Law Commons^™

Transnational Bankruptcy Under International Law: Making A Case For Establishing A Unified System, Yanjun Zhao

Theses and Dissertations

In recent years, there has been a rapid increase in transnational bankruptcy cases around the world. Taking the United States as an example, from 2005 to June 30, 2020, the U.S. bankruptcy court has accepted 1488 procedural cases under Chapter 15 of the U.S. bankruptcy Code. “Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the Bankruptcy Code on behalf of foreign businesses doubled during 2020 and are on pace to set another record-breaking year in 2021 (with more than 123 filings in the first half of the year alone). Foreign debtors are increasingly looking to chapter 15 …

Mediating Disputes Arising Out Of Troubled Companies - Do It Sooner Rather Than Later, The Hon. Randall J. Newsome

Golden Gate University Law Review

Over the last several years, there has been much academic debate on the subject of “vanishing trials”—whether the settlement rate in bankruptcy and other courts is accelerating, and whether that is a healthy trend for our justice system. A more interesting question is why disputes in chapter 11 cases are not resolved sooner. Why does it take so much time and so much money for parties to settle their differences and arrive at a consensual chapter 11 plan?

Cite as 42 Golden Gate U. L. Rev. 661 (2012).

Obtaining The Release Of Grand Jury Evidence In Ponzi Cases, The Hon. Steven Rhodes

Golden Gate University Law Review

Evidence that law enforcement authorities obtain through the grand jury process is generally secret. Nevertheless, case law can provide a powerful basis for a trustee, a receiver or any party in a Ponzi case to obtain evidence that the government has in its possession as a result of its investigation of a Ponzi scheme. This Article considers the extent to which parties in a Ponzi scheme insolvency proceeding might be able to obtain evidence presented in a criminal grand jury proceeding relating to the Ponzi scheme.

Cite as 42 Golden Gate U. L. Rev.657 (2012).

Overcoming Administrative, Procedural And Evidentiary Hurdles In Ponzi Scheme Litigation, Sharon Z. Weiss, Natalie B. Daghbandan

Golden Gate University Law Review

The unfortunate reality that comes with a Ponzi scheme case in bankruptcy is a mass of deceived unsecured creditors clamoring for their money back, and few, if any, present assets within the bankruptcy estate with which to pay them. The sheer size of most Ponzi schemes cases necessarily presents unique evidentiary, procedural and administrative challenges to professionals seeking to sort out the failed Ponzi enterprise. Ponzi scheme cases are riddled with litigation, which generally falls into four categories: (1) litigation against the Ponzi scheme operator(s), (2) litigation against parties who enabled the scheme to continue (such as professionals), (3) litigation …

Black Swans, Ostriches, And Ponzi Schemes, Nancy B. Rapoport

Golden Gate University Law Review

Cite as 42 Golden Gate U. L. Rev. 627 (2012).

The Collapse Of Financial Fraud: Measuring Bankruptcy Avoidance Action, Jessica D. Gabel, Isaac Asher, Mary Beth Byington

Golden Gate University Law Review

Ponzi schemes lay their foundation on fraud. Once the con is exposed, the culprits are usually stripped of their pilfered millions and sent off to jail. Unfortunately for the victims, the process of recovering any portion of the money they lost in the scam is, to put it mildly, complicated. The challenge rests, in part, in differences between federal forfeiture statutes and Bankruptcy Code principles in determining what assets can be recovered and who is entitled to a portion of the Ponzi pie. What is a Ponzi scheme (as defined by the courts rather than the media)? The Second Circuit …

Handling Claims In Ponzi Scheme Bankruptcy And Receivership Cases, Kathy Bazoian Phelps

Golden Gate University Law Review

The end game for defrauded investors and other creditors in a Ponzi scheme case is the recovery of the maximum amount on their claims. Depending on whether the Ponzi perpetrator has landed in a bankruptcy case or a receivership proceeding, the rules governing the allowance and distribution priorities for claims filed in Ponzi scheme cases may vary. This Article discusses the treatment of the defrauded investor’s claim in both bankruptcy and receivership cases. This Article also contrasts relatively rigid provisions in the Bankruptcy Code for the allowance, priority and distribution of claims in Ponzi scheme cases with the more flexible …

Friction In Reconciling Criminal Forfeiture And Bankruptcy: The Criminal Forfeiture Part, Sarah N. Welling, Jane Lyle Hord

Golden Gate University Law Review

The federal government uses two general types of asset forfeiture, criminal and civil. This Article addresses criminal forfeiture, which allows the government to take property from defendants when they are convicted of crimes. It is “an aspect of punishment imposed following conviction of a substantive criminal offense.” The goal of this Article is to give an overview of the forfeiture process, specifically in relation to claims victims and creditors might assert as third-party claimants.

Cite as 42 Golden Gate U. L. Rev. 551 (2012).

