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2280 full-text articles. Page 5 of 47.

Randomly Distributed Trial Court Justice: A Case Study And Siren From The Consumer Bankruptcy World, Gary G. Neustadter 2016 Santa Clara Unviersity School of Law

Randomly Distributed Trial Court Justice: A Case Study And Siren From The Consumer Bankruptcy World, Gary G. Neustadter

Faculty Publications

Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage's acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or ...


Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier 2016 Pepperdine University

Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier

Pepperdine Law Review

When bankruptcy courts attempt to define the business trust, the “decisions are sharply, and perhaps hopelessly, divided.” The Bankruptcy Code, which guides the determinations of bankruptcy courts, specifically lists business trusts as eligible for protection. However, the Code does not define what a business trust is and does not list any criteria for determining when a trust is a business trust. The lack of a concrete definition has led many courts to formulate their own definitions of business trusts. While the courts hoped that they would eventually settle on a uniform test to tackle this issue, it has yet to ...


What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow 2016 University of Michigan Law School

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to remedy ...


Pari Passu As A Weapon And The Changes To Sovereign Debt Boilerplate After Argentina V. Nml, David Newfield 2016 University of Miami Law School

Pari Passu As A Weapon And The Changes To Sovereign Debt Boilerplate After Argentina V. Nml, David Newfield

University of Miami Business Law Review

The pari passu clause is found in nearly every sovereign debt contract issued throughout the globe. In the private context, this clause is well understood to ensure fair distributions to all creditors in the event of bankruptcy and liquidation. As insolvency distributions are not an option when dealing with distressed sovereign debt, the rights and duties associated with this clause have been subject to extensive litigation for over 20 years.

Starting from the case of Elliot v. Peru, in the early 1990s, and more recently in Argentina v. NML, courts have interpreting these bonds, governed subject to New York law ...


Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet 2016 Southern University Law Center

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

University of Cincinnati Law Review

No abstract provided.


Overcoming Hurdles In The Enforceability Of Make-Whole Provisions, Brian Patrick McBride 2016 University of Miami Law School

Overcoming Hurdles In The Enforceability Of Make-Whole Provisions, Brian Patrick Mcbride

University of Miami Law Review

There have been recent conflicting decisions in U.S. district courts of New York, Delaware, and others states regarding to the enforceability of make-whole provisions in bankruptcy. The ambiguity created by the courts’ decisions has caused uncertainty for all parties involved in these kinds of loan documents. This comment is an analysis of the enforceability of make-whole provisions in the context of bankruptcy in light of the recent decisions. In order for a makewhole or a no-call provision to be upheld, a number of hurdles must be cleared. The provisions must be valid under both state law and bankruptcy law ...


No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green 2016 Fordham University School of Law

No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green

Fordham Law Review

Imagine buying a game from a seller and promising to repay him at a later date. However, instead of repayment, you decide to give the game to your friend, who in turn allows you to use it. Then your friend declares bankruptcy to discharge the price of the game from his debts, thus allowing you both to use it without paying. This repayment runaround is the issue that the First and Fifth Circuits were asked to decide in two recent cases. Specifically, the question was whether a debt incurred by “actual fraud” may be discharged by the recipient of the ...


Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith 2016 Fordham University School of Law

Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith

Fordham Law Review

In a structured dismissal of a Chapter 11 bankruptcy case, a bankruptcy court approves case dismissal alongside a stakeholder agreement as to the manner in which the estate is to be dealt with once the case has been dismissed. Such orders are controversial in that they are not explicitly authorized through the U.S. Bankruptcy Code (“the Code”) and are especially controversial where the accompanying agreement seeks to distribute estate property in contravention of the priority scheme laid out in § 507 of the Code. Where the agreement violates this so-called waterfall payment method, bankruptcy courts are faced with difficult questions ...


Courts And Sovereigns In The Pari Passu Goldmines, Anna Gelpern 2016 Georgetown University Law Center

Courts And Sovereigns In The Pari Passu Goldmines, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly concluding that pari passu promised ratable payment to all holders of Peru’s external debt ...


"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei 2016 St. John's University School of Law

"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei

St. John's Law Review

No abstract provided.


