Open Access. Powered by Scholars. Published by Universities.®

Bankruptcy Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 2182

Full-Text Articles in Bankruptcy Law

The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak Jun 2018

The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak

University of Miami International and Comparative Law Review

No abstract provided.


Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen Jun 2018

Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen

University of Southern California Legal Studies Working Paper Series

Financial distress has hit higher education. More and more universities and colleges are facing existential challenges as the competition for a dwindling number of students has put a strain on revenues. Unlike leaders in other industries, the presidents and chancellors of a financially distressed institutions of higher education cannot explore the possibility of a Chapter 11 filing under the Bankruptcy Code to restructure their obligations so that they align better with their revenues. Federal law prohibits Title IV loans – the lifeblood of virtually every university and college – from being made to students who attend a school that is in an ...


Debt Stigma And Social Class, Michael D. Sousa Jun 2018

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social ...


The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb Jun 2018

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were ...


Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair Jun 2018

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming


A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo May 2018

A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo

Boston College Law Review

On February 27, 2017, in In re Cowen, the U.S. Court of Appeals for the Tenth Circuit held that only affirmative actions to either obtain possession or exercise control over property of the bankruptcy estate constitute violations of the automatic stay provision. In doing so, the court concluded that the passive retention of an asset that was acquired pre-petition was not a violation of the automatic stay, and that the creditor had no obligation to relinquish the asset to the bankruptcy estate. This Comment argues that the Tenth Circuit misinterpreted the automatic stay provision of the Bankruptcy Code, disregarding ...


Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague May 2018

Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague

Catholic University Law Review

Section 1129 of the Bankruptcy Code allows a debtor to reorganize its plan. But a reorganization must first be approved by at least one “impaired class,” meaning one-half of those in the impaired class as well as two-thirds of the total amount of claims within the impaired class must vote “yes” to reorganization. Within this lens, the composition of the debtor’s classes has a substantial impact on whether a reorganization attempt will be successful. Clearly, this incentivizes debtors to group their claims in a way that maximizes their chances of gaining approval for reorganization.

As such, courts are now ...


Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk May 2018

Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk

Maine Law Review

Under the Bankruptcy Reform Act of 1978 (the Code), the trustee in bankruptcy has the duty to seek to avoid “preferential” transfers of the debtor's property made ninety days or less before the date of the filing of the bankruptcy case. Because of the delay that may occur between the time a check in payment of a debt is delivered by the debtor and when it is honored by the drawee bank, determining when the transfer was made to the payee-creditor has been a difficult issue for courts to resolve. The Supreme Court recently addressed this problem when it ...


Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman May 2018

Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman

UNLV Gaming Law Journal

No abstract provided.


Formailzing Chapter 9'S Experts, Laura N. Coordes May 2018

Formailzing Chapter 9'S Experts, Laura N. Coordes

Michigan Law Review

Chapter 9 of the U.S. Bankruptcy Code has many shortcomings. One of the most persistent, yet understudied, problems judges face in chapter 9 is also a problem that exists in other areas of bankruptcy law: the sheer difficulty of applying generalized plan confirmation standards to wildly different, highly specialized entities. In practice, judges have turned to experts—individuals well versed in municipal finance, mediation, and the particular debtor com-munity—to help overcome this problem in chapter 9. These experts often per-form critical roles in a municipal bankruptcy case, including conducting mediations, investigating the municipality’s finances, and even helping ...


Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow Mar 2018

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 ...


Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov Mar 2018

Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov

Boston College Law Review

Section 523(a)(2)(A) of the Bankruptcy Code provides that a debt is nondischargeable if it is obtained by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” In 2017, in In re Appling, the United States Court of Appeals for the Eleventh Circuit held that a false oral statement by a debtor to his creditor regarding a single asset constituted a statement respecting the debtor’s financial condition, allowing the debtor to discharge his liability to pay the debt. This ruling deepened a split among the courts as to ...


Agen Viagra Asli Usa 0821-6765-4444 Obat Tahan Lama Di Bali , Denpasar Cod, Rt Satu Feb 2018

Agen Viagra Asli Usa 0821-6765-4444 Obat Tahan Lama Di Bali , Denpasar Cod, Rt Satu

TOKO OBAT VITALITAS BALI

Alamat Toko – Agen – Jual Viagra Asli Usa 100mg Di Bali Denpasar | Penjual Obat Vitalitas Viagra Usa Asli Di Denpasar | Agen Resmi Obat Viagra Original Usa Di Bali | Jual Viagra Usa Original Di Denpasar | Jual Obat Penguat Ereksi Di Bali | Obat Kuuat Sex Viagra Usa Asli | Obat Penguat Vitalitas Di Denpasar Bali COD / Antar Gratis

Jual Viagra Asli Samarinda, Adalah Obat Kuat Pria Perkasa Meningkatkatkan Kejantanan Pria Mengatasi Lemah Syawat Kurang Ereksi Dan Impotensi Kuat Tahan Lama Meskipun Sudah Ijakulasi Dini Aman Dan Terpercaya
APA ITU OBAT KUAT VITALITAS VIAGRA PFIZER USA ...


