Law Commons^™

Thwarting The Inevitability Of Over-Indebtedness, Lois R. Lupica, Zach Neumann

Emory Bankruptcy Developments Journal

No abstract provided.

Consumer Protection & Bankruptcy Law—Rewarding Repayment: Removing The Fear From Crushing Student Loan Debt Through Alternatives To Discharge, Sarah Holden

University of Arkansas at Little Rock Law Review

No abstract provided.

Analisis Kritis Mengenai Percepatan Waktu Penagihan Utang Dalam Sengketa-Sengketa Kepailitan, Siti Rahmah Sari Ramadhani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Law Number 37 of 2004 (UUK-PKPU) is a refinement of the old bankruptcy regulation of Faillissementsverordening (Fv) and Law Number 4 of 1998 (UUK). Completion is done in order to meet the needs and solve problems that arise in connection with bankruptcy. However, despite the changes and improvements to the regulation, there are still problems that arise, especially in accelerating the timing of debt collection (acceleration). In the UKK and Fv acceleration is not regulated normatively. So the judge has the discretion to make the discovery of the law differently in each case. In UUK-PKPU acceleration found in the explanation …

Komparasi Pengalihan Objek Jaminan Fidusia Dalam Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan Fidusia Dan Fatwa Dsn-Mui Nomor 68/Dsn-Mui/Iii/2008, Ibnu Iyadh

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Fiduciary institutions were born with the background of fulfilling the increasing and developing needs of the community and the many shortcomings of institutions that were previously the only institutions in fulfilling the needs of the community. which results in a person being unable to continue paying their debts, so that a debt transfer is carried out, among others, namely after paying a down payment of two or three installments in the first month, the debtor is not willing to pay the remaining installments on the grounds that he only wants to experience new goods and, due to frequent defaults committed …

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 …

When Is A Debt "Obtained By" Fraud?: Reconsideration Of The Fraud Nondischargeability Exception Under Section 523(A)(2) Of The Bankruptcy Code, Theresa J. Pulley Radwan

West Virginia Law Review

No abstract provided.

Dankruptcy: When The Green Runs Out, Marijuana Debtors Have Few Options, Jorge J. Rodriguez

Arkansas Law Review

The legalized marijuana industry is lucrative but surrounded with uncertainties. The divergence between state and federal law has pushed this industry into a state of limbo. Furthermore, at the federal level, the lack of enforcing the prohibition has only exacerbated the uncertainty. Historically, the federal government has taken a very relaxed approach and allowed marijuana businesses to operate with minimal interference. As a result, there is a thriving legalized marijuana industry operating throughout the majority of the United States. However, there are many obstacles which plague and threaten the future of this relatively young industry. Of particular importance, and the …

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …

Fifty Years After The Consumer Credit Protection Act: The High Price Of Wage Garnishment, Faith Mullen

Mitchell Hamline Law Review

No abstract provided.

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social …

Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart

Maine Law Review

The discharge injunction is an integral aspect of the “fresh start” that bankruptcy affords to many debtors. But there has been a growing threat to the viability of the bankruptcy discharge: zombie debt! Just when honest but unfortunate debtors think they have finally laid their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior. This Article discusses the motivation behind these questionable collection tactics and potential …

Ten Years After Consumer Bankruptcy Reform In The United States: A Decade Of Diminishing Hope And Fairness, Robert J. Landry Iii

Catholic University Law Review

The tenth anniversary of the effective date of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Reform Act), the largest reform to the consumer bankruptcy in the United States in a quarter of a century, will be marked in October of 2015. Prior to, and since its passage, scores of scholars have theorized about the impact of the Reform Act. The vast majority of research since its passage shows that the Reform Act has not had a long-term impact on filing rates. With this backdrop, the paper explores how the virtues of fairness for creditors and hope for individuals …

Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown

Fordham Law Review

Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their citizens. Should sovereigns be obligated to pay these debts? Were the debts really incurred by the sovereign or were they incurred by the governing regime in question? What if the lender knew in advance what the proceeds would be used for? …

Unfair Practices And Practicing Attorneys: Should The Fair Debt Collection Practices Act Apply To Communications Between Debt Collectors And Debtors' Attorneys?, Yosefa A. Englard

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I discusses the history of the Act and Congress's intent behind its enactment. Part I also analyzes some of the Act's provisions relating to debt collectors. Part II examines in detail the three current approaches taken by the circuit courts for determining the applicability of the Act to communications between debt collectors and debtors' attorneys. Part III argues that none of the current approaches appropriately resolves the issue. Additionally, Part III proposes a simple two-step inquiry for courts to employ when attempting to resolve whether communications toward a debtor's attorney are actionable …

Tools Of Ignorance: An Appraisal Of Deficiency Judgments, Alan M. Weinberger

Washington and Lee Law Review

While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of property he was unable to develop or market during the Great Recession. Matheny’s failure to succeed in real estate was the proximate cause of his return to baseball as manager of the St. Louis Cardinals.

