Law Commons^™

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Guaranteed To Work Or It's Free!: The Evolution Of Student Loan Discharge In Bankruptcy And The Ninth Circuit's Ruling In Hedlund V. Educational Resources Institute, Inc., Richard B. Keeton

Richard B. Keeton, Esq.

This article explores the topic of student loan discharge in bankruptcy and also discusses what precedent the Ninth Circuit's holding in Hedlund v. Educational Resources Institute Inc. sets for the future. In order to rationally analyze the effect of Hedlund, this article sets forth the basic foundation of knowledge necessary to understand student loans in general along with the bankruptcy process when educational loans are in question. Additionally, it gives a brief, easy to understand history of federal student loans, which sets the context for analyzing today’s student loan options. Further, this article discusses the evolution of tests for …

A Racionalidade Econômica Do Direito Falimentar: Reflexões Sobre O Caso Brasileiro, Bruno Meyerhof Salama, Fabio Crocco

Bruno Meyerhof Salama

Litigating For The Future Of Public Pensions, Paul Secunda

Paul M. Secunda

Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on. These alarming developments involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in …

The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner

Michelle M. Harner

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? And perhaps more importantly, who owns or has an interest in these soft variables? This article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of …

Honesty Is The Best Policy: Why Good Faith Should Be Required In Chapter 7 Bankruptcies Under § 707(A), Justin Forcier

Justin Forcier

A circuit split exists in today’s bankruptcy courts over whether § 707(a) of the Code requires a debtor to file his Chapter 7 petition in good faith. Some courts have failed to recognize that allowing bad faith petitions to move forward does not align with the spirit of the bankruptcy system and creates a greater and unnecessary burden on those courts and creditors. Therefore, courts should find there is a good-faith requirement in the Code under § 707(a), because finding so will promote continuity, allow those debtors who did file in good faith to receive a faster resolution, and promote …

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

Activist Investors, Distressed Companies, And Value Uncertainty, Michelle M. Harner, Jamie Marincic Griffin, Jennifer Ivey-Crickenberger

Michelle M. Harner

Hedge funds, private equity firms, and other alternative investment funds are frequently key players in corporate restructurings. Most commentators agree that the presence of a fund can change the dynamics of a chapter 11 case. They cannot agree, however, on the impact of this change—i.e., do funds create or destroy enterprise value? This essay contributes to the dialogue by analyzing data from chapter 11 cases in which funds are in a position to influence the debtor’s exit strategy. The data shed light on what such funds might achieve in chapter 11 cases and the potential implications for debtors and their …

Series Llcs: What Happens When One Series Fails? Key Considerations And Issues, Michelle M. Harner, Jennifer Ivey-Crickenberger, Tae Kim

Michelle M. Harner

Entity choice law is constantly evolving and innovating. The series LLC form is one such example. Although the form provides governance and operational flexibility and efficiencies, the law governing the form is still developing. As such, uncertainties linger, particularly in the context of a financially distressed or insolvent series. This article explores many of the issues that arise when a master LLC or one of its series experiences financial distress and contemplates a bankruptcy filing. It also identifies strategies for parties to potentially mitigate certain of these issues in the planning stage. The article concludes by suggesting parties using the …

The Debtor Class, Kara J. Bruce

Kara J. Bruce

In recent years, individuals seeking bankruptcy protection have encountered an unexpected harm: their lenders have misrepresented the amounts they owe, lost or misapplied their loan payments, and violated clear requirements of bankruptcy law and procedure. Recent investigations of consumer bankruptcy cases reveal widespread abuse of the bankruptcy code, ranging from the filing of unsupported or overinflated proofs of claim to violations of the automatic stay and discharge injunction. Such practices undermine consumer bankruptcy’s central goals to provide consumer debtors a fresh financial start and to achieve the fair treatment of and distribution of assets to creditors. Because many debtors affected …

An Alternative Universe To §1113 Of The Bankruptcy Code: The Mediation Between American Airlines And Its Workforce, Max Schatzow

Max Schatzow

This paper explores mandatory mediation as an alternative method to the current §1113 framework, where judges determine the fate of collective bargaining agreements. Through dialogue, this paper will explore one potential outcome to the ongoing dispute between the various labor unions with collective bargaining agreements with American Airlines.

The Indentured Generation: Bankruptcy And Student Loan Debt, Daniel A. Austin

Daniel A. Austin

A generation of Americans has borrowed heavily for their education, and hundreds of thousands of them are deeply in debt. Some 37 million Americans owe a total of approximately $1 trillion dollars in student loans. They constitute an Indentured Generation as many of them will be burdened with student loan debt for much of their lives. With one of the worst job markets in decades, members of the Indentured Generation who are in particularly dire circumstances will turn to bankruptcy for a “fresh start.” But most student loan debtors will not get relief through bankruptcy. This is because the Bankruptcy …

The Indentured Generation: Bankruptcy And Student Loan Debt, Daniel Austin

Daniel A. Austin

THE INDENTURED GENERATION:

BANKRUPTCY AND STUDENT LOAN DEBT

By Daniel A. Austin

Associate Professor, Northeastern University School of Law

A generation of Americans has borrowed heavily for their education, and hundreds of thousands of them are deeply in debt. Some 37 million Americans owe a total of approximately $1 trillion dollars in student loans. They constitute an Indentured Generation as many of them will be burdened with student loan debt for much of their lives. With one of the worst job markets in decades, members of the Indentured Generation who are in particularly dire circumstances will turn to bankruptcy for …

Risk Based Student Loans, Michael Simkovic

Michael N Simkovic

Credit markets serve a vital function in capitalist economies: evaluating the riskiness of a range of possible investments and channeling resources toward those investments that investors believe are most likely to prove successful. This process is known as the “risk-based pricing” of credit. Ideally, risk-based pricing should lead to lower cost of capital for lower risk investment choices with larger rewards, and therefore more investment in such promising activities. Conversely, risk-based pricing should lead to higher costs of capital, and therefore less investment, in high-risk activities with relatively low rewards. If creditors are well informed and analytic, and borrowers respond …

Protective Orders In The Bankruptcy Court: The Congressional Mandate Of Bankruptcy Code Section 107 And Its Constitutional Implications, Michelle M. Harner, William T. Bodoh

Michelle M. Harner

No abstract provided.

The Denial Of Future Tort Claims In In Re Piper Aircraft: Will The Court's Quick-Fix Solution Keep The Debtor Flying High Or Bring It Crashing Down?, Michelle M. Harner

Michelle M. Harner

No abstract provided.

A Chapter 11 Debtor's Life After Oct. 17: Not So Bad If You Effectively Plan, Michelle M. Harner, Carl E. Black

Michelle M. Harner

No abstract provided.

Sublicensing From A Distressed Company: Are You Placing Your Future In The Debtor's Hands?, Michelle M. Harner, David A. Beck

Michelle M. Harner

No abstract provided.

Predicting The Frequency Of Large Public Company Bankruptcies, Patrick Liu

Patrick Liu

From 1980 to 2010, the number of large corporate bankruptcies in the U.S. spanned the gamut from five in 1981 to ninety-seven in 2001. In 2009, there were ninety-one large corporate bankruptcies. Past researchers have used firm-specific characteristics to predict the likelihood of bankruptcy for a given firm. However, limited research exists regarding which factors can explain nationwide fluctuations in the number of large corporate bankruptcies. Because macroeconomic variables pose systematic risk for all firms, macroeconomic variables’ yearly variations could shed light on bankruptcy filings’ yearly variations. Moreover, utilizing lagged variables, using the prior year’s change in a macroeconomic variable, …

2001: A Code Odyssey (New Dawn For The Article 9 Secured Creditor), Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

The Treatment Of Consignments In Bankruptcy: Two Codes And Their Fictions, At Play, In The Fields, Ingrid Michelsen Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

The Latest Developments In Article 9, Ingrid Michelsen Hillinger, Mark Leipold, Margit Livingston

Ingrid Michelsen Hillinger

No abstract provided.

The Story Of Ymps ("Yield Maintenance Premiums") In Bankruptcy, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

Environmental Affairs In Bankruptcy: 2004, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

Introduction: The Future Of Chapter 11: A Symposium Cosponsored By The American College Of Bankruptcy, Ingrid Michelsen Hillinger

Ingrid Michelsen Hillinger

Professor Ingrid Michelsen Hillinger offers introductory remarks to the Symposium: The Future of Chapter 11, cosponsored by the American College of Bankruptcy and the Boston College Law Review and held at the Boston College Law School on April 22, 2005.

Righting Others' Wrongs: A Critical Analysis Of Clawback Suits In The Wake Of Madoff-Type Ponzi Schemes And Other Financial Frauds, Amy Sepinwall

Amy J. Sepinwall

In a typical Ponzi scheme, early investors earn “profits” not through any legitimate investment activity on the part of the Ponzi scheme operator; instead the operator simply transfers money that later investors deposit to the earlier investors who seek redemptions. As such, when the scheme goes bust, as it must, the Ponzi scheme operator will not have enough money to cover all of the investors’ deposits, let alone the earnings on those deposits that the investors thought they were owed. Should the scheme’s winners – i.e., those who withdrew more money than they deposited – be compelled to return their …

The Impairment Of Secured Creditors’ Rights In Reorganization: A Study Of The Relationship Between The Fifth Amendment And The Bankruptcy Clause, James S. Rogers

James S. Rogers

Some commentators and courts have argued that the takings clause of the fifth amendment limits congressional power to interfere with property rights in bankruptcy proceedings. In this Article, Professor Rogers argues to the contrary that, at least with respect to prospective bankruptcy legislation, the bankruptcy clause itself and not the fifth amendment limits congressional bankruptcy power. His view derives from nineteenth and twentieth century case law, particularly cases assessing the validity of restraints on secured creditors' foreclosure rights, and from the theoretical difficulty of distinguishing between supposedly protected property rights and supposedly unprotected contract interests. Professor Rogers also sharply criticizes …