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When Is A Dog’S Tail Not A Leg?: A Property-Based Methodology For Distinguishing Sales Of Receivables From Security Interests That Secure An Obligation, Steven L. Harris, Charles W. Mooney Jr. 2014 University of Pennsylvania Law School

When Is A Dog’S Tail Not A Leg?: A Property-Based Methodology For Distinguishing Sales Of Receivables From Security Interests That Secure An Obligation, Steven L. Harris, Charles W. Mooney Jr.

Faculty Scholarship

There are two principal ways in which a firm that is owed money payable in the future but needs the money now may use its rights to payment (“receivables”) to obtain the needed financing. It might sell its receivables, or it might borrow and use the receivables as collateral to secure the loan. Different legal consequences follow depending on whether the transaction is a true sale or is a security interest that secures an obligation (a “SISO”).


These legal consequences are particularly salient when the firm enters bankruptcy. If the transaction is a sale, then the buyer can collect the ...


Taxing Bankrupts, Shu-Yi Oei 2014 Boston College Law School

Taxing Bankrupts, Shu-Yi Oei

Boston College Law Review

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 ...


Exploring Chapter 11 Reform: Corporate And Financial Institution Insolvencies; Treatment Of Derivatives -, Michelle M. Harner 2014 University of Maryland Francis King Carey School of Law

Exploring Chapter 11 Reform: Corporate And Financial Institution Insolvencies; Treatment Of Derivatives -, Michelle M. Harner

Congressional Testimony

No abstract provided.


Just Following Orders: The Fifth Circuit's Incomplete Analysis Of Chapter 11 Bankruptcy Cramdown In In Re Village At Camp Bowie, Jordan A. Smith 2014 Boston College Law School

Just Following Orders: The Fifth Circuit's Incomplete Analysis Of Chapter 11 Bankruptcy Cramdown In In Re Village At Camp Bowie, Jordan A. Smith

Boston College Law Review

On February 26, 2013, the U.S. Court of Appeals for the Fifth Circuit in In re Village at Camp Bowie held that the Bankruptcy Code cramdown requirement in 11 U.S.C. § 1129(a)(10) that at least one impaired class accept the reorganization plan did not distinguish between economic and discretionary impairment. Rejecting the Eighth Circuit’s holding that § 1129(a)(10) included a motive inquiry, the Fifth Circuit instead held that no policy implications could be read into the plain language of the provision. This Comment argues that the Fifth Circuit correctly interpreted § 1129(a)(10) as ...


Honesty Is The Best Policy: Why Good Faith Should Be Required In Chapter 7 Bankruptcies Under § 707(A), Justin Forcier 2014 SelectedWorks

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 ...


When Should Bankruptcy Be An Option (For People, Places Or Things)?, David A. Skeel Jr. 2014 University of Pennsylvania Law School

When Should Bankruptcy Be An Option (For People, Places Or Things)?, David A. Skeel Jr.

Faculty Scholarship

When many people think about bankruptcy, they have a simple left-to-right spectrum of possibilities in mind. The spectrum starts with personal bankruptcy, moves next to corporations and other businesses, and then to municipalities, states, and finally countries. We assume that bankruptcy makes the most sense for individuals; that it makes a great deal of sense for corporations; that it is plausible but a little more suspect for cities; that it would be quite odd for states; and that bankruptcy is unimaginable for a country.

In this Article, I argue that the left-to-right spectrum is sensible but mistaken. After defining “bankruptcy ...


The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin 2014 SelectedWorks

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

Timothy R Tarvin

An innocent debtor, who is either ignorant of her constitutional right to the privilege against self-incrimination or ineffectual in asserting it, may find herself wrongfully convicted and imprisoned in a criminal matter, due to unwitting complicity in the delivery of testimony or documents in her bankruptcy case. This lack of understanding poses a serious risk to debtors, and especially affects the increasing number of pro se debtors in bankruptcy.

The privilege extends to debtors in bankruptcy proceedings. However, a debtor who fails to properly invoke the privilege waives her rights. This possibility is made more probable because there is no ...


Aspectos Procesales De La Reforma Financiera En Mexico, Jorge E. De Hoyos Walther, De Hoyos y Aviles 2014 SelectedWorks

Aspectos Procesales De La Reforma Financiera En Mexico, Jorge E. De Hoyos Walther, De Hoyos Y Aviles

Jorge E De Hoyos Walther

Resumen de los aspectos procesales de la reforma financiera aprobada en México en el año de 2014. Nuevas facultades de la CONDUSEF y derechos de los usuarios de servicios financieros.


Single Point Of Entry And The Bankruptcy Alternative, David A. Skeel Jr. 2014 University of Pennsylvania Law School

Single Point Of Entry And The Bankruptcy Alternative, David A. Skeel Jr.

Faculty Scholarship

This Essay, which will appear in Across the Great Divide: New Perspectives on the Financial Crisis, a Brookings Institution and Hoover Institution book, begins with a brief overview of concerns raised by the Lehman Brothers bankruptcy about the adequacy of our existing architecture for resolving the financial distress of systemically important financial institutions. The principal takeaway of the first section is that Title II as enacted left most of these issues unanswered. By contrast, the FDIC’s new single point of entry strategy, which is introduced in the second section, can be seen as addressing nearly all of them. The ...


