Law Commons^™

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

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

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 …

Avoidability Of Foreclosure Sales Under Section 547 Of The Bankruptcy Code, Adam Cohen

Bankruptcy Research Library

(Excerpt)

Should foreclosure sales that comply with state law be subject to avoidance under federal bankruptcy law? In BFP v. Trust Resolution Corp., the Supreme Court said no, at least when dealing with alleged section 548 fraudulent conveyances, as doing so would, inter alia, undermine state interests and raise substantial federalism concerns. Some courts have taken this reasoning and applied it to section 547 preferences as well, while others feel that the plain language of section 547 prohibits such an application. One recent case in the latter category is In re Whittle Development, Inc.

In general, transfers are …