Law Commons^™

Paying Paul And Robbing No One: An Eminent Domain Solution For Underwater Mortgage Debt, Robert C. Hockett

Robert C. Hockett

In the view of many analysts, the best way to assist “underwater” homeowners — those who owe more on their mortgages than their houses are worth — is to reduce the principal on their home loans. Yet in the case of privately securitized mortgages, such write-downs are almost impossible to carry out, since loan modifications on the scale necessitated by the housing market crash would require collective action by a multitude of geographically dispersed security holders. The solution, this study suggests, is for state and municipal governments to use their eminent domain powers to buy up and restructure underwater mortgages, …

Fixing Florida's Execution Lien Law Part Two: Florida's New Judgment Lien On Personal Property, Jeffrey Davis

Jeffrey Davis

Under both the prior and current laws, a creditor seeking to satisfy a judgment out of property of the judgment debtor obtains a writ of execution from the clerk of the court that issued the judgment and then delivers the writ to a sheriff in one of Florida's sixty-seven counties. The writ commands the sheriff to levy on property of the debtor until the amount stated in the writ is satisfied. Under the prior law, delivery of the writ to the sheriff not only initiated the execution process, but under the seminal case of Love v. Williams, it also created …

Water Bankruptcy, Christine A. Klein

Christine A. Klein

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as …

National Bankruptcy Review Commission Tax Recommendations: Notice, Jurisdiction, And Corporate Debtors, Jack F. Williams

Jack F. Williams

Pursuant to congressional mandate, the National Bankruptcy Review Commission (NBRC) reported its recommendations for modification of the Bankruptcy Reform Act of 1978, as amended (the Bankruptcy Code), to the President, Congress, and Chief Justice of the Supreme Court on October 20, 1997. This Article, the second and final installment analyzing the tax recommendations of the NBRC, focuses on the proposed revisions relating to, among other things, taxation of corporate and partnership debtor estates. In particular, this Article discusses the requirement of reasonable notice to the government, bankruptcy court jurisdiction over tax controversies, bankruptcy administration affecting tax matters, chapter 11 plan …

The Bankruptcy Reform Process: Maximizing Judicial Control In Wage Earners' Plans, Marjorie L. Girth

Marjorie L. Girth

No abstract provided.

The Role Of Empirical Data In Developing Bankruptcy Legislation For Individuals, Marjorie L. Girth

Marjorie L. Girth

Symposium: As We Forgive Our Debtors

Veiled Egos: Alter Ego, Veil-Piercing, And Sections 362(A) And 727(A), Amir Shachmurove

Amir Shachmurove

No abstract provided.

The Orderly Liquidation Authority: Fanatical Or Familiar? Idealistic Or Unrealistic?, Stephanie P. Massman

Stephanie P Massman

The systemic financial crisis of 2008 spurred the failure of numerous financial and non-financial entities. Regulators addressed each of these failures on an ad hoc ex-post basis, granting multiple bailouts in various forms. The refusal to extend these bailouts to one firm, Lehman Brothers, however, caused further panic and contagion throughout the already unstable market as one of the largest financial institutions of the U.S. underwent an extremely lengthy and value-destructive Chapter 11 bankruptcy. Criticism surrounding not only the bailouts, but also the decision to allow Lehman to fail under the Bankruptcy Code, led to the inclusion of the Orderly …

Litigating For The Future Of Public Pensions, Paul Secunda

Paul M. Secunda

Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on. These alarming developments involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in …

Unquantifiable Wrongs, Incomparable Remedies: Post-Petition Enforcement Of Noncompetition Agreements, Amir Shachmurove

Amir Shachmurove

No abstract provided.

Seeking Solutions To Financial History Discrimination, Lea Krivinskas Shepard

Lea Krivinskas Shepard

Employers’ use of credit reports to evaluate prospective job applicants has generated considerable scrutiny in the popular press and academic literature, but few proposals for reform. This Article explores three possible ways of reducing the risk of financial history discrimination in the employment setting.

