Digital Commons Network^™

The Barton Doctrine's Applicability To Suits Against Bankruptcy Trustees When The Bankruptcy Court Lacks Jurisdiction Over The Matter, Chelsea Frankel

Bankruptcy Research Library

(Excerpt)

In Barton v. Barbour, the Supreme Court established the general rule that a lawsuit cannot be brought against a receiver for acts done within their authority without leave of the court that appointed such receiver. The Court precluded a personal injury suit against a company's receiver without leave of the appointing court, finding that if the plaintiff were permitted to recover on his personal injury claim against the receiver, he would be recovering from the receivership property "without regard to the rights of other creditors or the orders of the court which is administering the trust property." The …

Ownership Status Of Inherited Retirement Accounts In Bankruptcy, Aron Kaplan

Bankruptcy Research Library

(Excerpt)

Immediately upon filing a petition for relief under title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy estate is created by operation of law that consists of the debtor’s assets from which the creditors will be repaid. The Bankruptcy Code states that the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” This broad language reflects Congress’s intent that there be sufficient assets in the estate to protect the interests of creditors.

Despite this broad legislative language, there are certain categories of property that the debtor …

Fdcpa Claims: Are Intangible Injuries “Concrete” Injuries?, Kimberly Moyal

Bankruptcy Research Library

(Excerpt)

The Fair Debt Collection Practices Act (“FDCPA”) was passed to prohibit a debt collector from engaging in abusive debt collection practices. The FDCPA serves to protect a consumer by giving a consumer a statutory claim against an abusive debt collector. In 2016, the U.S. Supreme Court, in Spokeo, Inc. v. Robins, ruled that a party pursuing a statutory claim, like an FDCPA claim, must meet the Article III standing requirements of the U.S. Constitution. To establish the first element of the Article III standing analysis, the plaintiff must prove that they suffered a “concrete and particularized” injury.

After …

A Hotel Does Not Meet The Definition Of "Single Asset Real Estate" And May Reorganize Under Subchapter V Of Chapter 11 Of The Bankruptcy Code, Patrick Canavan

Bankruptcy Research Library

(Excerpt)

Enacted via the Small Business Reorganization Act ("SBRA") in 2019, Subchapter V streamlines the reorganization process, allowing small business debtors to file bankruptcy in a timely and cost-effective manner. The goal behind the legislation is to encourage reorganizations, which will generally result in creditors receiving a higher distribution than in a liquidation and more small businesses surviving. Section 1182(1) of title 11 of the United States Code (the "Bankruptcy Code") limits those who can file a Subchapter V case to a "small business debtor" who does not own a "single asset real estate" project ("SARE"). Thus, if the debtor …

The Effect Of Insider Status On The Court's Approval Of A Key Employee Retention Plan, Perry Chresomales

Bankruptcy Research Library

(Excerpt)

When a company that has filed for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") seeks to retain essential employees through the course of its bankruptcy, the payments made with the goal of retaining key employees are subject to the requirements of section 503(c) of the Bankruptcy Code. These payment plans, also known as Key Employee Retention Plans or "KERPs", are designed to "provide certain Key Employees with a financial incentive to forgo seeking alternative employment during the Debtors' bankruptcy proceeding as well as after confirmation of a chapter 11 plan." In …

Courts Apply A Case-By-Case Analysis In Distinguishing A Meritorious Motion To Disqualify From A Delaying Litigation Tactic, Cathrena Collins

Bankruptcy Research Library

(Excerpt)

It is becoming increasingly rare for an attorney to remain at the same firm for an entire career. Lateral movements of lawyers coupled with large firms employing hundreds of attorneys creates ample opportunity for conflicts of interest to arise. The American Bar Association explains a conflict of interest is present when "there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the other lawyer's responsibilities or interest." Furthermore, Rule 1.10(b) dictates that a lawyer joining a new firm …

The Various Methods Circuit Courts Use To Define "Initial Transferee" In Fraudulent Transfers, Anthony J. Crasto

Bankruptcy Research Library

(Excerpt)

Transfers of a debtor's interest or obligation in property to a third party, made to prevent creditors from reaching assets in a bankruptcy case, are known as fraudulent transfers. Under current law, there are two types of fraudulent transfers: actual fraud and constructive fraud. Actual fraud requires findings of a debtor's "intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted." Constructive fraud does not require a finding of intent and occurs when a debtor receives "less than …

Erisa Withdrawal Liability Claims Unlikely To Receive Administrative Expense Priority Status In A Chapter 11 Reorganization, Bridget Golden

Bankruptcy Research Library

(Excerpt)

