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Golden Creditors, Copper Rules: An Analysis Of Avoidance Actions Under Section 544(B) Of The Bankruptcy Code In Cases Where A Federal Creditor Holds A Claim, John F. Rabe Jr. 2017 Brooklyn Law School

Golden Creditors, Copper Rules: An Analysis Of Avoidance Actions Under Section 544(B) Of The Bankruptcy Code In Cases Where A Federal Creditor Holds A Claim, John F. Rabe Jr.

Brooklyn Law Review

Section 544(b) of the Bankruptcy Code endows the trustee with the power to avoid fraudulent transfers that an unsecured creditor could have avoided under applicable law. Most states have adopted versions of the Uniform Fraudulent Conveyances Act (UFCA) or Uniform Fraudulent Transfers Act (UFTA) that impose four- or six-year statutes of limitations on private creditors seeking to unwind fraudulent transfers. Certain government creditors, however, have access to longer statutes of limitation than those available to their private counterparts. Federal creditors acting pursuant to the Federal Debt Collection Procedures Act (FDCPA) or Internal Revenue Code (IRC), for example, can avail ...


Attorneys' Fees And Chapter Choice: Exploring "No Money Down" Chapter 13 Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter 2017 Indiana University Maurer School of Law

Attorneys' Fees And Chapter Choice: Exploring "No Money Down" Chapter 13 Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter

Articles by Maurer Faculty

In a forthcoming article in the Southern California Law Review, the authors use new data from the ongoing Consumer Bankruptcy Project (CBP) to explore the "no money down" bankruptcy. This article summarizes that article and discusses the law that influenced the creation of "no money down" chapter 13s, which households are more likely to file with "no money down," and why this type of chapter 13 case might be less than optimal for the consumer bankruptcy system. Both studies draw data from a debtor's bankruptcy court records and written questionnaires mailed to the debtors to collect demographic information and ...


Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey 2017 Indiana University Maurer School of Law

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black Churches filing ...


"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne 2017 Indiana University Maurer School of Law

"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer the law ...


Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter 2017 Duke Law School

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of ...


Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen 2017 Duke Law School

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen

Faculty Scholarship

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring ...


Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz 2017 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 ...


Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra 2017 Allard School of Law at the University of British Columbia

Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra

Faculty Publications

The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue ...


The Pasts Fickle Shadow A California Divide Over The Business Records Exception.Pdf, Amir Shachmurove 2016 United States District Court, Middle District of Louisiana

The Pasts Fickle Shadow A California Divide Over The Business Records Exception.Pdf, Amir Shachmurove

Amir Shachmurove

In 2015, the interpretive tranquility that had come to typify the jurisprudence surrounding one of the most well-rooted hearsay exceptions—the business records one (“BRE”)—was suddenly ruptured. In that year, in Sierra Managed Asset Plan, LLC v. Hale (“Hale”) and Unifund CCR LLC v. Dear (“Unifund”), two appellate divisions of the Superior Court of California issued conflicting opinions as to whether a debt assignee may demonstrate the BRE’s elements under California Evidence Code § 1271, thereby conclusively proving its prima facie case, with no more than a declaration of the assignee’s custodian of records. Hale, soon followed by ...


Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings 2016 Nevada Law Journal

Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings

Nevada Supreme Court Summaries

The Court, sitting en banc, reviewed a certified question from the United States Bankruptcy Court, determining that under NRS 21.010(1)(u) a debtor is entitled to a personal injury exemption of $16,150 for each personal injury claim.


Robbing Your Rival's Piggybank: The Third Circuit Affirms Bad Faith Dismissals In Involuntary Bankruptcies After In Re Forever Green Athletic Fields, Inc., Nathan L. Rudy 2016 Villanova University Charles Widger School of Law

Robbing Your Rival's Piggybank: The Third Circuit Affirms Bad Faith Dismissals In Involuntary Bankruptcies After In Re Forever Green Athletic Fields, Inc., Nathan L. Rudy

Villanova Law Review

No abstract provided.


Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson 2016 Brooklyn Law School

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating ...


Bankruptcy: Where Attorneys Can Lose Big Even If They Win Big, Stanislav Veyber 2016 Brooklyn Law School

Bankruptcy: Where Attorneys Can Lose Big Even If They Win Big, Stanislav Veyber

Brooklyn Journal of Corporate, Financial & Commercial Law

Historically, bankruptcy attorneys received the short end of the stick and were paid less for their services than attorneys in other fields of law. With the Bankruptcy Reform Act of 1978, Congress attempted to reduce the discrepancy in compensation. However, after the Supreme Court’s decision in Baker Botts v. ASARCO; L.L.C., the playing field remains unequal for bankruptcy attorneys. Following this decision, if a debtor disputes their attorney’s fee application, attorneys are at a disadvantage and cannot recover fees for defending their fee application. As a result, bankruptcy attorneys take an effective pay cut if they ...


Excessive State Debt: A New Approach To A Growing Problem, Vincent Buccola 2016 University of Pennsylvania

Excessive State Debt: A New Approach To A Growing Problem, Vincent Buccola

Penn Wharton Public Policy Initiative

Economists and political observers agree state governments defaulting on their debt obligations is a growing concern. How best to aid struggling states, however, is a point of contention. This Issue Brief makes a case against ex post restructuring measures, specifically bankruptcy modeled on Chapter 9 of the U.S. Bankruptcy Code, and in favor of ex ante debt mitigation action. In particular, it introduces tax-credit borrowing (TCB) as a potential commitment device for states that would allow for the creation of super-priority, risk-free debt. TCB ensures that states internalize the risk of default and avoids the moral hazard problem of ...


Student Loans And Surmountable Access-To-Justice Barriers, Jason Iuliano 2016 University of Florida Levin College of Law

Student Loans And Surmountable Access-To-Justice Barriers, Jason Iuliano

Florida Law Review

Findings and conclusions from the 2012 American Bankruptcy Law Journal Study and Response to Professor Rafael I. Pardo’s latest piece, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy.


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. 2016 University of California - Berkeley

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

Kenneth Ayotte

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party 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 parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise not to ...


Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell 2016 University of Georgia School of Law

Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell

Journal of Intellectual Property Law

No abstract provided.


Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye 2016 University of Kentucky College of Law

Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye

Law Faculty Scholarly Articles

In 2013, the City of Detroit filed the largest municipal bankruptcy action in United States history, affecting about $20 billion in municipal debt. Unusually, Detroit owned its municipal art museum, the Detroit Institute of Arts (“DIA”) and all of the works of art in the DIA collection, which were potentially worth billions of dollars. Detroit’s creditors wanted Detroit to sell the DIA art in order to satisfy its debts. Key to the confirmation of Detroit’s plan of adjustment was the DIA settlement, under which Detroit agreed to sell the DIA art to the DIA corporation in exchange for ...


La Preuve Dans Le Droit Ohada Des Entreprises En Difficultés, Julien Coomlan Hounkpe 2016 University of Abomey Calavi, Benin

La Preuve Dans Le Droit Ohada Des Entreprises En Difficultés, Julien Coomlan Hounkpe

Julien Coomlan Hounkpe

Un nouvel Acte uniforme portant procédures collectives d'apurement du passif est entré en vigueur le 24 décembre 2015 dans l’espace OHADA. La liberté de preuve qui a valeur principielle en droit commercial, connait des aménagements dans le nouveau droit des entreprises en difficulté.       


Sovereign Debt: Now What?, Anna Gelpern 2016 Georgetown University Law Center

Sovereign Debt: Now What?, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in ...


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