Open Access. Powered by Scholars. Published by Universities.®
- Publication Type
Articles 1 - 2 of 2
Full-Text Articles in Law
"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei
"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei
St. John's Law Review
(Excerpt)
This Note sides with the “no harm, no foul” approach in this debate, arguing that bankruptcy courts should not avoid prepetition transfers of otherwise exempt property under § 548 simply because an exemption was not actually taken and the transfer was instead the alternative path used to shield the property from collection. Part I of this Note explains the constructive fraud and exemption provisions of the Bankruptcy Code, including state opt-out provisions which are particularly applicable to this issue. Part I also discusses the legislative history of federal bankruptcy law with particular focus on the creation of the Bankruptcy …
Conflict In The Bankruptcy Code: Ramification Of A Trustee’S 363(F) Right To Sell Property “Free And Clear” On The Lessee’S 365(H) Right To Retain Property, Aaron Leaf
Bankruptcy Research Library
(Excerpt)
Section 363(f) of title 11 of the United States Code (the “Bankruptcy Code”) allows a trustee to sell property “free and clear of any interest in such property” that a third party might have if certain conditions are met. Section 365(h) of the Bankruptcy Code allows the lessee of a rejected lease to either retain the property with all rights appurtenant to the estate, or treat such lease as terminated and sue for damages. Courts are split on if these sections of the Bankruptcy Code are compatible. The majority of courts have found these sections are not compatible, and …