An employer who withdraws their participation in a multi-employer defined benefits plan is statutorily required to pay the plan a withdrawal liability. Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), provides a number of formulas to assist a multi-employer defined benefits plan's actuary with calculating the withdrawal liability amount. Congress imposed withdrawal liability on withdrawing employers "(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) ... to ensure benefit security to plan participants." An employer's ability-and willingness-to pay withdrawal liability …

Enforceability Of Third-Party Releases In Foreign Proceedings Under Chapter 15, Anastasia Greer

Bankruptcy Research Library

(Excerpt)

In our increasingly globalized world, cross-border insolvency proceedings brought under chapter 15 (herein "Chapter 15") of title 11 of the United States Code (the "Bankruptcy Code") are on the rise - with over 100 additional filings in 2020 alone. Third-party releases are provisions in bankruptcy plans intended to release non-debtors (including shareholders, directors, officers, and affiliates) from claims creditors hold against other members of their class. A third­ party release can "act as a complete release, waiver, and discharge of that party ... arising out of or in connection with the debtor and its plan of reorganization." While the …

Servicer's Duty To Respond Upon Receipt Of Borrower's Notice Of Error Concerning Its Management Of A Loan, Ilayna Guevrekian

Bankruptcy Research Library

(Excerpt)

The Consumer Financial Protection Bureau ("CFPB") makes sure that borrowers "are treated fairly by banks, lenders, and other financial institutions." The Department of Housing and Urban Development implemented Regulation X in 1975, which incorporated the Real Estate Settlement Procedures Act ("RESPA") and designated the CFPB with rule-making authority to ensure compliance under this Act. This congressional response "to [the] perceived abuses in real estate settlement process" attempted to "protect consumers from unnecessarily high settlement charges resulting from those abuses."

A qualified written request ("QWR") is written correspondence from the borrower to servicer, including the identity, name, and account of …

A Debtor's Eligibility For Relief Under Subchapter V Of Chapter 11, Nicholas Hasbún

Bankruptcy Research Library

(Excerpt)

In February of 2020, the Small Business Reorganization Act of 2019 ("SBRA") became effective and added a new subchapter ("Subchapter V") to title 11 of the United States Code (the "Bankruptcy Code"). Subchapter V, which is incorporated into chapter 11 of the Bankruptcy Code, was established to create an efficient process for small business debtors to "reorganize quickly, inexpensively, and efficiently." To proceed under Subchapter V, a debtor must meet the definition of a debtor under section 1182(1) of the Bankruptcy Code and must elect its application pursuant to section 103(i) of the Bankruptcy Code. Under Subchapter V, an …

The Approval Of Retirement Contributions In Chapter 13 Payment Plans, Jennifer Hepner

Bankruptcy Research Library

(Excerpt)

In the United States, employees often contribute a portion of their annual income to their 401(k) retirement plans. These contributions may fluctuate based on age, income, or additional contributions by employers. At the same time, chapter 13 debtors are often required to pay at least a portion of what is owed to creditors as part of their court-approved payment plans. A court will only approve a debtor's chapter 13 payment plan if a debtor contributes all of his "projected disposable income" to pay creditors over the "applicable commitment period." While disposable income is defined as the "current monthly income …

Assessing The Two Tests Courts Use To Determine Dischargeability Of Student Loan Debt, Sean B. King

Bankruptcy Research Library

(Excerpt)

The purpose of bankruptcy is to give honest debtors a “fresh start.” For debtors with student loans this purpose is not automatic, rather, the viability of the student loan programs takes precedence. For student loans, the default rule is they are not dischargeable in bankruptcy. Title 11 of the United States Code (the “Bankruptcy Code”) spells this out. Under section 523(a)(8) of the Bankruptcy Code, student loans must create an “undue hardship” to be discharged.

The issue is how courts determine undue hardship under section 523(a)(8). The term “undue hardship” is not defined in the Bankruptcy Code, rather, it …

The Split In The Application Of Section 109(A) Requirements To Chapter 15 Cases, Kate Long

Bankruptcy Research Library

(Excerpt)

Chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”) governs recognition of foreign bankruptcy, insolvency, and debt-restructuring proceedings. Section 1517 of the Bankruptcy Code generally sets forth the requirements for recognition. In addition to those requirements, some courts have held that a foreign debtor must satisfy traditional debtor eligibility requirements for a debtor’s foreign proceeding to be recognized under Chapter 15. Other courts disagree and hold that a foreign debtor does not need to meet the traditional requirements for its foreign proceeding to be recognized under Chapter 15.

