Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication Type
Articles 1 - 14 of 14
Full-Text Articles in Law
Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson
Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson
Cleveland State Law Review
Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …
The Chapter 13 Debtor's Absolute Right To Dismiss, Daniel J. Sheffner
The Chapter 13 Debtor's Absolute Right To Dismiss, Daniel J. Sheffner
Cleveland State Law Review
This Article discusses the current state of the Chapter 13 dismissal circuit split, providing an overview of 1307(b) and other relevant sections of the Bankruptcy Code, illustrative pre Marrama case law on either side of the divide, and the Marrama decision itself. This Part examines Marrama’s role in shifting the debate from one based primarily on 1307’s text to that of the bankruptcy courts’ general powers to sanction bad faith conduct, as well as lower courts’ responses to that decision. Part III examines Law, paying special attention to the Court’s discussion of the limitations placed on bankruptcy courts’ statutory and …
Not "Special" Enough For Chapter 7: An Analysis Of The Special Circumstances Provision Of The Bankruptcy Code, Roma Perez
Cleveland State Law Review
The “special circumstances” provision of the Bankruptcy Code, Section 707(b)(2)(B), allows a consumer debtor to rebut the presumption of abuse that is triggered when debtor fails the means test. Congress enacted the statute as a procedural safeguard fully aware that means testing, as set-out in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, could lead to arbitrary results for some debtors. For consumer debtors, the provision functions as a type of escape-hatch. It allows a debtor to avoid dismissal of his Chapter 7 bankruptcy case by introducing documentary evidence that the means test calculation, and its attendant income …
Corporate Complicity Claims: Why There Is No Innocent Decison-Maker Exception To Imputing An Officer's Wrongdoing To A Bankrupt Corporation, Jonathan Witmer-Rich
Corporate Complicity Claims: Why There Is No Innocent Decison-Maker Exception To Imputing An Officer's Wrongdoing To A Bankrupt Corporation, Jonathan Witmer-Rich
Law Faculty Articles and Essays
This Article evaluates the innocent decision-maker exception in light of the doctrinal foundations of the in pari delicto defense and the Wagoner rule, general principles of agency law, and the lower court decisions that address these issues. It concludes that the innocent decision-maker exception is a doctrinal error, traceable to the logical misstep of a single lower court whose decision continues to be mistakenly followed. The innocent decision-maker exception is inconsistent with the basic principles of agency law that underlie imputation in the context of in pari delicto and the Wagoner rule. No court of appeals has explicitly addressed the …
International Secured Transactions And Insolvency, Mark J. Sundahl, Susan Jaffe Roberts, Jeff Carruth, Walter Douglas Stuber
International Secured Transactions And Insolvency, Mark J. Sundahl, Susan Jaffe Roberts, Jeff Carruth, Walter Douglas Stuber
Law Faculty Articles and Essays
The following article surveys some of the significant developments in the field of cross-border insolvencies and secured financing during the twelve months prior to December 1, 2005. The most publicized and long-awaited bankruptcy development was the enactment of legislation in the United States to adopt the UNCITRAL framework for the recognition of foreign insolvency proceedings. Even with the adoption of the UNICTRAL framework, American courts continued to render significant decisions under the former law which may, over time, inform practice, under the UNICTRAL provisions. Brazil also enacted significant bankruptcy reforms during 2005. The international law of secured transactions experienced a …
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Cleveland State Law Review
This paper focuses on the use of carryforwards in a bankruptcy situation. In particular it examines the economic implications of Treasury Regulation § 1.269-3(d), which was finalized on January 6, 1992. This regulation creates a presumption that if the acquirer of a loss corporation does not continue the corporation's business, the transaction was consummated for tax avoidance purposes. Therefore under § 269, which limits use of NOLs after an acquisition, the loss corporation's NOLs cannot be used by the acquirer. This presumption, however, can be overcome by strong evidence that other motives controlled the decision.
The Rehnquist Court, Strict Statutory Construction And The Bankruptcy Code, Carlos J. Cuevas
The Rehnquist Court, Strict Statutory Construction And The Bankruptcy Code, Carlos J. Cuevas
Cleveland State Law Review
This article analyzes the Rehnquist Court's use of strict statutory construction. It will argue that strict statutory construction can be justified under public choice and agency theories of statutory interpretation, and that strict construction promotes the implementation of bankruptcy policy. Strict statutory construction, moreover, is beneficial because it produces reliability and predictability, which is essential to our dynamic economy. The use of strict statutory construction precludes a court from relying on legislative history to manufacture the result that the court thinks is the best solution to the problem. Another justification for strict statutory construction is that it prevents bankruptcy judges …
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Cleveland State Law Review
This paper focuses on the use of carryforwards in a bankruptcy situation. In particular it examines the economic implications of Treasury Regulation § 1.269-3(d), which was finalized on January 6, 1992. This regulation creates a presumption that if the acquirer of a loss corporation does not continue the corporation's business, the transaction was consummated for tax avoidance purposes. Therefore under § 269, which limits use of NOLs after an acquisition, the loss corporation's NOLs cannot be used by the acquirer. This presumption, however, can be overcome by strong evidence that other motives controlled the decision.