The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran 2014 Boston College Law School

The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran

Boston College Law Review

On April 30, 2013, the U.S. Court of Appeals for the Ninth Circuit in In re Fitness Holdings International, Inc. held that bankruptcy courts have the authority to recharacterize debt as equity when the obligation does not constitute a “right to payment” under state law. In so holding, the court adhered to a state law approach and declined to adopt a federal rule for debt recharacterization, thus creating a split amongst the federal appeals courts. This Comment argues that the Ninth Circuit’s state law approach is more desirable than promulgating a federal debt recharacterization rule because state law ...


Banking And The Social Contract, Mehrsa Baradaran 2014 Notre Dame Law School

Banking And The Social Contract, Mehrsa Baradaran

Notre Dame Law Review

This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give ...


Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz 2014 Duke Law

Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz

Faculty Scholarship

This article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. To that end, the article differentiates defaults caused by insolvency from defaults caused by illiquidity. The latter, which are potentiated by rollover risk (the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt), are not only plausible but have occurred in the past. Moreover, the ongoing controversy over the federal debt ceiling and the rise of the shadow-banking system make these types of ...


Activist Investors, Distressed Companies, And Value Uncertainty, Michelle M. Harner, Jamie Marincic Griffin, Jennifer Ivey-Crickenberger 2014 University of Maryland Francis King Carey School of Law

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

Faculty Scholarship

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 ...


Goals And Governance In Municipal Bankruptcy, Juliet M. Moringiello 2014 Washington and Lee University School of Law

Goals And Governance In Municipal Bankruptcy, Juliet M. Moringiello

Washington and Lee Law Review

The years from 2011 to 2013 were remarkable in municipal bankruptcy terms. During those years, several cities and counties took the rare step of filing for bankruptcy under Chapter 9 of the Bankruptcy Code. When Detroit filed for bankruptcy in July 2013, it became the largest city measured by both population and outstanding debt to file for Chapter 9. The recent filings challenge the conventional wisdom that Chapter 9 is poorly tailored to the rehabilitation needs of larger cities and counties. Those who have written about Chapter 9 in the past twenty years have treated Chapter 9 and state intervention ...


Derivatives And Collateral: Balancing Remedies And Systemic Risk, Steven L. Schwarcz 2014 Duke Law

Derivatives And Collateral: Balancing Remedies And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article examines whether exempting those transactions from bankruptcy’s automatic stay, including the stay of foreclosure actions against collateral, is necessary or appropriate in order to minimize systemic risk.


The Virtue In Bankruptcy, Matthew Adam Bruckner 2013 SelectedWorks

The Virtue In Bankruptcy, Matthew Adam Bruckner

Matthew Adam Bruckner

In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics ...


The Unlucky Penny: How $0.01 In Collateral Value Can Limit The Debtor's Ability To Strip Off A Junior Mortgage In A Chapter 7 Bankruptcy Proceeding, Keri Mahoney 2013 Touro College Jacob D. Fuchsberg Law Center

The Unlucky Penny: How $0.01 In Collateral Value Can Limit The Debtor's Ability To Strip Off A Junior Mortgage In A Chapter 7 Bankruptcy Proceeding, Keri Mahoney

Touro Law Review

No abstract provided.


Suffolk County Resident Arrested For Grand Larceny For Stealing Televisions From Walmart, Shawn R. Kassman 2013 SelectedWorks

Suffolk County Resident Arrested For Grand Larceny For Stealing Televisions From Walmart, Shawn R. Kassman

Shawn R Kassman

Man was arrested in Suffolk County in the town of East Setauket and charged with fourth-degree grand larceny. Police said he put 55-inch television in a shopping cart at Walmart in East Setauket and left the store through the garden area.command was probably charged with grand larceny because the item was greater than $1000. If you take an item that is more than thousand dollars you will be charged with grand larceny. Typically if the merchandise is less than $1000 one would be charged with shoplifting also called petit larceny.

f you have New York Criminal Law related questions ...


"Helpless" Groups, Troy A. McKenzie 2013 NELLCO

"Helpless" Groups, Troy A. Mckenzie

New York University Public Law and Legal Theory Working Papers

This Essay confronts the idea of the “helpless” group—that is, the group comprising individuals who are thought to be incapable of protecting their own interests. That idea plays an important role in the history of the modern class action, which has been justified as a device providing redress for “small claims held by small people.” The rhetoric of helplessness did not begin with the class action. Instead, the concern about helpless individuals corralled into a group and preyed upon by their adversaries (and their own lawyers) originated in the world of business bankruptcy before it made its way to ...


Bankruptcy And The Future Of Aggregate Litigation: The Past As Prologue?, Troy A. McKenzie 2013 NELLCO

Bankruptcy And The Future Of Aggregate Litigation: The Past As Prologue?, Troy A. Mckenzie

New York University Public Law and Legal Theory Working Papers

This Article considers the recent decline of the class action by comparing earlier, parallel developments in the law of business reorganizations. Until the 1930s, the equity receivership was the procedural device used to reorganize firms in financial distress, because a receivership, like a class action, could achieve a binding group resolution among dispersed claimants. Although initially viewed favorably, the receivership came under sustained attacks from political, academic, and judicial critics. These critics, like today’s critics of the class action, challenged the legitimacy of the receivership process. In particular, they painted the lawyers in receivership cases as conflicted actors who ...


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