Law Commons^™

Emerging Circuit Split Over Modification Of Mortgages On Multi-Use Real Properties, Michal Zabadal

Fordham Journal of Corporate & Financial Law

For many decades, healthy levels of residential mortgage loans (“RMLs”) and their regulation have been among the major drivers of the economy. Because of the importance of RMLs for the condition of the national financial system and the general well-being of the society, it is essential that lenders are reasonably incentivized to originate these loans. A well-designed promise of higher recovery on RMLs in times of distress can be a compelling motivator. The Bankruptcy Code seeks to deliver on that promise by treating RMLs more favorably. It does that by barring the debtor-in-bankruptcy from modifying a claim secured by a …

Keeping The Lights On Through Dark Times: How Subchapter V Bankruptcy Should Protect Small Businesses Decimated By The Pandemic, Daniel Lebrun

Touro Law Review

Small to mid-market, independent businesses are at the heart of our economy and play a pivotal role in job creation. While it’s estimated by the House of Representatives that these companies account for over half of overall U.S. employment, they have been traditionally underserved in bankruptcy law. Historically, the resources necessary to complete a chapter 11 bankruptcy are not within reach for these small to mid-market businesses. Passed in 2019, the Small Business Reorganization Act has modified the Bankruptcy Code to provide new avenues for these small businesses in need. Impactful in its own right, it has emerged as a …

Combating Professional Error In Bankruptcy Analysis Through The Design And Use Of Decision Trees In Clinical Pedagogy, Timothy R. Tarvin

St. John's Law Review

(Excerpt)

This Article will address the positive impact of using the decision tree model in four parts. Part I will provide a historical overview of the evolution of legal education and the profession’s call for more experiential education, both generally and specifically, through clinical training and the use of technology. This Section will provide context and argue that the use of decision trees in the clinical setting is the natural culmination of the legal academy’s goals of teaching analytical skills, preparing graduates for practice, and incorporating new technology into the practice of law.

Part II will describe the legal malpractice …

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Maine Law Review

For decades, scholars have written about credit cards and attorney’s fees, but rarely together. This Article addresses the current financial crises of Americans, the credit card industry (including the Bankruptcy Abuse Prevention and Consumer Protection Act) and attorney’s fees—perhaps a unique combination. It is based upon an actual case that left the putative debtor in a worse financial crisis than before the lawsuit was filed. This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney’s fees, as well as the pitfalls in attorney’s fee legislation. It analyzes …

Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch

Fordham Law Review

Municipal bankruptcies have been making national news since the “Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson County gained notoriety for the record scale of their bankruptcy filings, only to be surpassed by Detroit shortly thereafter as the largest and most populous municipal bankruptcy filing. Historically, municipal bankruptcy occurred infrequently, leaving the nuances of many critical issues, including insolvency, asset utilization, and good faith, unexplored in case law. For example, how should a bankruptcy court analyze Detroit’s cityowned art museum that houses billions of dollars of art when bondholders, pensioners, and other unsecured creditors have unpaid claims? And how should …

Betting On The Upside: Why Affirming River Road Favors Distressed Debt Speculators Over The Rehabilitation Of Businesses, Julia L. Onorato

Northwestern University Law Review

The Chapter 11 bankruptcy process demands a careful balance between protecting the creditors’ rights to be repaid and allowing a failing entity the ability to restructure. The Supreme Court in RadLAX Gateway Hotel affirmed the Seventh Circuit’s holding in River Road and interpreted the Bankruptcy Code in a way that improperly shifts this balance towards the most senior creditors at the expense of business. This Note will analyze the circuit disagreement over the cramdown provision in the Bankruptcy Code and the Supreme Court’s ultimate resolution. It will argue that in light of recent trends in the credit markets - including …

Shooing The Vultures Away From The Consumer Bankruptcy Carcass: Attorney Fees Owed By Debtors For Marital Dissolution Are Not Domestic Support Obligations, Christopher V. Davis

University of Massachusetts Law Review

This Note will focus on consumer bankruptcy related to chapter 7 and chapter 13 filings. Section I provides an introduction to DSOs and the goals of enforcing them through bankruptcy. Section I also discusses the impact of DSO status on the automatic stay, discharge, priority status for property distribution of the bankruptcy estate, capability to reach exempt property, and application to attorney fees. Section II argues that, where attorney fees are not owed to a spouse, former spouse, or child, and do not fit within an impact exception, the fees are not DSOs, but instead are merely general non-secured claims. …

Reaffirmation Agreements In Consumer Bankruptcy Cases, Daniel A. Austin, Donald R. Lassman

University of Massachusetts Law Review

The following is from Chapter II of our book, Reaffirmation Agreements in Consumer Bankruptcy Cases. This chapter sets forth the debtor’s obligations in connection with reaffirmation of secured debt.

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 …

Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell

Georgia Journal of International & Comparative Law

No abstract provided.

The Unlucky Penny: How $0.01 In Collateral Value Can Limit The Debtor's Ability To Strip Off A Junior Mortgage In A Chapter 7 Bankruptcy Proceeding, Keri Mahoney

Touro Law Review

No abstract provided.

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.

