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Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk 2018 University of Maine School of Law

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 2018 University of Nevada, Las Vegas -- William S. Boyd School of Law

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 2018 Arizona State University Sandra Day O'Connor College of Law

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 2018 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 ...


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

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 ...


Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby 2018 Brooklyn Law School

Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby

Faculty Scholarship

No abstract provided.


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The Fresh Start Canon, Jonathon S. Byington 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, Micah A. Smart 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, Marcel Kahan 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 ...


A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra 2018 Allard School of Law at the University of British Columbia

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 Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson 2018 Benjamin N. Cardozo School of Law

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 2018 Texas State University

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 ...


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


Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo 2018 Western New England University School of Law

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 ...


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. 2018 U.S. Bankruptcy Court, Western District of Texas

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.


Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz 2018 Duke Law School

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 ...


Catholic Dioceses In Bankruptcy, Marie T. Reilly 2018 Penn State Law

Catholic Dioceses In Bankruptcy, Marie T. Reilly

Catholic Dioceses in Bankruptcy

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based ...


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. 2018 University of Pennsylvania Law School

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

Faculty Scholarship at Penn Law

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 ...


Access To Consumer Bankruptcy, Pamela Foohey 2018 Indiana University Maurer School of Law

Access To Consumer Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias ...


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