Setoff And Bankruptcy, Lawrence Kalevitch
Setoff And Bankruptcy, Lawrence Kalevitch
Cleveland State Law Review
The code treats liens and setoffs as secured claims. A lienor under §506 receives a secured claim in the face amount of the debt secured only if the collateral has at least that value. Section 506(a) requires collateral valuation to determine the amount of the secured claim. Setoff in the face amount of a creditor's claim likewise requires valuation. Part II discusses §506(a) and §553 and how they may limit, in appropriate cases, the setoff right to less than the face amount of a creditor's claim. Part II shows that this reading of the Bankruptcy Code is not only consistent …
The Use Of Ohio's Preference Law In Bankruptcy: An Alternative To Section 547 With A Longer "Reach-Back" Period, Thomas D. Buckley
The Use Of Ohio's Preference Law In Bankruptcy: An Alternative To Section 547 With A Longer "Reach-Back" Period, Thomas D. Buckley
Law Faculty Articles and Essays
Ohio is one of the few states with a preference law of general application among its debtor-creditor statutes. Ohio Revised Code sections 1313.56 and 1313.57 give creditors an avoidance power similar to a bankruptcy trustee's avoidance power under federal bankruptcy law. While this article compares the federal and state preference rules, evaluating the pratical significance of the differences between them, the relative strength of the two laws is less important than the fact that the bankruptcy trustee can choose whichever of the two laws is more effective with respect to any given prebankruptcy transaction. Thus, both laws might be applied …
Insider Guaranties: Their Effect On The Bankruptcy Preference "Reach Back" Period And Possible Use In Getting An "Ordinary Course" Exception Avoidance, Thomas D. Buckley
Insider Guaranties: Their Effect On The Bankruptcy Preference "Reach Back" Period And Possible Use In Getting An "Ordinary Course" Exception Avoidance, Thomas D. Buckley
Law Faculty Articles and Essays
In 1990 the Sixth Circuit decided two bankrupcty preference cases, Ray v. City Bank & Trust Co. (In re C-L Cartage Co.) ("Cartage") and Gosch v. Burns (In re Finn) ("Finn"), that will have important consequences in the administration of bankruptcy proceedings and will also influence the way lenders and borrowers do business with each other in the future, whether or not a bankruptcy ever ensues. This article first describes briefly the mechanics of preference law and the application of it in Cartage and Finn. The article then focuses primarily on the Cartage decision, because the analytic approach taken by …
The Implementation Of Bankruptcy Code Section 707(B): The Law And The Reality, Wayne R. Wells, Janell M. Kurtz, Robert J. Calhoun
The Implementation Of Bankruptcy Code Section 707(B): The Law And The Reality, Wayne R. Wells, Janell M. Kurtz, Robert J. Calhoun
Cleveland State Law Review
The introduction of section 707(b) to the bankruptcy code has raised many difficult interpretational issues. This article focuses on those issues concerning the implementation of section 707(b). Under the law, only the courts and the U.S. Trustees are permitted to raise the issue of substantial abuse. Therefore, to determine how section 707(b) is actually being administered, a survey was distributed to the U.S. Bankruptcy Courts and the U.S. Trustees. The results of the survey are integrated into a discussion of the current status of the law and presented in this article. This analysis identifies serious shortcomings with the law that …
A Critical Analysis Of Bankruptcy Code Section 707(B), Wayne R. Wells, Janell M. Kurtz
A Critical Analysis Of Bankruptcy Code Section 707(B), Wayne R. Wells, Janell M. Kurtz
Cleveland State Law Review
In response to criticism by the credit industry and the dramatic rise in the amount of consumer bankruptcy filings, a number of provisions relating to consumer credit, often referred to as the "Consumer Credit Amendments," were included in the Bankruptcy Amendments and Federal Judgeship Act of 1984....Section 707(b)9 is one of the most significant changes included in the Consumer Credit Amendments. This entirely new provision allows bankruptcy courts to dismiss a Chapter 7 petition for substantial abuse when the case is filed by an individual debtor whose debts are primarily consumer debts. The purpose of the Consumer Credit Amendments is …
The Automatic Stay In Bankruptcy, John Francis Murphy
The Automatic Stay In Bankruptcy, John Francis Murphy
Cleveland State Law Review
This article describes the automatic stay in bankruptcy proceedings. Section I explains the purpose of the automatic stay, lays out the history and scope of the stay, and lists parties that can be protected by the stay. Section II briefly describes how the scope of the automatic stay may be increased by a party’s motion, under 11 USC 105(A). Section III discusses the effects of violations of the stay, and gives remedies for such violations. Section IV gives a detailed explanation of possible modifications of the automatic stay, as well as how it may be terminated. Finally, Section V rounds …