Matheny’s story provides the backdrop for examining the methods by …

The Changing Practice Of Bankruptcy Law: An Analysis Of How Bankruptcy Practice Has Changed In The Last Decade, Michael Goldstein, Samantha Einhorn, Jill L. Phillips

University of Massachusetts Law Review

The practice of bankruptcy law has changed drastically over the last decade. An attorney starting out in the field in 2009 faces different issue than one who began in 1999. However, it’s not just the issues that come up with clients that make the practice so different, but the law of bankruptcy itself has changed. The economic downturn of the last eighteen months has changed the way the public views bankruptcy. The Bankruptcy Reform Act of 2005 and In re Bateman, a case decided in 2008, altered the landscape of bankruptcy practice forever. This article will walk through a …

Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood

Chicago-Kent Law Review

A survey of cases where federal courts abstain from hearing cases related to existing state court cases under the Fair Debt Collection Practices Act (FDCPA) reveals varying approaches and theories underlying those courts’ abstentions. This article attempts to distinguish FDCPA claims related to the validity of the underlying debt from claims arising out of debt collectors’ conduct in collecting a debt, and recommends that federal courts avoid abstaining from the latter. When Congress passed the FDCPA, it intended to provide access to a forum of the consumer’s choice to enforce their rights under the Act by serving as “private attorneys …

When Opting Out Is The Only Option: Protecting Small Business Debtors In Bankruptcy, Ryan Malone

William & Mary Business Law Review

This Note implores states that have not already done so to opt out of the provisions of the Federal Bankruptcy Code that place explicit limits on the amount a debtor is allowed to exempt from liquidation. By doing so, states will be able to provide debtors who operate their own small business a greater degree of protection from creditors, as those states are entitled to establish their own limit on the value of the tools of a debtor’s trade the debtor may shield in bankruptcy. This Note contends that Congress has evinced an intent within the last decade to restrict …

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

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

Pepperdine Law Review

No abstract provided.

The Damage Of Debt, Katherine Porter

Washington and Lee Law Review

No abstract provided.

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

University of Richmond Law Review

No abstract provided.

Bankruptcy Vérité, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

In the empirical study we report in Bankruptcy Fire Sales, we compared the recoveries from the going-concern bankruptcy sales of twenty-five large, public companies with the recoveries from the bankruptcy reorganizations of thirty large, public companies. We found that, controlling for the asset size of the company and its presale or pre-reorganization earnings ("EBITDA"), reorganization recoveries were more than double sale recovenes. We are honored that Professor James J. White has chosen to comment on our study. White is an eloquent defender of the status quo, pulls no punches, and always has something interesting to say. Bankruptcy Noir is …

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn

Michigan Journal of International Law

This Article on the French law continues a study of European consumer debt-relief systems, which the author began previously in an article on the German system. With rapid legal and practical developments in consumer debt-relief law, Europe provides an excellent comparative legal laboratory for observing the potential benefits and pitfalls of consumer bankruptcy reforms. In particular, French and German experiences with long-term payment plans shed useful light on the great debate raging in the United States over similar plans.

The Search For More Fairness In The Fair Debt Collection Practices Act, Elwin Griffith

University of Richmond Law Review

No abstract provided.

Options In Consumer Bankruptcy: An American Perspective, Jean Braucher

Osgoode Hall Law Journal

In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …

Setoff And Bankruptcy, Lawrence Kalevitch

Cleveland State Law Review

The code treats liens and setoffs as secured claims. A lienor under §506 receives a secured claim in the face amount of the debt secured only if the collateral has at least that value. Section 506(a) requires collateral valuation to determine the amount of the secured claim. Setoff in the face amount of a creditor's claim likewise requires valuation. Part II discusses §506(a) and §553 and how they may limit, in appropriate cases, the setoff right to less than the face amount of a creditor's claim. Part II shows that this reading of the Bankruptcy Code is not only consistent …

Rethinking Absolute Priority After Ahlers, John D. Ayer

Michigan Law Review

There was no evident reason why the Supreme Court granted certiorari in Norwest Bank Worthington v. Ahlers. It can be conceded that the issue was important: in the midst of an agricultural depression, a farmer was trying to hang onto his farm without paying the full amount of his bank debt. The farmer argued that he ought to be able to do so because he was offering to contribute "new value" beyond what he was obliged to contribute - specifically, his efforts as a farmer.

For Ahlers is a case with a past, as well as a future. Thus, in …

Constitutional Law—Due Process—Garnishment Procedures Must Provide For Notice To Postjudgment Debtor, Kathleen A. Hillegas

University of Arkansas at Little Rock Law Review

No abstract provided.