Finding Common Ground: Resolving Assumption And Assignment Of Intellectual Property Licenses In Chapter 11 Bankruptcy Through Adoption Of The Actual Test, Courtney Marie Davis 2016 University of Georgia School of Law

Finding Common Ground: Resolving Assumption And Assignment Of Intellectual Property Licenses In Chapter 11 Bankruptcy Through Adoption Of The Actual Test, Courtney Marie Davis

Journal of Intellectual Property Law

No abstract provided.


The Theory Of Municipal Custom And Practice, Karen Blum 2016 Touro College Jacob D. Fuchsberg Law Center

The Theory Of Municipal Custom And Practice, Karen Blum

Touro Law Review

No abstract provided.


Eleventh Amendment Federalism And State Sovereign Immunity Cases: Direct Effect On Section 1983?, Stephen H. Steinglass 2016 Touro College Jacob D. Fuchsberg Law Center

Eleventh Amendment Federalism And State Sovereign Immunity Cases: Direct Effect On Section 1983?, Stephen H. Steinglass

Touro Law Review

No abstract provided.


Feasibility In Chapter X Reorganizations, David R. King 2016 Selected Works

Feasibility In Chapter X Reorganizations, David R. King

David King

No abstract provided.


After Debt: A Path Forward For Puerto Rico, David A. Skeel 2016 University of Pennsylvania Law School

After Debt: A Path Forward For Puerto Rico, David A. Skeel

Penn Wharton Public Policy Initiative

This Issue Brief summarizes events surrounding the current debt crisis in Puerto Rico and presents a two-step plan for restructuring Puerto Rico’s debt and encouraging more effective governance. This plan draws extensively on the previous experiences of debt crises in municipalities on the U.S. mainland. Step one entails the creation of a financial control board (FCB) for Puerto Rico, monitored by the U.S. federal government but involving significant Puerto Rican representation. Step two would be for Congress either to craft a restructuring framework applicable to all of America’s territories, or to extend the existing bankruptcy laws ...


Ethics For Examiners, Daniel J. Bussel 2016 UCLA School of Law

Ethics For Examiners, Daniel J. Bussel

Fordham Law Review

The inquisitorial bankruptcy examiner is sui generis in our system. He faces unique ethical quandaries and considerations, which require a code of ethics tailored to his role if he is to achieve fully the promise of improving Chapter 11 through the introduction of inquisitorial investigative methods. This Article attempts to point the way toward guidelines that will regulate the conduct of examiners to mitigate real, potential, and perceived abuses.


Micro, Small And Medium Enterprise (Msme) Insolvency In Canada, Janis P. Sarra 2016 Allard School of Law at the University of British Columbia

Micro, Small And Medium Enterprise (Msme) Insolvency In Canada, Janis P. Sarra

Faculty Publications

Insolvency law is broadly recognized as an essential tool in well-functioning economies. A balance of mechanisms that allow for timely and effective liquidation, but also for a “fresh start” for individual entrepreneurs and the rehabilitation of viable businesses, tends to enhance creditor recoveries and lender confidence. This study examines the treatment of micro, small and medium enterprises (“MSME”) under the Canada Bankruptcy and Insolvency Act. It undertakes a qualitative examination of 200 business insolvencies in 2015, in order to try to understand the reasons for insolvency, types of debt, and outcomes of proceedings. The study reports on the results of ...


A Petrobras NãO Conseguirá Renegociar A Sua DíVida, Bruno Meyerhof Salama 2016 FGV Law School in Sao Paulo

A Petrobras NãO Conseguirá Renegociar A Sua DíVida, Bruno Meyerhof Salama

Bruno Meyerhof Salama

A Petrobrás dificilmente conseguirá renegociar sua dívida com os bancos. E boa parte do problema pode ser atribuído a um fato que costuma passar despercebido: não existe regime de insolvência aplicável às estatais.


Making Assignments For The Benefit Of Creditors As Easy As A-B-C, Carly Landon 2016 Fordham University School of Law

Making Assignments For The Benefit Of Creditors As Easy As A-B-C, Carly Landon

Fordham Urban Law Journal

No abstract provided.


An Analysis Of The Treatment Of Employees Pension And Wage Claims In Insolvency And Under Guarantee Schemes In Oecd Countries: Comparative Law Lessons For Detroit And The United States, Paul M. Secunda 2016 Marquette University Law School

An Analysis Of The Treatment Of Employees Pension And Wage Claims In Insolvency And Under Guarantee Schemes In Oecd Countries: Comparative Law Lessons For Detroit And The United States, Paul M. Secunda

Fordham Urban Law Journal

No abstract provided.


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