Law Commons^™

Bankruptcy, Taxes, And The Primacy Of Irs Refund Offsets: Copley V. United States, Michelle Lyon Drumbl

Scholarly Articles

The Bankruptcy Code and the Internal Revenue Code (I.R.C.) are statutory labyrinths of federal law. Copley v. United States called on the Fourth Circuit to resolve a question that arose when respective provisions of each collided. At the heart of Copley was a married couple seeking a fresh start with an expected $3,208 income tax refund. The Copleys wished to resolve their outstanding debts in bankruptcy and maximize the relief afforded to them under the Virginia homestead exemption provision, as permitted by the Bankruptcy Code. On the other side of the proverbial table was the Internal Revenue Service (IRS) armed …

Modern Waste Law, Bankruptcy, And Residential Mortgage, Jill M. Fraley

Scholarly Articles

Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a “work around” for state mortgage laws that prohibit personal deficiency judgments after foreclosure and are potentially non-dischargeable in bankruptcy.

While a recent wave of scholarship has addressed the problems of how the bankruptcy system handles mortgages, scholars have not yet explored the use of waste actions by lenders and how waste judgments intersect with bankruptcy and foreclosure. Using new …

Brief Of Professor Margaret Howard As Amicus Curiae In Support Of Respondents: Bank Of America, N.A. V. Caulkett, Margaret Howard

Scholarly Articles

None available.

Feeling Insecure—A State View Of Whether Investors In Municipal General Obligation Bonds Have A Mere Promise To Pay Or A Binding Obligation, Randle B. Pollard

Scholarly Articles

The City of Detroit's filing for municipal bankruptcy in July, 2013, has added to a continuing controversy of whether general obligation bondholders have a secured lien. The City of Detroit claimed its general obligation bondholders did not have a fully secured lien because the law of the state of Michigan did not create a statutory lien. Without the creation of a lien by state law, during the insolvency or bankruptcy of municipalities, general obligation bondholders will potentially have a mere promise to pay versus a binding obligation to pay, and therefore, will not have a secured lien. Treating otherwise secured …

Debarring Faithless Corporate And Religious Fiduciaries In Bankruptcy, Lyman P.Q. Johnson

Scholarly Articles

Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” …

Bankruptcy Federalism: A Doctrine Askew, Margaret Howard

Scholarly Articles

No abstract provided.

Bankruptcy Bondage, Margaret Howard

Scholarly Articles

Initially, it might seem an affront to the history of slavery in this country to suggest that similar concerns are raised by an expectation that debtors pay their debts. Nevertheless, certain aspects of the Bankruptcy Code present genuine constitutional difficulties under the Thirteenth Amendment. These difficulties have been recognized for several decades, albeit as a matter of speculation. Now, however, un- der the 2005 Amendments to the Bankruptcy Code, this issue is no longer speculative. Under the 2005 Amendments, an individual debtor may be put into a chapter 11 proceeding involuntarily, and re- quired to make payments under a plan …

The Law Of Unintended Consequences, Margaret Howard

Scholarly Articles

My purpose is to talk about the 2005 Amendments and how things are going with the new provisions. But where do you start, with a bad law? We could start with the enactment process, but that's old news now. And besides,you've already heard the line: "Some members of Congress could not be bought; for everyone else there was MasterCard." We could talk about the policy choices, and the 2005 Amendments clearly represent a shift in that respect--perhaps in the category of "seismic" or "cataclysmic."

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

Scholarly Articles

Not available.

Fairness, Responsibility, And Efficiency In The Bankruptcy Discharge: Are The Commission’S Recommendations Enough?, Veryl Victoria Miles

Scholarly Articles

No abstract provided.

The Nondischargeability Of Divorce-Based Debts In Bankruptcy: A Legislative Response To The Hardened Heart, Veryl Victoria Miles

Scholarly Articles

No abstract provided.

Assessing Modern Bankruptcy Law: An Example Of Justice, Veryl Victoria Miles

Scholarly Articles

The task undertaken in this article will be to consider how well modern bankruptcy law measures up to concepts of justice that have evolved from Catholic social thought. The application of Catholic social justice in the assessment of whether a law is "just" or "unjust" can be viewed as a rational progression in evaluating the quality of justice achieved under a law.

Bankruptcy Relief From Secured Tax Liens, Veryl Victoria Miles

Scholarly Articles

This article will discuss the rules of bankruptcy law that are most relevant to the treatment of prepetition secured tax claims. It also will discuss the consequences of these rules and how they affect the various parties to the bankruptcy proceeding: the debtor, the secured tax claimant, and the unsecured creditors.