The Fresh Start Canon, Jonathon S. Byington Feb 2018

The Fresh Start Canon, Jonathon S. Byington

Florida Law Review

A primary policy of bankruptcy law is to give consumer debtors a “fresh start” by discharging their debt. A rival policy is that the discharge of debt is a selectively conferred privilege that is not granted in some situations. For example, society is unwilling to pardon debt related to embezzlement or a domestic-support obligation. This “discharge restrictions” policy is manifested in part by the Bankruptcy Code’s exceptions to discharge. The U.S. Supreme Court has repeatedly recognized the tension between the fresh start and discharge restriction policies. It has sought to achieve a fair balance between these policies by ...


Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart Feb 2018

Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart

Maine Law Review

The discharge injunction is an integral aspect of the “fresh start” that bankruptcy affords to many debtors. But there has been a growing threat to the viability of the bankruptcy discharge: zombie debt! Just when honest but unfortunate debtors think they have finally laid their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior. This Article discusses the motivation behind these questionable collection tactics and potential ...


The Scope Of Section 316(B) After Marblegate, Marcel Kahan Feb 2018

The Scope Of Section 316(B) After Marblegate, Marcel Kahan

New York University Law and Economics Working Papers

Section 316(b) of the Trust Indenture Act provides that right of any to receive payment of the principal and interest may not be impaired or affected without the holder’s consent. This article analyzes the recent case law on whether corporate restructurings that impair the practical ability of bondholders to obtain payment on their bonds violate Section 316(b) of the Trust Indenture Act. After concluding that the Court of Appeals for the Second Circuit was correct in confining the scope of Section 316(b) to formal amendments to core payment terms, the article turns to an issue left ...


A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra Jan 2018

A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra

Faculty Publications

Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking ...


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. Jan 2018

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 ...


Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz Jan 2018

Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz

Faculty Scholarship

To try to protect the stability of the financial system, regulators and policymakers have been extending bankruptcy-resolution techniques beyond their normal boundaries. To date, however, their efforts have been insufficient, in part because bankruptcy law traditionally has microprudential goals (to protect individual firms) whereas protecting financial stability is a “macroprudential” goal.

This Article seeks to derive a logical and consistent theory of how and why resolution-based regulation can help to stabilize the financial system. To that end, the Article identifies three possible regulatory approaches: reactive resolution-based regulation, which comprises variations on traditional bankruptcy; proactive resolution-based regulation, which consists of pre-planned ...


Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo Jan 2018

Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Faculty Scholarship

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if ...


Drilling When The Well Goes Dry: The Oklahoma Corporation Commission & The Police Power Exception To The Automatic Stay, Connor R. Bourland Jan 2018

Drilling When The Well Goes Dry: The Oklahoma Corporation Commission & The Police Power Exception To The Automatic Stay, Connor R. Bourland

Oklahoma Law Review

No abstract provided.


In Memory Of Roderick Glen Ayers, Jr. (1947–2017), Professor Of Law, St. Mary's University School Of Law, Craig A. Gargotta, William R. "Dick" Davis Jr. Jan 2018

In Memory Of Roderick Glen Ayers, Jr. (1947–2017), Professor Of Law, St. Mary's University School Of Law, Craig A. Gargotta, William R. "Dick" Davis Jr.

St. Mary's Law Journal

On September 27, 2017, Glen Ayers, a former professor at St. Mary’s School of Law, passed away suddenly and unexpectedly. Two St. Mary's alumni—Bankruptcy Judge Craig A. Gargotta (1989) and William R. “Dick” Davis, Jr. (1983)—have provided this tribute to an icon of San Antonio’s bankruptcy bar.


The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson Jan 2018

The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson

Washington and Lee Law Review

No abstract provided.


Ending Litigation And Financial Windfalls On Time-Barred Debts, Marc C. Mcallister Jan 2018

Ending Litigation And Financial Windfalls On Time-Barred Debts, Marc C. Mcallister

Washington and Lee Law Review

A trap for unsophisticated debtors, debt collectors often attempt to collect time-barred debts through written offers to settle those debts for a fraction of what is owed. Debtors typically respond to such offers in one of four ways. First, some debtors simply pay the offered settlement amount, usually 10%–40% of the total outstanding debt, thereby satisfying the debt in full. Second, those who wish to eliminate the debt but cannot pay the entire offered settlement amount will instead make a small payment, unwittingly reviving the statute of limitations on collections and making the entire debt judicially enforceable for several ...


Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben Dec 2017

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short paper to examine the Puerto Rico ...


Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello Dec 2017

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal ...


Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger Dec 2017

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.


Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz Dec 2017

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that ...


Consent, Coercion, And Bankruptcy Administration, S. Todd Brown Nov 2017

Consent, Coercion, And Bankruptcy Administration, S. Todd Brown

S. Todd Brown

No abstract provided.


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 ...