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Full-Text Articles in Law

Covid-19 And The Rise In Commercial Real Estate Bankruptcies: The Path To Reach The Goals Of Bankruptcy Code §365(D)(3), Jefferey Kirwin May 2023

Covid-19 And The Rise In Commercial Real Estate Bankruptcies: The Path To Reach The Goals Of Bankruptcy Code §365(D)(3), Jefferey Kirwin

The Journal of Business, Entrepreneurship & the Law

This article will explore and explain the two approaches circuit courts use when § 365(d)(3) of the Bankruptcy Code is at issue and will analyze the best approach in the context of COVID-related increase in commercial tenants’ bankruptcy claims. Specifically, this article will analyze how each approach affects the parties by explaining which party is protected at the different stages, and will explain what and when a tenant must pay a landlord. This article will then describe options each party could pursue at different stages in the bankruptcy and outline how each option affects the payment to the landlord. Lastly, …


May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark May 2022

May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark

Journal of the National Association of Administrative Law Judiciary

On April 1, 2021, the Biden administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper interrogates the leading arguments for and against the Biden administration’s capacity to forgive this student loan debt strictly using administrative action. This article first surveys the history of federal student loan forgiveness programs in the United States. It then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the …


The New Gold Standard For Sports Psls: The Provisions That Allow The Golden State Warriors To Overpower A Bankruptcy Estate, Michael Medved May 2020

The New Gold Standard For Sports Psls: The Provisions That Allow The Golden State Warriors To Overpower A Bankruptcy Estate, Michael Medved

The Journal of Business, Entrepreneurship & the Law

This comment will focus on how this second key difference implemented in the Warriors’ PSL would affect an eventual bankruptcy proceeding of a purchaser into their “membership program.” In the event of a purchaser filing for bankruptcy liquidation under chapter seven of the bankruptcy code, the PSL will join the rest of the bankrupt’s assets in becoming property of the now-bankrupt purchaser’s creditors estate. Purchasers into the Warriors’ offering can be either individuals or corporations. This comment will provide an analysis of how the debtor, estate, and team will likely fare in terms of recouping the value of the PSL …


Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun Oct 2017

Cross-Border Insolvencies: To “Universalize” Or To Arbitrate?, Young Hye (Martina) Chun

Pepperdine Dispute Resolution Law Journal

This note makes a cost-benefit analysis of the U.S. Bankruptcy Code Chapter 15 and International Commercial Arbitration in the context of cross-border bankruptcy proceedings. Part I sets the stage by providing two opposing theoretical approaches to cross-border insolvencies: territorialism and universalism. Part II introduces the UNCITRAL’s Model Law on Cross-Border Insolvency, which is incorporated into the U.S. Bankruptcy Code Chapter 15. It presents how the Model Law has attempted to compensate for the lack of a global court by incorporating universalism. Part III demonstrates that while Chapter 15 sounds good in theory, it fails to address the very issue it …


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

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 …


How Courts Can Prevent Excess Emitters From Using Bankruptcy As A Forum To Avoid California Ab 32’S Allowance Deductions, Mohammed Tehrani Nov 2014

How Courts Can Prevent Excess Emitters From Using Bankruptcy As A Forum To Avoid California Ab 32’S Allowance Deductions, Mohammed Tehrani

The Journal of Business, Entrepreneurship & the Law

This paper identifies bankruptcy as a forum in which entities that exceed their emissions limit might be able to avoid the accompanying allowance deduction. Specifically, an entity might be able to sell its assets free and clear of its allowance deduction liabilities through Section 363 to a new company comprised of the same actors. Part II contrasts which liabilities can be discharged through a Chapter 11 plan and which can be avoided through a free and clear sale under Section 363. Part III analyzes whether allowance deductions could be discharged through a Chapter 11 plan or avoided through a free …


Reconciling The Municipal Pension Problem With Chapter 9'S Automatic Stay: A Case Note On In Re City Of San Bernardino, Michael Simon Nov 2014

Reconciling The Municipal Pension Problem With Chapter 9'S Automatic Stay: A Case Note On In Re City Of San Bernardino, Michael Simon

The Journal of Business, Entrepreneurship & the Law

Using In re City of San Bernardino as a springboard, this Note explores both the descriptive and analytic dimensions of a municipality seeking relief from its pension woes within the context of Chapter 9 of the Bankruptcy Code. As a descriptive matter, this Note illustrates that municipalities need alternative solutions to address the growing public pension problem besides issuing municipal bonds. Given the structure of certain public defined benefit pension systems, the strategy of issuing municipal bonds to raise cash has substantial disadvantages. In certain contexts, Chapter 9 of the Bankruptcy Code provides a significantly better alternative. Unlike a business …


