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Full-Text Articles in Bankruptcy Law

Cybergenics Ii: Precedent And Policy Vs. Plain Meaning, Nancy A. Haller Nov 2017

Cybergenics Ii: Precedent And Policy Vs. Plain Meaning, Nancy A. Haller

Maine Law Review

On September 20, 2002, the U.S. Court of Appeals for the Third Circuit issued a panel opinion concluding that a court may not authorize a creditors' committee to commence an avoidance action in the trustee's name, on behalf of a bankruptcy estate. The decision shocked the bankruptcy bar and raised such a stir that many commentators raised it to the status of one of the “top cases of the year.” Furthermore, within two months, the Second Circuit came down with a squarely contrary decision, reaffirming the validity of the practice within the Second Circuit and failing to even ...


Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott Nov 2017

Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott

Utah Law Review

This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically ...


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. Nov 2017

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Northwestern University Law Review

This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process.

Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that ...


Bankruptcy - The Last Resort: Protecting The Diocesan Client From Potential Liability Judgments, John B. Jarboe Oct 2017

Bankruptcy - The Last Resort: Protecting The Diocesan Client From Potential Liability Judgments, John B. Jarboe

The Catholic Lawyer

No abstract provided.


Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith Oct 2017

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Maine Law Review

For decades, scholars have written about credit cards and attorney’s fees, but rarely together. This Article addresses the current financial crises of Americans, the credit card industry (including the Bankruptcy Abuse Prevention and Consumer Protection Act) and attorney’s fees—perhaps a unique combination. It is based upon an actual case that left the putative debtor in a worse financial crisis than before the lawsuit was filed. This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney’s fees, as well as the pitfalls in attorney ...


Tipping The Scales: Balancing The Weight Of Equity With Loan Rescissions In Bankruptcy, Corey Scott Hadley Oct 2017

Tipping The Scales: Balancing The Weight Of Equity With Loan Rescissions In Bankruptcy, Corey Scott Hadley

Maine Law Review

Prior to the passage of the Truth-in-Lending Act (TILA) in 1968, consumers were vulnerable to many deceptive practices employed by creditors when participating in loan transactions. Following the passage of TILA, it was the hope of Congress that consumers would now have the tools necessary to fend off predatory or deceptive credit terms buried within the fine print of a loan agreement. One of the options afforded to consumers facing a suspect loan agreement is the right to rescission. When lenders, creditors, and other parties in the credit transaction “fail to provide the consumer with proper disclosures about the loan ...


Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun Oct 2017

Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun

Pepperdine Dispute Resolution Law Journal

This note makes a cost-benefit analysis of the U.S. Bankruptcy Code Chapter 15 and International Commercial Arbitration in the context of cross-border bankruptcy proceedings. Part I sets the stage by providing two opposing theoretical approaches to cross-border insolvencies: territorialism and universalism. Part II introduces the UNCITRAL’s Model Law on Cross-Border Insolvency, which is incorporated into the U.S. Bankruptcy Code Chapter 15. It presents how the Model Law has attempted to compensate for the lack of a global court by incorporating universalism. Part III demonstrates that while Chapter 15 sounds good in theory, it fails to address the ...


Restoring Bankruptcy’S Fresh Start, Jonathan S. Hermann Oct 2017

Restoring Bankruptcy’S Fresh Start, Jonathan S. Hermann

Fordham Law Review

The discharge injunction, which allows former debtors to be free from any efforts to collect former debt, is a primary feature of bankruptcy law in the United States. When creditors have systemically violated debtors’ discharge injunctions, some debtors have attempted to challenge those creditors through a class action lawsuit in bankruptcy court. However, the pervasiveness of class-waiving arbitration clauses likely prevents those debtors from disputing discharge injunction violations outside of binding, individual arbitration. This Note first discusses areas of disagreement regarding how former debtors may enforce their discharge injunctions. Then, it examines the types of disputes that allow debtors to ...


Bankruptcy: Activist Investors And Chapter 11, Jared Ellias Sep 2017

Bankruptcy: Activist Investors And Chapter 11, Jared Ellias

The Judges' Book

No abstract provided.


Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow Sep 2017

Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow

Law & Economics Working Papers

Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentently because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of ...


Ln Mgmt. Llc Series 5105 Portraits Place V. Green Tree Loan Servicing Llc, 133 Nev. Adv. Op. 55 (Aug. 03, 2017), Wesley Lemay Jr. Aug 2017

Ln Mgmt. Llc Series 5105 Portraits Place V. Green Tree Loan Servicing Llc, 133 Nev. Adv. Op. 55 (Aug. 03, 2017), Wesley Lemay Jr.