Keynote Address: Stories In The Development Of Bankruptcy Law, Gerald F. Munitz

Golden Gate University Law Review

Cite as: 42 Golden Gate U. L. Rev. 539 (2012).

Debt And Crime: Inevitable Bedfellows, Karen Gebbia

Golden Gate University Law Review

Criminal law and bankruptcy law approach fraud with a variety of objectives, only some of which overlap. Each contains elements of both restorative and distributive justice—the notion that the fraudster should be held accountable, the injured should be compensated, and distribution should be fair. Yet, criminal law and bankruptcy law inculcate these goals with profoundly different understandings, histories, contexts and practices. Consequently, the long arm of the law and the strong arm of the trustee have uniquely honed tools, unavailable to the other, for achieving their purposes. Inevitably, then, tension arises when criminal law and bankruptcy law simultaneously attempt to …

Gebhart V. Gaughan: Clarifying The Homestead Exemption As To Post-Petition Appreciation, Natalie R. Barker

Golden Gate University Law Review

This case summary begins by discussing the facts and procedural history of the two consolidated appeals in Gebhart. Next, it outlines and reviews the analysis of the Ninth Circuit. Lastly, it concludes by briefly discussing the implications of the Ninth Circuit’s decision in Gebhart.

Cleaning The Mess Of The Means Test: The Need For A Case-By-Case Analysis Of 401(K) Loans In Chapter 7 Bankruptcy Petitions, Luke Welmerink

Golden Gate University Law Review

This Comment examines the relevant case law regarding Chapter 7 petitions and the policy implications of not considering 401(k) loan repayment a necessary expense. Section II provides an overview of the treatment of 401(k) loans in bankruptcy, as well as a more detailed review of means testing and an analysis of Other Necessary Expenses. Section III argues that courts should look to the facts and circumstances surrounding petitions to determine whether 401(k) loan repayments can be deducted as necessary expenses, and that doing so will not affect the ability of courts to properly dismiss abusive petitions under a totality-of-the-circumstances analysis. …

Consumer Bankruptcy Reform: Debtors' Prison Without Bars Or "Just Desserts" For Deadbeats?, Robert J. Landry Iii, Nancy Hisey Mardis

Golden Gate University Law Review

This article provides an overview of current bankruptcy law and filing trends in the United States. It then provides an overview of the major changes to consumer bankruptcy and further analyzes several of the more controversial areas of the new law, placing them in historical context and exploring the possible ramifications of these dramatically sweeping changes. Such changes are illustrated by the journey of hypothetical debtors, Ura and Ima Broke, through the new bankruptcy maze. This illustration shows the complexity and inconsistency of the amended Bankruptcy Code. Examining the reform from the vantage point of hypothetical debtors shows how the …

Take This House And Shove It: The Emotional Drivers Of Strategic Default, Brent T. White

Publications

No abstract provided.

Bankruptcy Law - Bfp V. Imperial Savings And Loan Association: Resolving The "Reasonably Equivalent Value" Standard In Avoiding Foreclosure Sales, Kevin F. Kilty

Golden Gate University Law Review

No abstract provided.

Bankruptcy Law - In Re Mitchell: Standards Of Valuation In Chapter 13 Proceedings Under 11 U.S.C. § 506(A), Edwin S. Clark

Golden Gate University Law Review

In re Mitchel marks the first examination by a circuit court of valuation standards used in Chapter 13 proceedings to establish the value of a creditor's secured claim in a vehicle. In Mitchell, the Ninth Circuit held that the standard to be applied in most cases is a vehicle's wholesale values and that any other standard, such as retail value, should be applied only where the debtor uses a vehicle as part of a going concern. This note will show that the Mitchell majority arrived at its rule by grounding its analysis in well-settled bankruptcy philosophy& and by strictly construing …

Bankruptcy Law - In Re Chg International, Inc.: The Ordinary Course Of Business Exception: What You See Is What You Get, Janina M. Elder

Golden Gate University Law Review

No abstract provided.

Bankruptcy Law, Charlene R. Ingersoll

Golden Gate University Law Review

No abstract provided.

