Law Commons^™

Legal And Tax Incidents Of Compulsive Behavior: Lessons From Zarin, Babette Barton

Babette Barton

Focuses on the implication of Zarin v. Commissioner on legal dispensation of compulsive gambling behavior in the United States. Need of legislation for legal accommodation of compulsive behavior; Cancellation of debts due to insolvency; Use of single transaction doctrine in justifying cancellation of debt.

Horton V. O'Cheskey Opinion, Fifth Circuit Court Of Appeals

Historical and Topical Legal Documents

No abstract provided.

Construction And Development Financing V1 & V2, Marshall E. Tracht, Alvin L. Arnold

Books

Providing innovative strategies for financing land acquisitions, construction, and development, Construction and Development Financing covers every aspect of negotiating ADC financing. Allowing fast, easy and on-point research, this book covers:

• The consequences of default

• Environmental assessments

• ADA compliance

• New money sources

• Lender liability

• Stalled nonresidential construction

• New FHA rules for condominiums

• Mitigating construction fraud

• A new program of tax credits

Section titles discuss:

• Land loans

• Land development loans

• Construction loans: application, underwriting approval, and commitment

• Enforcement and workouts

• Other financing transactions

• Public policy

• Much …

Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer

University of Richmond Law Review

This article will cover both consumer and business bankruptcy issues, and is limited primarily to decisions by courts within the Fourth Circuit since mid-2012. Despite these general parameters, because bankruptcy is federal law, there are some cases outside the Fourth Circuit that are included due to their influential and instructive nature. The intention of this update is to provide bankruptcy practitioners in Virginia with concise, yet compre-hensive, case summaries that will prove to be a valuable researchtool.

Table Of Contents: Annual Survey 2015

University of Richmond Law Review

No abstract provided.

Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown

Fordham Law Review

Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their citizens. Should sovereigns be obligated to pay these debts? Were the debts really incurred by the sovereign or were they incurred by the governing regime in question? What if the lender knew in advance what the proceeds would be used for? …

Becker V. Becker, 131 Nev. Adv. Op. 85 (Oct. 29, 2015), Paul George

Nevada Supreme Court Summaries

In response to a certified question by the United States Bankruptcy Court for the District of Nevada, the Court concluded that under NRS 21.090(1)(bb) a debtor can exempt his stock in the corporations described in NRS 78.746(2), but his economic interest in that stock is still subject to the charging order remedy in NRS 78.746(1).

The Gendered Dimensions Of Social Insurance For The "Non-Poor" In Canada, Stephanie Ben-Ishai

Stephanie Ben-Ishai

This article emerges from an exploration of the meanings of consumer bankruptcy in the current context of Canadian society, as well as the role consumer bankruptcy plays in shaping this context. Examining consumer bankruptcy through the lens of gender relations, the claim is made that Canadian consumer bankruptcy legislation, policies, practices, and accompanying discourses are implicated in the causation and perpetuation of the conditions of marginalization and subordination endured by women who experience long-term poverty. These women are affected not only in terms of access to the bankruptcy system, but also by the broader implications of the delivery of consumer …

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Stephanie Ben-Ishai

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Stephanie Ben-Ishai

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …

The Law And Economics Of Consumer Debt Collection And Its Regulation, Todd J. Zywicki

Todd J. Zywicki

This article reviews the law and economics of consumer debt collection and its regulation a topic that has taken on added urgency in light of the announcement by the Consumer Financial Protection Bureau that it is considering new regulations on the subject. Although stricter regulation of permissible debt collection practices can benefit those consumers who are in default and increase demand for credit by consumers, overly-restrictive regulation will result in higher interest rates and less access to credit for consumers, especially higher-risk consumers. Regulation of particular practices may also have the unintended consequence of providing incentives for creditors to more …

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Patricia E Dilley

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …

Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley

Law Faculty Popular Media

This short article discusses the Bankruptcy Code's unusual treatment of certain intellectual property licenses. First, it gives a brief overview of § 365(n) of the Bankruptcy Code. It then provides a short analysis of a difficult but important question: If a licensee of a debtor’s intellectual property opts to retain its license rights under § 365(n), who should receive the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor in bankruptcy? The answer that has emerged in some of the case law is somewhat surprising -- after providing nuanced …

The Secured Party And His Nemesis, The Trustee In Bankruptcy: After-Acquired Property, Unidentified Proceeds, And Selected Preference Problems, John P. Finan