Nevada Supreme Court Summaries

If a homeowner that owns property in Nevada but declares bankruptcy in Texas and fails to list the Home Owners Association (HOA) as a creditor, the HOA cannot violate the automatic stay imposed by the bankruptcy and sell the property. If the property is sold in violation of the automatic stay, the sale is invalid. Under Ninth Circuit law, the sale is void ab initio while the Fifth Circuit holds that these types of sales are voidable, but can be approved by the bankruptcy court.


Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone Aug 2017

Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone

SMU Law Review

No abstract provided.


Sovereign Debt And Moral Hazard: The Role Of Collective Action And Contractual Ambiguity, Marcel Kahan, Shmuel Leshem Aug 2017

Sovereign Debt And Moral Hazard: The Role Of Collective Action And Contractual Ambiguity, Marcel Kahan, Shmuel Leshem

New York University Public Law and Legal Theory Working Papers

The ambiguous phrasing of pari passu (equal treatment) clauses in sovereign debt contracts has long ba ed commentators. We show that in the presence of asymmetric information on a sovereign borrower’s ability to pay, an ambiguous pari passu clause gives rise to a collective action problem among creditors that can reduce sovereign moral hazard. By varying the clause ambiguity, parties can induce an (ex ante) optimal probability of costly renegotiation breakdown resulting from creditors’failure to coordinate. As information asymmetry decreases, a pari passu clause becomes a coarser instrument for configuring creditors’incentives and thereby resolving moral hazard.


K&P Homes V. Christiana Trust, 133 Nev. Adv. Op. 51 (July 27, 2017), Yolanda Carapia Jul 2017

K&P Homes V. Christiana Trust, 133 Nev. Adv. Op. 51 (July 27, 2017), Yolanda Carapia

Nevada Supreme Court Summaries

The Court determined that the SFR Investments Pool 1, LLC v. U.S. Bank, N.A. decision, extinguishing first security interests, applies retroactively to all foreclosures occurring prior to the date of the decision and since NRS 116.3116’s inception.


Taxing Bankrupts, Shu-Yi Oei Jul 2017

Taxing Bankrupts, Shu-Yi Oei

Shu-Yi Oei

When a debtor goes bankrupt and limited assets have to be divided between competing creditors, should unpaid taxes owed to the government be paid before the debts owed to other creditors? This Article defends the notion that some tax debts should be awarded priority. Insofar as bankruptcy protection transfers the risk of financial distress from a debtor to her creditors, the tax priority debate should be understood as a fight about how much debtor default risk the government should have to assume relative to other creditors. This Article argues that the government’s share of debtor default risk should be ...


Husky International Electronics, Inc. V. Ritz: Rethinking Actual Fraud, Badges Of Fraud, And Pleading Standards In Federal Bankruptcy Litigation, Meagan George Jul 2017

Husky International Electronics, Inc. V. Ritz: Rethinking Actual Fraud, Badges Of Fraud, And Pleading Standards In Federal Bankruptcy Litigation, Meagan George

Maryland Law Review

No abstract provided.


Trump Entertainment Resorts: Three Bankruptcies And The Failure To Make Atlantic City Great Again, Ryan Gallagher, Andrew Hale Jun 2017

Trump Entertainment Resorts: Three Bankruptcies And The Failure To Make Atlantic City Great Again, Ryan Gallagher, Andrew Hale

Chapter 11 Bankruptcy Case Studies

No abstract provided.


Bankruptcy's Gray Area: Are Bankruptcy Courts "Courts Of The United States"?, Angelo G. Labate May 2017

Bankruptcy's Gray Area: Are Bankruptcy Courts "Courts Of The United States"?, Angelo G. Labate

Notre Dame Law Review

This Note seeks to evaluate the circuit split regarding the status of bankruptcy courts and propose a solution to the problem through an efficiency-based lens. After laying out a brief history of bankruptcy in the United States and the current bankruptcy system and outlining the circuit split within the courts of appeals as to the proper definition of “courts of the United States,” this Note will analyze the statutory language, the United States Code, and the relevant historical context to determine if the bankruptcy courts qualify as “courts of the United States.” This Note will argues that the bankruptcy courts ...


Turning The Page: The Demise Of The “Queenan Doctrine” Requiring The Adoption Of A Foreclosure Valuation Methodology In Chapter 11 Cases, Harrison Denman May 2017

Turning The Page: The Demise Of The “Queenan Doctrine” Requiring The Adoption Of A Foreclosure Valuation Methodology In Chapter 11 Cases, Harrison Denman

University of Miami Business Law Review

This Article traces the evolution of the default standard applied by bankruptcy courts to valuing a secured lender’s collateral under section 506(a) for purposes of determining whether a “diminution in value” has occurred sufficient to trigger the need for adequate protection. Historically, bankruptcy courts applied a standard premised on the scholarship of Judge Queenan of the Bankruptcy Court for the District of Massachusetts. That standard called for, absent contractual language to the contrary, application of a foreclosure valuation methodology regardless of the actual or anticipated use of such collateral during the chapter 11 cases. In recent years, there ...


