Law Commons^™

Immovable-Associated Equipment Under The Draft Mac Protocol: A Sui Generis Challenge For The Cape Town Convention, Benjamin Von Bodungen, Charles W. Mooney Jr.

All Faculty Scholarship

UNIDROIT is in the process of adopting a fourth Protocol under the umbrella of the Cape Town Convention, the MAC Protocol, which will cover mining, agricultural and construction equipment. This article addresses a challenge faced by the MAC Protocol that was not encountered in the development of the previous Protocols - the potential for MAC equipment to be associated with immovable property in ways that result in the holder of an interest in the immovable property acquiring an interest in the associated MAC equipment under the law of the State in which the immovable property is located. The article first …

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

All Faculty Scholarship

This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

Harmonizing Choice-Of-Law Rules For International Insolvency Cases: Virtual Territoriality, Virtual Universalism, And The Problem Of Local Interests, Charles W. Mooney Jr.

All Faculty Scholarship

This paper explores the potential content and feasibility of a set of harmonized choice of law rules (HICOL Rules) that would apply in insolvency proceedings. It contemplates a main insolvency proceeding opened in a debtor’s center of main interests (“COMI”) and the existence of (or possibility of opening) one or more non-main (or secondary) proceedings. It also contemplates the possibility that an insolvency representative in a main or non-main proceeding may seek and be granted recognition in another state under the UNCITRAL Model Law on Cross-Border Insolvency (codified as Chapter 15 of the Bankruptcy Code in the U.S.) Under HICOL …

Dodd-Frank Orderly Liquidation Authority: Too Big For The Constitution?, Thomas W. Merrill, Margaret L. Merrill

Faculty Scholarship

Title II of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 establishes a new specialized insolvency regime, known as orderly liquidation, for systemically significant nonbank financial companies. While well intended, Title II unfortunately raises a number of serious constitutional questions. To vest authority in an Article III judge to appoint a receiver for such companies, yet also avoid a financial panic, Dodd–Frank requires that the judicial proceedings be conducted in secret, with no notice to the public or other interested parties on pain of criminal penalties, and that the judge rule on the petition to appoint the …

Effects Of The New Bankruptcy Code On Creditors With Secured Claims In Residential Real Property, Richard Mednick

Pepperdine Law Review

The sweeping changes brought about by the Bankruptcy Reform Act of 1978 may have a profound effect on the secured interests of lenders. The rights of a creditor against a debtor, and the procedure that he must follow vary with the chapter of the new Bankruptcy Code under which the debtor files his claim. Richard Mednick, a Judge on the Bankruptcy Court for the Central District of California, explains the procedures required and the interest affected by the most commonly invoked chapters of the new code. Judge Mednick strongly urges that creditors become familiar with these changes, as some new …

Bringing Manufactured Housing Into The Real Estate Finance System, Ann M. Burkhart

Pepperdine Law Review

Eight percent of the United States population - more than 23 million people - live in manufactured homes (also called mobile homes). In some years, more than 30% of the new homes sold have been manufactured. Moreover, manufactured housing is the most important form of unsubsidized affordable housing in this country. Up to two-thirds of the new affordable homes built each year have been manufactured. However, the manufactured housing industry currently is struggling to survive a meltdown in its sales and finance markets. A tremendous obstacle to the industry’s recovery is that most manufactured homes are characterized as personal property, …

Mortgages - Subrogation Of One Whose Loan Is Used To Pay A Senior Mortgage, Theodore R. Vogt

Michigan Law Review

S mortgaged the property in question to U, then conveyed the land and certain water rights to H, who gave a second mortgage on the land to M. Thereafter H conveyed the land and water rights to F, who borrowed from Z funds to retire the first mortgage, giving to Z a mortgage which it was agreed between F and Z should be a first mortgage, and transferring to Z the water rights as additional security. In an action by M to foreclose, held, Z was entitled to subrogation to the position of first mortgagee …

The Lien Or Equitable Theory Of The Mortgage--Some Generalizations, Edgar N. Durfee

Articles

The question is--What is the nature of the rights of a real property mortgagee in those jurisdictions which adopt the lien or equitable theory3 of the mortgage? In one sense this question calls for a full statement of the law of mortgages but that, of course, is not the sense in which the writer puts it. He means by it to put a broader and more scientific question--a question, be it at once confessed, of jurisprudence--yet a question which has an important bearing on, if it is not in fact conclusive of, several specific problems in the law, which will …