Bankruptcy Practice In Virginia: A Multifaceted Experience, Veryl Victoria Miles

Scholarly Articles

No abstract provided.

Discharging Tax Liability In Bankruptcy, Veryl Victoria Miles

Scholarly Articles

This article will examine what the answer depends on: The kinds of tax liabilities individual debtors are typically burdened with upon entering the bankruptcy process and the extent to which these prepetition debts are dischargeable or nondischargeable in bankruptcy. The kinds of tax claims discussed in this article are unsecured tax claims. Accordingly, if a tax claim is secured by a lien against the debtor's property the following discussion would not be relevant.

The Bifurcation Of Undersecured Residential Mortgages Under Sec. 1322(B)(2) Of The Bankruptcy Code: The Final Resolution, Veryl Victoria Miles

Scholarly Articles

In August of 1992 the Fifth Circuit Court of Appeals, in its decision in Nobleman v. American Savings Bank (In re Nobleman), interpreted § 1322(b)(2) of the Code as prohibiting the bifurcation of a claim secured only by a lien against a debtor's principal residence. This decision is contrary to the position taken previously by the Courts of Appeals for the Second, Third, Ninth and Tenth Circuits on the same question. On December 7, 1992 the Supreme Court granted a petition for certiorari, filed by the debtor in Nobleman, to resolve the split now existing among the courts of appeals. …

A Debtor’S Right To Avoid Liens Against Exempt Property Under Section 522 Of The Bankruptcy Code: Meaningless Or Meaningful?, Veryl Victoria Miles

Scholarly Articles

This article reviews the conflict as it has taken form in the courts of appeal of several circuits. The first section of the article briefly discusses the legislative history of section 522, and the purpose of Congress in providing the debtor with both exemptions and lien avoidance powers under the Code. It next reviews the decisions of courts of appeal that have interpreted the extent of the "opt~out" powers granted to the states under section 522(b). The third and final section analyzes the two views on the question, and concludes that the better interpretation is that the states are not …

Interpreting The Nondischargeability Of Drunk Driving Debts Under Section 523(A)(9) Of The Bankruptcy Code: A Case Of Judicial Legislation, Veryl Victoria Miles

Scholarly Articles

This article presents a critical analysis of section 523(a)(9) and explores the appropriate limits of statutory construction in the judicial interpretations of the provision. Part I of the article includes a discussion of the history of section 523(a)(9) and why it was necessary for Congress to enact a special anti-drunk driving provision to assure that bankrupts could not escape financial liability for drunk driving debts under the Code. This section also will address how the addition of section 523(a)(9) has expanded and affected the options for nondischargeability determinations under the Code. Part II focuses on the (1) "inartfully drafted" language …

Determining The Limits Of Postpetition Interest Under Section 506(B) Of The Bankruptcy Code: In Re Ron Pair Enterprises, Veryl Victoria Miles

Scholarly Articles

This article will consider the merits of both sides of the debate that now engulfs Section 506(b), as presented primarily by the Sixth and Fourth Circuit Courts in Ron Pair Enterprises and Best Repair, respectively. After summarizing the arguments presented and the decision of the court in Ron Pair Enterprises, the article will present an analysis of the majority and minority views on the language of Section 506(b) and offer a critical assessment of the pre-Code law on the allowance of postpetition interest on over-secured claims.

From this assessment, this article will conclude that Section 506(b) should be interpreted in …

The Public Utility In Bankruptcy: A Reality, Veryl Victoria Miles

Scholarly Articles

No abstract provided.

Adequate Assurance Of Payment Under Section 366 Of The Bankruptcy Code: A Term For Interpretive Flexibility Or Judicial Confusion?, Veryl Victoria Miles

Scholarly Articles

This article will focus on the interpretive struggle that the courts have encountered in making determinations of what constitutes adequate assurance of payment under section 366 and how this struggle might be eliminated so as to make compliance with the requirements of adequate assurance of payment less of a problem for the utility and bankrupt debtor. It is the thesis of this article that section 366 determinations of adequate assurance have resulted in interpretive confusion, leaving debtors and creditors with little guidance as to what criteria should be considered in negotiating an adequate assurance of payment. The recommended solution to …

The Bankruptcy Discharge: Toward A Fresher Start, Doug Rendleman

Scholarly Articles

None available

Liquidation Bankruptcy Under The '78 Code, Doug Rendleman

Scholarly Articles

None available

Bankruptcy Revision: Process And Procedure, Doug Rendleman

Scholarly Articles

None available