Rdio, Inc.: The Bankruptcy Of A Music Streaming Service That Listened To The Wrong Tune, Jeremy Boyd, Phillip Swan Apr 2017

Rdio, Inc.: The Bankruptcy Of A Music Streaming Service That Listened To The Wrong Tune, Jeremy Boyd, Phillip Swan

Chapter 11 Bankruptcy Case Studies

No abstract provided.


How To Get Away With Merger: The American Airlines Bankruptcy, Kelsey Cunningham Osborne, Christopher K. Coleman Apr 2017

How To Get Away With Merger: The American Airlines Bankruptcy, Kelsey Cunningham Osborne, Christopher K. Coleman

Chapter 11 Bankruptcy Case Studies

No abstract provided.


Parka Problems: The 2009 Eddie Bauer Bankruptcy, J. Logan Wilson, S. Ashton Smith Apr 2017

Parka Problems: The 2009 Eddie Bauer Bankruptcy, J. Logan Wilson, S. Ashton Smith

Chapter 11 Bankruptcy Case Studies

No abstract provided.


Slight Turbulence Ahead: The Chapter 11 Bankruptcy Of Republic Airways, Sam Ferguson, Chad Talbot Apr 2017

Slight Turbulence Ahead: The Chapter 11 Bankruptcy Of Republic Airways, Sam Ferguson, Chad Talbot

Chapter 11 Bankruptcy Case Studies

No abstract provided.


How Absolute Is The Absolute Priority Rule In Bankruptcy? The Case For Structured Dismissals, Bruce Grohsgal Apr 2017

How Absolute Is The Absolute Priority Rule In Bankruptcy? The Case For Structured Dismissals, Bruce Grohsgal

William & Mary Business Law Review

This Article challenges the view that the absolute priority rule applies to a “structured dismissal” in a chapter 11 bankruptcy case, namely a court-approved settlement of certain claims by or against the debtor followed by the dismissal of the case. Under that view, the bankruptcy court cannot approve a settlement that makes a distribution to holders of junior claims unless it also provides for payment of all senior claims in full. The Supreme Court considered the question in the fall of 2016 in Czyzewski v. Jevic Holding Corp. (In re Jevic Holding Corp.). The question before the Court is: “Whether ...


How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson Mar 2017

How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson

Catholic University Law Review

With the rise of social media use, legal disputes have surfaced with litigants looking to the courts to determine issues of ownership and legal authority. As a matter of first impression, a U.S. Bankruptcy Court in Texas held that a Twitter and Facebook social media account were to be regarded as property of the estate pursuant to Section 541 of the Bankruptcy Code. The court analogized the social media accounts to subscriber lists because they provide valuable access to customers. Although the court addressed the question of whether social media applications are to be regarded as property in bankruptcy ...


Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin Mar 2017

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere ...


The New Bond Workouts, William W. Bratton, Adam J. Levitin Feb 2017

The New Bond Workouts, William W. Bratton, Adam J. Levitin

Faculty Scholarship

Bond workouts are a famously dysfunctional method of debt restructuring, ridden with opportunistic and coercive behavior by bondholders and bond issuers. Yet since 2008 bond workouts have quietly started to work. A cognizable portion of the restructuring market has shifted from bankruptcy court to out-of-court workouts by way of exchange offers made only to large institutional investors. The new workouts feature a battery of strong-arm tactics by bond issuers, and aggrieved bondholders have complained in court. The result has been a new, broad reading of the primary law governing workouts, section 316(b) of the Trust Indenture Act of 1939 ...


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. Feb 2017

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality ...


The Role Of History And Culture In Developing Bankruptcy And Insolvency Systems: The Perils Of Legal Transplantation, Nathalie Martin Jan 2017

The Role Of History And Culture In Developing Bankruptcy And Insolvency Systems: The Perils Of Legal Transplantation, Nathalie Martin

Nathalie Martin

In this Article, Professor Nathalie Martin examines societal attitudes toward debt and financial failure in the context of two global trends, the liberalization of bankruptcy and insolvency laws, and the increased availability of consumer credit around the world. The Article begins with a description of the history of the U.S. economy, its risk-oriented capitalist ethos, its consumer culture, and its resulting consumer and business bankruptcy laws. The Article next briefly addresses the personal bankruptcy systems of Continental Europe, noting that in some places, U.S.-style bankruptcy systems have been enacted but not necessarily accepted. Professor Martin then discusses ...


Bankruptcy, Honorable Harlin D. Hale, Amber M. Carson Jan 2017

Bankruptcy, Honorable Harlin D. Hale, Amber M. Carson

SMU Annual Texas Survey

No abstract provided.