cases where 1) the plaintiff asks for the recovery in tort claim despite the existence of contractual relationship or 2) the plaintiff asserts contract claim but the defendant contends that the issue at bar should be sound in tort rather than in contract. After studying all relevant cases and academic writings, this thesis found that both U.S. and English systems generally recognize concurrent tort claim as an elective right. The courts have attempted to provide the justified rationales either to allow the plaintiffs tort claim …

Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

The Battle To Define The Scope Of Attorney-Client Privilege In The Context Of Insurance Company Bad Faith: A Judicial War Zone, Steven Plitt, Joshua D. Rogers

The University of New Hampshire Law Review

[Excerpt] "The attorney-client privilege is the "oldest of the privileges for confidential communications known to the common law."' The privilege is "[d]eeply rooted in public policy," and plays a 'vital role' in the administration of justice." As such, the privilege is "traditionally deemed worthy of maximum legal protection"' and "it remains one of the most carefully guarded privileges and is not readily to be whittled down." The privilege has come under assault in the insurance bad faith context in recent decades resulting in a "whittling down" of the privilege for insurance companies as a target party. Over the past couple …

Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi

Brooklyn Law Review

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …

Can A Consumer Debtor Voluntarily Dismiss Own Chapter 7 Bankruptcy Case?, Shane P. Walsh

Bankruptcy Research Library

(Excerpt)

Under Section 707(a) of title 11 of the United States Code (the “Bankruptcy Code”), a court may dismiss a chapter 7 bankruptcy case for cause. Section 707(a) provides a list of examples of conduct that constitutes cause to guide the court in making its determination. A chapter 7 consumer debtor has the right to voluntarily dismiss his own chapter 7 case, however, that right is not absolute. When a consumer debtor seeks to voluntarily dismiss his chapter 7 case he must establish cause for dismissal under section 707(a). The court will determine whether the debtor’s voluntary motion to dismiss …

Texas's Excessive Demand Doctrine Impacts Recoveries In Litigation., Stephanie M. Green

St. Mary's Law Journal

A party demanding money they are not entitled to becomes subject to the excessive demand doctrine. Because the excessive demand doctrine is an affirmative defense, a defending party must allege its claim of excessive demand in its pleadings. A party must “plead it, prove it, and obtain findings of fact on its essential elements.” To obtain findings on the issue, both the pleadings and the evidence are required to put a question or instruction before the jury. Ensuring that the evidence is enough depends upon the trial court—whose judgment will only be overturned upon a showing of an abuse of …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley

Scholarly Works

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Constitutional Bad Faith, David E. Pozen

Faculty Scholarship

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their …

The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen

West Virginia Law Review

No abstract provided.

Contracts Of Individuals Who Are Incompetent Without Guardianship And The Interpretation Of Article 428 Of The Italian Civil Code: Is The Court Of Cassation Wrong?, Enrico Baffi

enrico baffi

This paper aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. …

Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor

Georgia Journal of International & Comparative Law

No abstract provided.

Bad Faith At Middle Age: Comments On “The Principle Without A Name (Yet),” Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Robert H. Jerry II

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself. Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance …

Ethics In Land Use: Using Ethical Allegations As A Sword Rather Than A Shield, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

In California Excess Liability Cases, Does “Bad Faith” In Law Equal “Strict Liability” In Practice?, Roger D. Marlow, Ronald E. Magnuson

Pepperdine Law Review

No abstract provided.