Third Time's The Charm: The Coming Impact Of The Restatement (Third) Restitution And Unjust Enrichment In Bankruptcy, C. Scott Pryor May 2013

Third Time's The Charm: The Coming Impact Of The Restatement (Third) Restitution And Unjust Enrichment In Bankruptcy, C. Scott Pryor

Pepperdine Law Review

Bankruptcy courts have frequently been characterized as courts of equity. Often this characterization has accompanied unusually relaxed interpretation or application of a provision of the Bankruptcy Code. However, this understanding does not exhaust the meaning of equity in bankruptcy. Historically, equity covered a large range of topics–trusts and estates, injunction, contracts, specific performance, unjust enrichment, restitution, and disgorgement. In addition, equity was not limited to particular remedies. Equity’s remedies certainly included money damages but recognized many more. The law of equity was substantive as well as remedial; it recognized primary rights as well as secondary rights of rectification. Among equity's …


Debtor's Defense To A Deficiency Judgment Under Ucc , Gail Clifford Hutton May 2013

Debtor's Defense To A Deficiency Judgment Under Ucc , Gail Clifford Hutton

Pepperdine Law Review

No abstract provided.


Adjudication Under The Bankruptcy Amendments Of 1984: An Examination Of Congressional Response To The Northern Pipeline Decision, John M. Evans Apr 2013

Adjudication Under The Bankruptcy Amendments Of 1984: An Examination Of Congressional Response To The Northern Pipeline Decision, John M. Evans

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Effects Of The New Bankruptcy Code On Creditors With Secured Claims In Residential Real Property, Richard Mednick Feb 2013

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 …


The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler Jan 2013

The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler

Pepperdine Law Review

Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.


The Dischargeability In Bankruptcy Of Debts For Alimony And Property Settlements Arising From Divorce, John Francis Murphy Jan 2013

The Dischargeability In Bankruptcy Of Debts For Alimony And Property Settlements Arising From Divorce, John Francis Murphy

Pepperdine Law Review

No abstract provided.


The Code And The Constitution: Fifth Amendment Limits On The Debtor's Discharge In Bankruptcy, Nicholas A. Franke Jan 2013

The Code And The Constitution: Fifth Amendment Limits On The Debtor's Discharge In Bankruptcy, Nicholas A. Franke

Pepperdine Law Review

No abstract provided.


Rejection Of Nonresidential Leases Of Real Property In Bankruptcy: What Happens To The Mortgagee's Security Interest? , William E. Winfield Nov 2012

Rejection Of Nonresidential Leases Of Real Property In Bankruptcy: What Happens To The Mortgagee's Security Interest? , William E. Winfield

Pepperdine Law Review

No abstract provided.


Standing To Sue A Carrier's Killers , Davis J. Howard Nov 2012

Standing To Sue A Carrier's Killers , Davis J. Howard

Pepperdine Law Review

No abstract provided.


The New Value Exception To The Absolute Priority Rule In Chapter 11 Reorganizations: What Should The Rule Be? , Linda J. Rusch Nov 2012

The New Value Exception To The Absolute Priority Rule In Chapter 11 Reorganizations: What Should The Rule Be? , Linda J. Rusch

Pepperdine Law Review

No abstract provided.


Mandatory Class Action Lawsuits As A Restructuring Technique, Bryant B. Edwards, Jeffrey A. Herbst, Selina K. Hewitt Nov 2012

Mandatory Class Action Lawsuits As A Restructuring Technique, Bryant B. Edwards, Jeffrey A. Herbst, Selina K. Hewitt

Pepperdine Law Review

No abstract provided.


Home Mortgage Strip Down In Chapter 13 Bankruptcy: A Contextual Approach To Sections 1322(B)(2) And (B)(5), Mark S . Scarberry, Scott M. Reddie Nov 2012

Home Mortgage Strip Down In Chapter 13 Bankruptcy: A Contextual Approach To Sections 1322(B)(2) And (B)(5), Mark S . Scarberry, Scott M. Reddie

Pepperdine Law Review

No abstract provided.


Playing The "Get Out Of College Free" Card: Dischargeability Of Educational Debts In Chapter 7 Bankruptcy, Julie J. Heimark Oct 2012

Playing The "Get Out Of College Free" Card: Dischargeability Of Educational Debts In Chapter 7 Bankruptcy, Julie J. Heimark

Pepperdine Law Review

No abstract provided.


Continuing The Litigation Of Collateral Valuation In Bankruptcy: Associates Commercial Corp. V. Rash, Kenneth L. Reich Oct 2012

Continuing The Litigation Of Collateral Valuation In Bankruptcy: Associates Commercial Corp. V. Rash, Kenneth L. Reich

Pepperdine Law Review

No abstract provided.