First, imposing inquiry limits on employers’ use of credit reports, a policy recently adopted or under consideration in the majority of states, is unlikely to be effective, since states’ inquiry limits are currently narrowly drafted and therefore advance few anti-discriminatory objectives. In addition, inquiry limits cannot prevent self-interested individuals from voluntarily revealing their credit histories and …

The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner

Michelle M. Harner

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? And perhaps more importantly, who owns or has an interest in these soft variables? This article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of …

Bankruptcy Rule 7004(H) After Espinosa: A Timely Distinction Between Constitutional And Statutory Service, Amir Shachmurove

Amir Shachmurove

In a contested matter or adversary proceeding, Federal Rule of Bankruptcy Procedure 7004(h) sets forth the requisites for service on an “insured depository institution.” Subject to three exceptions, a motion or complaint must be served by certified mail on an officer of these statutorily defined institutions. In a Chapter 13 case, a debtor may attempt to strip-off a wholly unsecured junior mortgage via a motion under § 506(a) pursuant to Rule 3012, a plan provision in accordance with § 1322(b)(2), an adversary proceeding, or some combination. This article focuses on how a debtor’s failure to satisfy Rule 7004(h) affects the …

Peticion De Quiebra Directa Por El Acreedor, Carlos Molina Sandoval

Carlos Molina Sandoval

El pedido de quiebra por el acreedor es una vía sumaria, rápida, en la cual el juez, sin que medie una amplia etapa cognitiva, determina la acreditación de ciertos supuestos y procede a la declaración de la quiebra -y a la posterior orden de subasta de los bienes que integran la masa falencial-. Pero esta sumariedad procesal no tiene entidad suficiente para sustentar la naturaleza ejecutiva del juicio de quiebra.

Unstayed Non-Default State Judgments And The Bona Fide Dispute Language, William Burton

Bocconi Legal Papers

This Note begins by discussing involuntary bankruptcy generally, the 1984 amendment made to the code affecting this issue, the relative legislative history, and the development of a definition for bona fide dispute. Second, both approaches for dealing with unstayed non-default state judgments as they relate to the requirements of involuntary bankruptcy will be examined. Third, this Note investigates the persuasiveness and negativities behind both approaches. Finally, in an attempt to resolve the ambiguity and solidify Delaware and Pennsylvania courts and the Circuits courts themselves, a suggestion will be made that the Third Circuit, and eventually the Supreme Court, adopt the …

Case In Brief Against Chapter 14, Bruce Grohsgal

Bruce Grohsgal

No abstract provided.

Should § 707(B) Apply In Chapter 7 Cases Converted From Chapter 13?, Anna Haugen, James Eidson, Amir Shachmurove

Amir Shachmurove

No abstract provided.

Keeping Current: The Trustee Fought Law (With Equity) And Law Won: The U.S. Supreme Court’S Recent Decision In Law V. Siegel, Juliet M. Moringiello

Juliet M. Moringiello

No abstract provided.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Bankruptcy Revision: Process And Procedure, Doug Rendleman

Doug Rendleman

None available

Liquidation Bankruptcy Under The '78 Code, Doug Rendleman

Doug Rendleman

None available

Honesty Is The Best Policy: Why Good Faith Should Be Required In Chapter 7 Bankruptcies Under § 707(A), Justin Forcier

Justin Forcier

A circuit split exists in today’s bankruptcy courts over whether § 707(a) of the Code requires a debtor to file his Chapter 7 petition in good faith. Some courts have failed to recognize that allowing bad faith petitions to move forward does not align with the spirit of the bankruptcy system and creates a greater and unnecessary burden on those courts and creditors. Therefore, courts should find there is a good-faith requirement in the Code under § 707(a), because finding so will promote continuity, allow those debtors who did file in good faith to receive a faster resolution, and promote …

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

Aspectos Procesales De La Reforma Financiera En Mexico, Jorge E. De Hoyos Walther, Ignacio Ochoa, Karla S. Hernandez, Rolando Escalante

Jorge E De Hoyos Walther

Resumen de los aspectos procesales de la reforma financiera aprobada en México en el año de 2014. Nuevas facultades de la CONDUSEF y derechos de los usuarios de servicios financieros.

Marco Fidel Suárez: Víctima Del País Político.®, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo

Marco Fidel Suárez: la víctima de la masoneria política, la hipoteca de bienes y la venta de salarios presidenciales.

A Simple Theory Of Complex Valuation, Julia Simon-Kerr, Anthony Casey

Julia Simon-Kerr

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-­‐‑recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact finding. We …

International Insolvency And International Arbitration - A Preliminary Perspective, Samuel L. Bufford

Hon. Samuel L. Bufford

International insolvency law and international arbitration law have historically existed in separate worlds that have rarely intersected. However, the time has come to give more serious consideration to whether, and to what extent, international arbitration can provide useful assistance in international insolvency cases. This paper contains some preliminary observations that may be useful in developing this topic.

Goals And Governance In Municipal Bankruptcy, Juliet M. Moringiello

Juliet M. Moringiello