This memorandum explores the applicability of the …

Age As A Factor In Determining Discharge Of A Debtor’S Student Loan Debt, Julia Merani

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides for debtors a “fresh start” by allowing the discharge of most debt. To obtain a discharge of student loan debt, a debtor must demonstrate “undue hardship.” If the debt is not discharged, it must still be paid. The phrase “undue hardship” is not defined in the “Bankruptcy Code and congressional record provides little guidance as to what constitutes undue hardship . . . .” Even though Congress created a single standard for discharging student loan debt; the circuit courts have adopted different tests to determine if the undue …

Quitclaim Deeds, Divorce Decrees: Homestead Exemptions For Transferred Marital Property Across “Tenancy By The Entirety” And “Community Property” Jurisdictions, Elijah Newcomb

Bankruptcy Research Library

(Excerpt)

The quit claim deed is an instrument that transfers a property interest from a grantor to a grantee, without making any other representations. Quit claim deeds are common among spouses and divorcing couples as concerns regarding title defects are mitigated. These transfers have resulted in bankruptcy cases where a recipient-spouse receives a property interest encumbered by a lien, and tries to evade liability. A debtor can attempt to avoid a lien through an exemption. Exemptions are statutory provisions which can protect qualified property in a bankruptcy action. Section 522 of Title 11 of the United States Code (the “Bankruptcy …

Are Nonconsensual Third-Party Releases Acceptable In United States Courts, Megan O’Connor

Bankruptcy Research Library

(Excerpt)

Under Title 11 of the United States Code (the “Bankruptcy Code”), a debtor will generally be released or discharged from certain liabilities. In addition, a plan confirmed under Chapter 11 of the Bankruptcy Code may provide for a “third-party release,” pursuant to which a non-debtor, like a senior officer or shareholder, may be released from certain liabilities by creditors. There is currently a split between United States Courts of Appeals regarding the scope of who can be bound by a release by creditors: some courts permit such a release in the plan where each creditor has affirmatively consented to …

A Non-Party’S Ability To Assert A Cure Claim Under 365(B)(1)(A) In New York, Brendan Shaw

Bankruptcy Research Library

(Excerpt)

Under section 365 of title 11 of the United States Code (the “Bankruptcy Code”), “[a] trustee [or debtor], subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.” Before assumption, a debtor must promptly cure or provide adequate assurance that it will promptly cure any defaults that existed at the time of assumption. Under New York law, an intended third-party beneficiary of a contract can enforce the terms of that contract.

This Article discusses how the Southern District of New York dealt with the issue of whether an intended third-party beneficiary …

The Prospect Of A Debtor’S Future Employment Is A Factor Courts Consider When Discharging Student Loan Debt, Joe Pizzingrillo

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a debtor’s student loan debt is not dischargeable unless “excepting such debt from discharge . . . would impose an undue hardship on the debtor.” A majority of courts apply a three-prong test, known as the Brunner test, to determine if student loan debt may be discharged. Under this analysis, courts will generally consider a debtor’s prospects for future employment in deciding whether a student loan debt should be discharged. In connection therewith, courts will often take into account a debtor’s educational background and possession of a professional …

Subsequent Transferee’S Good Faith For Value Defense: The Second And Ninth Circuit’S Perspective, Alexa Schimp

Bankruptcy Research Library

(Excerpt)

Under section 548(a)(1) of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may “avoid any transfer . . . incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition” if there is either an “actual intent” fraudulent transfer or a “constructive” fraudulent transfer. The trustee, however, may not recover if a subsequent transferee can satisfy the good faith for value defense and demonstrate that it “t[ook] for value . . . in good faith, and without knowledge of the voidability of the …

The Role A Debtor’S Age Plays When Determining Whether To Discharge Student Loan Debt, Joseph Wales

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) generally provides for a broad discharge of pre-petition debts, resulting in a “fresh start” for debtors post-bankruptcy. However, section 523 of the Bankruptcy Code provides that a debtor may not be discharged from student loans unless there is a showing of “undue hardship.”

“Undue hardship” is a term of art largely dependent on the circumstances of the debtor. One common circumstance is the age of the debtor. The effect of a debtor’s age on their ability to pay can vary, so the role age plays in undue hardship analyses …

Chesnutt Library Annual Report 2021-2022, Lawrence Treadwell Iv

Annual Reports

No abstract provided.

A Transformative Framework To Investigate The Influences Of Chineseness On Chinese International Students’ Learning Experiences On U.S. College Campuses, Wenjin Guo

Dissertations

This study applied a mixed-methods, social-justice approach to explore how Chinese international students interpret their success and/or challenges influenced by their Chinese forms of community cultural wealth in their academic learning at a predominately White Catholic university in the Midwest of the United States for over one year. I adopted a transformative paradigm to guide my study. Since the reviewed theoretical frameworks solely failed to form a profound comprehension of how Chineseness influenced Chinese international college students, I analyzed essential components of socio-cultural and critical race theories and created China as Method as the framework to guide my study.

