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Debarring Faithless Corporate And Religious Fiduciaries In Bankruptcy, Lyman P.Q. Johnson 2011 Washington and Lee University School of Law

Debarring Faithless Corporate And Religious Fiduciaries In Bankruptcy, Lyman P.Q. Johnson

Scholarly Articles

Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” …


The Pretend Solution: An Empirical Study Of Bankruptcy Outcomes, Katherine M. Porter 2011 University of California, Irvine School of Law

The Pretend Solution: An Empirical Study Of Bankruptcy Outcomes, Katherine M. Porter

Faculty Scholarship

When enacted in 1978, the Bankruptcy Code was heralded as a consumer protection victory. It gave families in financial trouble a complex array of legal options, including the ability to repay their debts over a number of years in chapter 13 bankruptcy. That new option was lauded by experts and became popular across the nation. Today over 1 million families are currently in chapter 13 bankruptcy; it remains the first line of defense for families facing foreclosure.

For more than thirty years, research has shown that two in three families drop out of chapter 13 before completing their repayment plans …


Mortgage Foreclosures, Mortgage Morality, And Main Street: What’S Really Happening?, Jennifer M. Smith 2011 Florida A & M University College of Law

Mortgage Foreclosures, Mortgage Morality, And Main Street: What’S Really Happening?, Jennifer M. Smith

Journal Publications

The American economy is in the tank. Millions of citizens are without jobs, overwhelmed with credit card debt, and losing their homes. The brighter side is that as a result, America has finally embraced financial reform, and the unstable economy is stabilizing marriages. Nevertheless, the United States remains in the midst of a housing crisis, and the ending remains uncertain.

There has been a media blitz about the housing crisis and Wall Street - corporate interests, but much less about the actual impact of the housing crisis on Main Street - America's working class people and small business owners. This …


The Story Of Kmart's Reorganization, John Fisher, Justin Wolbert 2011 University of Tennessee College of Law

The Story Of Kmart's Reorganization, John Fisher, Justin Wolbert

Chapter 11 Bankruptcy Case Studies

No abstract provided.


Drug Fair Group, Inc., Robby Lockett, Scott Lochridge, Jessica Manning 2011 University of Tennessee College of Law

Drug Fair Group, Inc., Robby Lockett, Scott Lochridge, Jessica Manning

Chapter 11 Bankruptcy Case Studies

No abstract provided.


Committee Capture? An Empirical Analysis Of The Role Of Creditors' Committees In Business Reorganizations, Michelle M. Harner, Jamie Marincic 2011 University of Maryland School of Law

Committee Capture? An Empirical Analysis Of The Role Of Creditors' Committees In Business Reorganizations, Michelle M. Harner, Jamie Marincic

Faculty Scholarship

The number of businesses experiencing financial distress increased significantly during the past several years. The number of Chapter 11 reorganization cases likewise rose. And many of these business failures were spectacular, leaving little value for creditors and even less for shareholders. Consequently, how the business debtor’s limited asset pie is divided and who gets to allocate the pieces are very relevant and important questions.

The U.S. Bankruptcy Code generally contemplates the appointment of a committee of the debtors’ unsecured creditors to serve as a fiduciary for all general unsecured creditors and as a statutory watchdog over the debtor and its …


Behind Closed Doors: The Influence Of Creditors In Business Reorganizations, Michelle M. Harner, Jamie Marincic 2011 University of Maryland School of Law

Behind Closed Doors: The Influence Of Creditors In Business Reorganizations, Michelle M. Harner, Jamie Marincic

Faculty Scholarship

General corporate law delegates the power to manage a corporation to the board of directors. The board in turn acts as a fiduciary and generally owes its duties to the corporation and its shareholders. Many courts and commentators summarize the board’s primary objective as maximizing shareholder wealth. Accordingly, one would expect a board’s conduct to be governed largely by the interests of the corporation and its shareholders. Yet, anecdotal and increasing empirical evidence suggest that large creditors wield significant influence over their corporate debtors. Although this influence is most apparent as the corporation approaches insolvency, the strength of the creditors’ …


Serving A Summons By First Class Mail: Why Bankruptcy Rule 7004(B)(1) Violates Due Process, Jonathon S. Byington 2011 Alexander Blewett III School of Law at the University of Montana

Serving A Summons By First Class Mail: Why Bankruptcy Rule 7004(B)(1) Violates Due Process, Jonathon S. Byington

Faculty Law Review Articles

This article argues that even though it has been accepted and widely used throughout the nation for thirty-five years by courts, practitioners, and commentators, the service method of delivering a summons and complaint solely by first class mail under Bankruptcy Rule 70004(b)(1) violates due process. Part I shows that the establishment of first class mail as an alternate service method occurred before the vast expansion of bankruptcy court jurisdiction. Part II evaluates the various reasons why Rule 7004(b)(1) violates due process. The article concludes in Part III by recommending a two-part solution to revise the rule.