Asbestos Legislation Ii: Section 524(G) Without Bankruptcy, Francis E. Mcgovern Apr 2012

Asbestos Legislation Ii: Section 524(G) Without Bankruptcy, Francis E. Mcgovern

Pepperdine Law Review

No abstract provided.


Legislative Attempts To Address Asbestos Litigation, Steven Kazan Apr 2012

Legislative Attempts To Address Asbestos Litigation, Steven Kazan

Pepperdine Law Review

No abstract provided.


Asbestos Litigation And Bankruptcy: A Case Study For Ad Hoc Public Policy Limitations On Joint And Several Liability, Richard L. Cupp Jr Apr 2012

Asbestos Litigation And Bankruptcy: A Case Study For Ad Hoc Public Policy Limitations On Joint And Several Liability, Richard L. Cupp Jr

Pepperdine Law Review

Over a decade ago, the Federal Judicial Conference warned of an asbestos litigation “disaster of major proportions.” The Supreme Court of the United States has described the litigation as a “crisis.” According the RAND Institute for Civil Justice, by the end of 2000, more than 600,000 asbestos claims were filed. RAND estimates that as many as three million more plaintiffs may eventually file claims. Most new claimants are not sick. The flood of claims has forced almost sixty companies into bankruptcy; many of these bankruptcies are very recent. As a result, defendants with only remote connections to asbestos – known …


Till V. Scs Credit Corp.: Can You "Till" Me How To Cram This Down? The Supreme Court Addresses The Proper Approach To Calculating Cram Down Interest Rates, Phillip J. Giese Mar 2012

Till V. Scs Credit Corp.: Can You "Till" Me How To Cram This Down? The Supreme Court Addresses The Proper Approach To Calculating Cram Down Interest Rates, Phillip J. Giese

Pepperdine Law Review

No abstract provided.


Mortgage Wars Episode V - The Empiricist Strikes Back (Or Out): A Reply To Professor Levitin's Response , Mark S. Scarberry Feb 2012

Mortgage Wars Episode V - The Empiricist Strikes Back (Or Out): A Reply To Professor Levitin's Response , Mark S. Scarberry

Pepperdine Law Review

Professor Adam Levitin has responded to my recent symposium article critiquing proposed congressional legislation that would allow modification (including strip down) of home mortgages in Chapter 13 bankruptcy. A portion of my Critique criticized his empirical studies concerning the likely effect of the proposed legislation on mortgage interest rates and availability, and also criticized the arguments he has made in support of the proposed legislation. The Critique did note, however, that the insight involved in conceiving of such empirical studies was impressive. Surprisingly, Professor Levitin’s Response fails to deal with the substantial case authority discussed in my Critique. He treats …


Back To The Future With Chapter 13: A Response To Professor Scarberry, Adam J. Levitin Feb 2012

Back To The Future With Chapter 13: A Response To Professor Scarberry, Adam J. Levitin

Pepperdine Law Review

Professor Mark Scarberry has put forth a formidable critique of my empirical study of mortgage market sensitivity to bankruptcy modification risk. As this response shows, however, his critique does not hold up under scrutiny. Professor Scarberry argues that my study design is invalid because, as he reads the current state of the law, cramdown is virtually impossible. Therefore, he contends, we should not expect markets to exhibit sensitivity to cramdown risk, so no policy conclusions can be derived from my finding of market insensitivity. Regrettably, Professor Scarberry overreads the state of the law. The law is in fact unsettled, and …


A Critique Of Congressional Proposals To Permit Modification Of Home Mortgages In Chapter 13 Bankruptcy, Mark S. Scarberry Feb 2012

A Critique Of Congressional Proposals To Permit Modification Of Home Mortgages In Chapter 13 Bankruptcy, Mark S. Scarberry

Pepperdine Law Review

Proposed amendments to the Bankruptcy Code permitting strip down of under secured home mortgages to the court-determined value of the homes and other modifications of home mortgages in Chapter 13 would substantially alter the risk characteristics of home mortgages, with likely substantial effects on future mortgage interest rates and future mortgage availability. Thus, the future societal cost of such a change in the law likely would be large. This article explains and supports that thesis, primarily on the ground that the proposed changes would leave mortgage holders with all of the future downside risk in the real property market while …


Bankruptcy Federalism: A Doctrine Askew , Margaret Howard Jan 2012

Bankruptcy Federalism: A Doctrine Askew , Margaret Howard

Pepperdine Law Review

No abstract provided.


Keeping Score When Bankruptcy Principles And The Federal Anti-Assignment Act Collide: Government Contractors' Options Concerning Executory Contracts, Tanya M. Kiatkulpiboone Jan 2012

Keeping Score When Bankruptcy Principles And The Federal Anti-Assignment Act Collide: Government Contractors' Options Concerning Executory Contracts, Tanya M. Kiatkulpiboone

The Journal of Business, Entrepreneurship & the Law

No abstract provided.