This …

The Emotional Side Of Dynamic Assessment: L2 Writing From Vygotsky's Perezhivanie Lens, Ali Kushki

Dissertations

This qualitative multiple-case study investigated the emotional perceptions of English-as-a-foreign language learners (EFLs) and an English writing instructor as they met online via the Zoom application. Dynamic Assessment (DA) and the Vygotskyan perezhivanie notion guided the study. DA is an interactive assessment approach that combines instruction and assessment processes during student-instructor interactions with the goal of diagnosing and developing learners’ abilities. As to the perezhivanie notion, Vygotsky (1994) argued for uncovering the particular prism through which the individual refracts (i.e., shapes) the influence of the environment, and how she “becomes aware of, interprets, and emotionally relates to a certain event” …

Understanding The Process Of Health Goal Achievement Among Black Men Who Have Sex With Men (Msm) In Chicago: An Exploratory Qualitative Study, Anthony Johnson

Dissertations

Background: Over the last 30 years, Black men who have sex with men (MSM) have been disproportionately affected by HIV/AIDS while accounting for only approximately 1% of the population of the United States. The majority of research with Black MSM has focused on HIV infection risk factors, but very little attention has been given to their overall health and well-being. The breadth of HIV-health related research that includes Black MSM tends to demonstrate high levels of racial, environmental, and economic disparities that need to be addressed. However, more research must be conducted to explicate the process of exercising strength and …

The Impact Of Democratically Elected Islamist Governments On The Implementation Of Foreign Policy: Cases Of Egypt, Morocco, And Tunisia, Taghreed Alsabeh

Dissertations

This dissertation aims to examine the foreign policy of elected Islamist parties in Egypt, Morocco, and Tunisia while in power and compare their foreign policy with non-Islamist parties from their respective countries. It seeks to answer the following questions: What is the role of democratically elected Islamist parties on the implementation of foreign policy? Does the foreign policy of Islamist parties differ from that of non-Islamist parties? Do Islamist parties apply their Islamist ideology to foreign policy? Finally, do Islamist parties in Egypt, Morocco, and Tunisia share similar foreign policy approaches? The study concludes that the difference in foreign policy …

Differences In Health Literacy And Healthcare Utilization For Uninsured Patients With Type Ii Diabetes, Whitney Key Towey

Dissertations

Un- and under-insured individuals have lower access and less health literacy than their insured counterparts. This is a major public health problem as lower health literacy leads to unhealthy communities which have higher chronic disease rates. This quantitative dissertation uses data from a public health hospital system to understand the relationship between health literacy and healthcare utilization. The Andersen Model has been applied to determine whether, or to what extent, health literacy explains the relationship between the identified predisposing and enabling factors and the outcomes of appropriate utilization of care by controlling for variables associated with health literacy. A sample …

Soul As Paraphrase: The Formalism And Minority Of Prayer, Kimberly Matheson

Dissertations

Philosophical and theological treatments of Christian prayer regularly overlook its formal stakes. As a type of limit-speech, prayer can be thought alongside the class of logical dilemmas generated whenever an element of a total set refers to the very totality of which it is a part. These dilemmas are grouped together in what Graham Priest calls the “inclosure schema” and, moreover, exhibit a non-self-identical structure that is also the hallmark of robust metaphysical materialisms (i.e., the structure by which matter constitutively fails to coincide with itself). This dissertation sketches an immanent materialist account of Christian prayer by bringing these two …

Things Of Beauty: Aesthetics For Environmental Education, Annie Schultz

Dissertations

As environmental crisis looms large, most agree that human reeducation is necessary in order to improve our relationship to the natural environment. Yet, there is currently no comprehensive interdisciplinary philosophy of education for environmental awareness. While there is writing in the field of philosophy of education on ecologizing education and literature which draws connections between aesthetic education and the appreciation of nature, there is little literature on the explicit ways in which aesthetic and art education can inform environmental justice initiatives. This dissertation examines aesthetic and art education’s relationship to the environment and how aesthetics can inform a moral relationship …

Defending Gender: Transprejudice As Gender System Maintenance, Linas Mitchell

Dissertations

The high levels of interpersonal and policy-based discrimination that transgender people face can be understood as a way of responding to transgender threats to gender systems. By understanding gender as a system of meaning and power, I apply System Justification Theory to interpret transprejudice as a form of gender system maintenance that may be influenced by one’s position in the gender system (gender) and general support for the status quo (conservatism). The present studies test whether transprejudice functions as a form of system affirmation/threat rejection. I found that exposure to system threat did not lead to greater transprejudice than a …