The Fresh Start Canon, 2018 University of Florida Levin College of Law
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, 2018 University of Maine School of Law
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their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior.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, 2018 New York University
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 ...
Drilling When The Well Goes Dry: The Oklahoma Corporation Commission & The Police Power Exception To The Automatic Stay, 2018 University of Oklahoma College of Law
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.
On Dictas Trail: Espinosa's Messy Repercussions, 2017 Selected Works
On Dictas Trail: Espinosa's Messy Repercussions, Amir Shachmurove
Consent, Coercion, And Bankruptcy Administration, 2017 Selected Works
Consent, Coercion, And Bankruptcy Administration, S. Todd Brown
S. Todd Brown
No abstract provided.
Cybergenics Ii: Precedent And Policy Vs. Plain Meaning, 2017 University of Maine School of Law
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?, 2017 University of Wisconsin School of Law
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.
Bankruptcy On The Side, 2017 U.C. Berkeley School of Law
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, 2017 St. John's University School of Law
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, 2017 University of Maine School of Law
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, 2017 University of Maine School of Law
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?, 2017 Pepperdine University
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 ...
Rethinking Preemption And Constitutional Parameters In Bankruptcy, 2017 College of William & Mary Law School
Rethinking Preemption And Constitutional Parameters In Bankruptcy, Michelle M. Harner
William & Mary Law Review
Chapter 11 of the U.S. Bankruptcy Code allows financially distressed businesses to reorganize and emerge from bankruptcy free of their pre-bankruptcy debts and obligations. In general, a business can achieve this kind of “fresh start” by confirming a plan of reorganization or pursuing a going-concern sale that typically facilitates a change in ownership, a reduction in leverage, and the elimination of most claims against the company’s assets. Through these kinds of transactions, a business can emerge from bankruptcy with a stronger balance sheet and often a new ownership structure. It also can streamline operations by, for example, assuming ...
Restoring Bankruptcy’S Fresh Start, 2017 Fordham University School of Law
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, 2017 University of California, Hastings College of the Law
Bankruptcy: Activist Investors And Chapter 11, Jared Ellias
The Judges' Book
No abstract provided.
Fiduciary Duties In Bankruptcy And Insolvency, 2017 University of Michigan Law School
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.
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, 2017 Southern Methodist University
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, 2017 New York University School of Law
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.