Bankruptcy, Relocation, And The Debtor's Dilemma: Preserving Your Homestead Exemption Versus Accepting The New Job Out Of State, Timothy R. Tarvin 2011 University of Arkansas School of Law

Bankruptcy, Relocation, And The Debtor's Dilemma: Preserving Your Homestead Exemption Versus Accepting The New Job Out Of State, Timothy R. Tarvin

Loyola University Chicago Law Journal

Current unemployment levels have forced a significant portion of homeowners to contemplate bankruptcy. In an attempt to avoid the impending bankruptcy, those homeowners have sought new employment, even when that new employment would entail moving to a different state. Yet crossing state lines may be the worst strategy for a debtor considering bankruptcy. Most jurisdictions limit the homestead exemption in bankruptcy to residents; to exempt a home from creditor claims, a debtor must have lived in her current domicile for two years. Thus, the unemployed debtor who is trying to avoid bankruptcy by moving out of state to begin new …


Unveiling The Mystery, History, And Problems Associated With The Jurisdictional Limitations Of Bankruptcy Courts Over Personal Injury Tort And Wrongful Death Claims, Ishaq Kundawala 2011 Mercer University School of Law

Unveiling The Mystery, History, And Problems Associated With The Jurisdictional Limitations Of Bankruptcy Courts Over Personal Injury Tort And Wrongful Death Claims, Ishaq Kundawala

Articles

The current jurisdictional structure of bankruptcy courts in the United States is nothing short of a mystery. Scholars, judges, and practitioners have long struggled with finding their way through the confusing labyrinth of jurisdictional rules, exceptions, and exclusions in our current bankruptcy system. Courts spend countless hours each year considering all kinds of jurisdictional issues that arise in bankruptcy cases. This results in a diversion of judicial resources from substantive matters. Adding to this quandary is the limited scope of bankruptcy courts' jurisdiction over a small but very significant subset of claims-personal injury tort and wrongful death claims-which weaves yet …


The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford 2011 Penn State Law

The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford

Journal Articles

This article discusses minor changes to the U.S. Bankruptcy Code that would make avoiding foreclosure possible for a homeowner who (a) is presently not able to make the mortgage service payments but (b) could make payments for a mortgage that is reduced to the market value of the property and to a fixed market mortgage rate. This article does not address the political issue of what protections Congress might decide to provide mortgage owners and servicers as a part of such legislation.


Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon, Jesse W. W. Markham, Jr. 2011 Fordham Law School

Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon, Jesse W. W. Markham, Jr.

Fordham Journal of Corporate & Financial Law

This article examines whether, and the extent to which, antitrust law could contribute to a broader regulatory effort to control the too-big-to-fail problem. The article begins by exploring the nature of the problem. Against this backdrop, it considers antitrust policy and rules to evaluate whether antitrust might play a meaningful role. The article concludes that antitrust law, if vigorously enforced with an emphasis on avoiding too-big-to-fail problems, can be a useful public policy tool to address the problem. However, it can come nowhere near solving it or preventing recurrences of recent systemic failures.


Bankruptcy’S Protection For Non-Debtors From Securities Fraud Litigation, John M. M. Wunderlich 2011 Fordham Law School

Bankruptcy’S Protection For Non-Debtors From Securities Fraud Litigation, John M. M. Wunderlich

Fordham Journal of Corporate & Financial Law

Given the recent economic climate, the judiciary faces an all too familiar challenge: navigate through the web that is bankruptcy and securities fraud. So far, bankruptcy has evolved into a tool to resolve mass tort litigation, like securities fraud. However, this Article explores bankruptcy as a tool to resolve securities litigation against non-debtors, those that never file for bankruptcy protection. The protection the Bankruptcy Code provides to non-debtors, like officers and directors, goes largely unnoticed, much to the detriment of securities fraud victims. Mindful that we now are in the midst of another financial crisis and that attention will slowly …


At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra 2011 Allard School of Law at the University of British Columbia