Running The Gauntlet Of "Undue Hardship" - The Discharge Of Student Loans In Bankruptcy, Janice E. Kosel

Golden Gate University Law Review

To remedy supposed abuse, a proposal was made which ultimately was enacted as section 523(a)(8) of the Bankruptcy Reform Act of 1978. Henceforth, such student loans would be dischargeable in bankruptcy only if "such loan first became due before five years. . . before the date of the filing of the petition; or . . . excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor's dependents... ' This Article will first examine the legislative history of that provision and then review the case law implementing and interpreting the undue hardship …

Ukrainian Bankruptcy Law In The Context Of Regional And International Developments, Alexander Biryukov

Annual Survey of International & Comparative Law

During the period of Soviet rule there was no need for private law remedies to regulate economic relations, particular in the area of bankruptcy. After the Soviet Union's collapse, former republics and newly independent states started developing market-oriented laws to support democratization process. Due to Ukraine's lack of any bankruptcy legislation during the last century, 1992 marked the starting point of bankruptcy law formation in the country. The formation of bankruptcy laws in Ukraine and other countries in the region may be traced to two stages of development: "first wave" laws passed in 1990 through 1993, and "second wave" laws …

An Overview Of Insolvency Proceedings In Asia, Leslie A. Burton

Annual Survey of International & Comparative Law

This paper gives an overview of current bankruptcy (insolvency) proceedings in Asia. It will explain the existing laws, which are generally old and too outmoded to resolve modem cross-border debtor/creditor disputes. It will explore cultural attitudes which have both inhibited use of the existing laws and prevented meaningful changes to them. It will discuss how the changing structure of the market makes bankruptcy proceedings more common today than in the past, and appears to be leading many countries to revamp their bankruptcy laws. This paper will focus on the bankruptcy laws of eight Asian countries: Hong Kong, China, Taiwan, Indonesia, …

Toward An International Bankruptcy Policy In Europe: Four Decades In Search Of A Treaty, Leslie A. Burton

Annual Survey of International & Comparative Law

As multinational trade has increased, so has the need for crossborder insolvency agreements. For forty years, the European Community and European Union have attempted to agree on cross-border insolvency procedures. The author explores the history of these efforts, the policy issues which have made agreement difficult, and the demise of the EUs best hope for a cross-border insolvency agreement: the failed 1995 Convention. Finally, she compares past and current proposals, and explains why they are inferior solutions to the failed Convention.

Bankruptcy, Evert M. Makinen

Golden Gate University Law Review

No abstract provided.

Bankruptcy, Helen Coyne-Hoerle

Golden Gate University Law Review

No abstract provided.

The Morality Of Strategic Default, Brent T. White

Publications

No abstract provided.

Underwater And Not Walking Away: Shame, Fear, And The Social Management Of The Housing Crisis, Brent T. White

Publications

No abstract provided.

Small Business Reorganization And The Sabre Proposals, Karen Gebbia

Publications

Many bankruptcy experts suspect that the substantial costs and hurdles of reorganizing under chapter 11 are especially burdensome for small businesses and may significantly impair small businesses' ability to reorganize and survive. It should not be surprising, then, that bankruptcy practitioners, scholars, and judges agonize over the treatment of small businesses in reorganization; conferences are organized to consider the particular problems of financially distressed small businesses; Congress singled out small businesses for attention in the 1994 Bankruptcy Code amendments; and the National Bankruptcy Review Commission recommended reforms applicable to small business reorganization cases.

Much of the debate concerning the treatment …

Interpreting The Bankruptcy Code: An Empirical Study Of The Supreme Court's Bankruptcy Decisions, Karen Gebbia

Publications

The Supreme Court has issued forty-eight bankruptcy decisionsin the two decades since the Bankruptcy Code became law. In at least thirty of these cases, the Supreme Court granted certiorari to mediate conflicts among the circuit courts of appeal.

This article studies the Court's interpretive methods. Studies of lower court bankruptcy decisions might also provide valuable information concerning interpretive method, particularly if such studies examine whether conflicting decisions arise from conflicting interpretive methods, whether appellate courts and bankruptcy courts apply divergent interpretive methods, and whether textual or non-textual decisions are more frequently overruled by higher courts or legislative action.

Bank Of America National Trust & Savings Ass'n V. 203 North Lasalle Street Partnership: A Different Interpretation, Karen Gebbia

Publications

The story of 203 North LaSalle Street is archetypical of real estate investments. A real estate investment partnership that had no other significant assets owned a substantial part of the 203 North LaSalle Street building, just as thousands of other real estate partnerships own thousands of other downtown office buildings across the United States. Like hundreds of other single asset real estate partnerships, the 203 North LaSalle Street Partnership fell upon financial hard times and filed a chapter 11 reorganization case to prevent the mortgagee from foreclosing on the building. As in many such cases, the financially decimated partners sought …

State Sovereign Immunity And The Bankruptcy Code (Part One), Karen Gebbia

Publications

This article is the first of a two-part series in which Professor Gebbia-Pinetti considers how the complexities of state sovereign immunity apply to bankruptcy actions. The present article lays the foundation by analyzing the source, scope, and nature of states' immunity from suits filed in federal court to enforce state and federal law. This includes a discussion of traditional sovereign immunity, Eleventh Amendment immunity, abrogation of immunity, and the Supreme Court's decision in Seminole Tribe v. Florida. The second article will consider the extent to which the bankruptcy estate may enforce Bankruptcy Code actions against the states, notwithstanding state sovereign …