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 Long And Winding Road: State Sovereign Immunity's Effect On Gaming License Revocation For The Casino Debtor, Christopher M. Humes

UNLV Gaming Law Journal

One of the most vital and contentious proceedings between a casino debtor and a regulatory agency is a post-petition license revocation hearing. Much debate exists about whether the license qualifies as property of the estate and whether the regulatory agency can be exempted from the protections inherent in the Bankruptcy Code due to the use of police and regulatory power. However, maybe the most contentious and impactful debate is whether the regulatory agency is free from the bankruptcy court’s jurisdiction due to the Eleventh Amendment’s guarantee of sovereign immunity.

At the center of the tension concerning sovereign immunity lies 11 …

Improving Bankruptcy Sales By Raising The Bar: Imposing A Preliminary Injunction Standard For Objections To § 363 Sales, Matthew A. Bruckner

Catholic University Law Review

No abstract provided.

In Re Davis, Adam Schlusselberg

NYLS Law Review

No abstract provided.

Chip Away At The Stone: The Validity Of Pre-Bankruptcy Clauses Contracting Around Section 363 Of The Bankruptcy Code, Matthew P. Goren

NYLS Law Review

No abstract provided.

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …

The Outer Fringes Of Chapter 11: Nonconsenting Senior Lenders' Rights Under Subordination Agreements In Bankruptcy, David Kravitz

Michigan Law Review

This Note focuses on the options a senior creditor in Frugal's position may have when a reorganization plan provides for payments in violation of a subordination agreement that the creditor wishes to enforce. Part I explains the different types of subordination agreements and discusses their treatment under pre-Code bankruptcy law and under the Bankruptcy Code. Because of the dearth of case law regarding nonconsenting senior lenders and subordination agreements, Part II considers a question in a related area of bankruptcy law where more authority exists: whether a reorganization plan may release a nonbankrupt guarantor from its obligations under the guaranty …

Conversion Of Nonexempt Property To Exempt Property On The Eve Of Bankruptcy In Arkansas, J. Thomas Hardin

University of Arkansas at Little Rock Law Review

No abstract provided.

Debtor-Creditor Relations—Arkansas Fraudulent Transfer Act, Coleen Miller Barger

University of Arkansas at Little Rock Law Review

No abstract provided.

Bankruptcy—Labor Contribution By Juror Interest Satisfies Fair And Equitable Standard For Cram Down, Kimberly Golden

University of Arkansas at Little Rock Law Review

No abstract provided.

Title Iii Of The Bankruptcy Amendments Act Of 1984: The Substantive Changes, Lucinda Mcdaniel

University of Arkansas at Little Rock Law Review

No abstract provided.

Bankruptcy—Eighth Circuit's Analysis Of The Chapter 13 Good Faith Requirement, Robert Victor Harper

University of Arkansas at Little Rock Law Review

No abstract provided.

The Bankruptcy Reform Act Of 1978–A Review And Comments, Glenn E. Pasvogel Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

State Action And Statutory Liens In Arkansas–A Reply To Professor Nickles, Earl M. Maltz

University of Arkansas at Little Rock Law Review

No abstract provided.

State Action And Statutory Liens In Arkansas–A Rejoinder To Professor Maltz, Steve H. Nickles

University of Arkansas at Little Rock Law Review

No abstract provided.

Baankruptcy-Usury-Plaintiff's Claim For Compound Interest Ruled Usurious; Simple Interest Disallowed To Give Effect To State's Deterrence Policy, Gerald Bohm

Fordham Urban Law Journal

Usury is the charging of interest for the use of money as a rate in excess of that permitted by statute. The Bankruptcy Act allows the trustee-in-bankruptcy to plead the defense of usury to a creditor's claim. A debtor-in-possession in a Chapter XI proceeding, who has all the rights and powers of the trustee, may also assert the defense of usury. There is, however, no federal usury statute and the Bankruptcy Act defines neither usury nor its effect. To resolve the usury issue the bankruptcy court has to look to the law of the jurisdiction in which the loan arose. …

Bankruptcy Preferences-Secured Transactions-Security Interest In After-Acquired Property Is Voidable Preference If Received Within Four Months Of Bankruptcy-In Re Portland Newspaper Publishing Co., Michigan Law Review

Michigan Law Review

In an effort to provide employment for several hundred workers who had lost their jobs in an unsuccessful strike against Portland's two largest newspapers, the local printers' unions and several civic leaders organized the Portland Reporter Publishing Co. (Reporter) to publish a rival newspaper. The unions also formed the Rose City Development Co. (Rose City), which leased facilities and equipment to Reporter and subsequently made several emergency operating loans to it. These loans were secured by an agreement designating as collateral all of Reporter's previously unsecured accounts receivable, both present and after-accruing. This type of agreement -securing after-acquired property of …

The Relative Priority Of Small Business Administration Liens: An Unreasonable Extension Of Federal Preference?, Ronald L. Olson

Michigan Law Review

During the past three decades, the priority of the federal government as against state and private creditors competing for the assets of debtors has been greatly strengthened. In terms of relative growth, the expansion of federal priority has been comparable to the increased commercial involvement of the United States. In more recent years, Congress and the judiciary have recognized that this increased governmental commercial activity necessitates a restriction in sovereign prerogatives. However, contrary to this general trend toward the contraction of sovereign prerogatives and for reasons appearing unsatisfactory to most commentators, the "sovereign prerogative" of priority to the assets of …