At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra

All Faculty Publications

Access to consumer credit is influenced by many factors, such as amount and security of the consumer’s income, and credit card company and financial institution practices. Access is also driven by social, cultural and cognitive factors, including consumer understanding of the cost of credit; perceptions regarding ability to repay; cognitive influences regarding immediate consumption and delayed payment; understanding of the benefits and risks of debt to economic security; and the conflicts of interest inherent in the business of lending. Overall, bank and credit union credit has tightened since the global financial crisis. However, the study found that for many Canadians, …


Nondebtor Releases In Chapter 11 Reorganizations: A Limited Power, Elizabeth Gamble 2011 Fordham Law School

Nondebtor Releases In Chapter 11 Reorganizations: A Limited Power, Elizabeth Gamble

Fordham Urban Law Journal

This note concerns the ability of bankrupt companies to file Chapter 11 reorganization plans that contain provisions releasing the liabilities of parties other than the companies themselves. One such mechanism, used in conjunction with the 2010 BP oil spill in the Gulf of Mexico, is a trust releasing a financially-troubled company from liability to certain types of tort claimants. The author argues that although bankruptcy courts do have the power to approve such plans, such power should be carefully limited when companies seek to grant releases to insiders and insurance companies.


The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Melissa B. Jacoby 2011 Fordham Law School

The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Melissa B. Jacoby

Fordham Urban Law Journal

This article reviews the legal infrastructure of tools that protect debtors’ assets or income, or that enable debtors to resolve secured credit problems during ordinary times (e.g., not specific crisis interventions). Part I divides consumer protection tools into functional categories: protection of assets and future income, and retention of property subject to a security interest in default. Part II identifies the location of similar tools in federal law, uniform state law, and non-uniform state law. Part III examines implications of this divided system, with a special focus on the bundling of debtor protections and the role of intermediaries. This discussion …


Financial Stability Is A Volume Business: A Comment On 'The Legal Infrastructure Of Ex Post Consumer Debtor Protections', Anna Gelpern 2011 Fordham Law School

Financial Stability Is A Volume Business: A Comment On 'The Legal Infrastructure Of Ex Post Consumer Debtor Protections', Anna Gelpern

Fordham Urban Law Journal

In this response to Professor Melissa B. Jacoby's "The Legal Infrastructure of Ex Post Consumer Debtor Protections," the author expands the scope of the household debt discussion beyond the consumer level and examines the effect that a fragmented infrastructure for legal service delivery can have on financial stability nationwide.


Midnight In The Garden Of Good Faith: Using Clawback Actions To Harvest The Equitable Roots Of Bankrupt Ponzi Schemes, Jessica D. Gabel 2011 Georgia State University College of Law

Midnight In The Garden Of Good Faith: Using Clawback Actions To Harvest The Equitable Roots Of Bankrupt Ponzi Schemes, Jessica D. Gabel

Faculty Publications By Year

This paper addresses an increasingly relevant issue in bankruptcy – does it make sense to protect “good faith” investors who have invested (some quite profitably) in a Ponzi scheme from clawback actions by the trustee? This article presents issues of economic equity (equitable payouts to individual creditors vs. equitable distribution among all creditors); bankruptcy policy (retaining antiquated notions of good faith in an ever-evolving financial playground); and judicial inconsistency (disparities in the treatment on Ponzi investors). * In the aftermath of the financial crisis, investors have attempted to pull their money back from the markets, collapsing hundreds of Ponzi schemes …


The "Current Monthly Income" Debate: Unemployment Compensation As A "Benefit Received Under The Social Security Act"?, 44 J. Marshall L. Rev. 801 (2011), Brent Wilson 2011 UIC School of Law

The "Current Monthly Income" Debate: Unemployment Compensation As A "Benefit Received Under The Social Security Act"?, 44 J. Marshall L. Rev. 801 (2011), Brent Wilson

UIC Law Review

No abstract provided.


A Minimalist Approach To State ‘Bankruptcy’, Steven L. Schwarcz 2011 Duke Law School

A Minimalist Approach To State ‘Bankruptcy’, Steven L. Schwarcz

Faculty Scholarship

Increasingly finding themselves in financial straitjackets, states have been turning to austerity measures, tax increases, privatization of services, and renegotiation of collective bargaining agreements. Absent a federal government bailout, however, states will also need debt relief if their debt burden becomes so crushing that reasonable efforts at fiscal reform will fail to avoid default. Some advocate providing this relief by, effectively, extending municipal bankruptcy law to states. That approach brings in excess baggage, however, engendering political opposition and constitutional concerns. There is a simpler solution: Enable states to work out their debt problems with their creditors. Although the main obstacle …


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