Akron Law Review

A trustee in bankruptcy, in addition to succeeding to the rights of the bankrupt,' has several avoiding powers. Some of these avoiding powers are based on practices which, like vice, are of "so frightful mien that to be hated [need] but to be seen." Preferences may not be included among such practices. Indeed, the English view exhibits ambivalence towards preferences. At one time it regarded "preferences [as] the good fortune of the creditor." A later view was "that the preferring of one creditor over others within a short time of bankruptcy and in contemplation thereof, was a 'fraud on the …

Access To Civil Courts - Indigents - Filing Fee; United States V. Kras, William I. Arbuckle

Akron Law Review

Robert William Kras presented his voluntary petition in bankruptcy to the United States District Court for the Eastern District of New York in May of 1971. With the petition his Legal Aid Society Attorneys filed a motion for leave to proceed without prepayment of any of the filing fees required as a prerequisite to discharge. Kras alleged that he was unable to pay the fees, even in installments, and that they should not be required of him either because (1) he was entitled to proceed in forma pauperis under the Federal Statute, or (2) because the provisions of the Bankruptcy …

Bankruptcy Treatment Of Intellectual Property Assets: An Economic Analysis, Peter S. Menell

Peter Menell

No abstract provided.

Who Bears The Burden? The Place For Participation Of Municipal Residents In Chapter 9, C. Scott Pryor

C. Scott Pryor

No abstract provided.

The Timing Of Perfection Of Security Interests Under The Uniform Commercial Code And The Bankruptcy Reform Act, Richard A. Mann, Michael J. Phillips

Akron Law Review

This article will examine this new relationship as it applies to a specific problem created by the interaction between Article 9 and bankruptcy law: the timing of a "transfer" when a security interest is challenged as preferential in a bankruptcy proceeding. Resolution of this question is often critical for determining the secured party's ability to recover assets pledged as collateral when the debtor goes into bankruptcy. The article will begin by explaining the "timing of transfer" problem as it arose under Article 9 and the Bankruptcy Act. Then it will describe and evaluate the new solution provided by the Bankruptcy …

The Rejection Of Collective Bargaining Agreements Within Bankruptcy Reorganization: Reconciling A Legislative Dilemma, Gust Goutras

Akron Law Review

In 1981, a Dallas based conglomerate, LTV Corporation, spun-off a subsidiary known as Wilson Foods. The purpose for this action was that Wilson Foods, the nation's fifth largest meat packer was suffering from financial difficulties. Shortly after the spin-off, Wilson Foods entered into a collective bargaining agreement with its unionized employees, initiating a wage freeze through 1985. Under this arrangement, Wilson Foods' losses continued to escalate.

Adequate Assurance Of Payment Under Section 366 Of The Bankruptcy Code: A Term For Interpretive Flexibility Or Judical Confusion?, Veryl Victoria Miles

Akron Law Review

This article will focus on the interpretive struggle that the courts have encountered in making determinations of what constitutes adequate assurance of payment under section 366 and how this struggle might be eliminated so as to make compliance with the requirements of adequate assurance of payment less of a problem for the utility and bankrupt debtor. It is the thesis of this article that section 366 determinations of adequate assurance have resulted in interpretive confusion, leaving debtors and creditors with little guidance as to what criteria should be considered in negotiating an adequate assurance of payment. The recommended solution to …

Section 542(C) Of The Bankruptcy Reform Act Of 1978 And Section 4-303 Of The Ucc: A Less Than Perfect Fit?, John P. Finan

Akron Law Review

The Uniform Commercial Code (UCC) 4-303 addresses two areas where the UCC and the Bankruptcy Code intersect. The first relates to the vulnerability of drawee banks that honor checks after their customer has taken bankruptcy (has filed a voluntary petition or is the defendant in an involuntary case); the second relates to the timing of transfers made by check under 547 of the Bankruptcy Code (the preference section). In both areas there is a less than perfect fit between the Bankruptcy Code and UCC 4-303. The first area poses problems for practitioners whose clients have received notice of bankruptcy in …

Section 547(C)(2) Of The Bankruptcy Code: The Ordinary Course Of Business Exception Without The 45 Day Rule, David J. Desimone

Akron Law Review

This article will look at some of the principles set forth by case law and provide a more structured method of analyzing cases under section 547(c) (2). In addition, it will examine a few problem areas that are certain to arise in section 547(c) (2) litigation in the near future: (1) Does section 547(c) (2) now protect principal payments on long term debt?; and, (2) will section 547(c) (2) protect a payment to one creditor when all or nearly all other creditors were not paid during the preference period? But before doing so, a short explanation of the Code's definition …

International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford

Hon. Samuel L. Bufford

The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose. This Article begins with a detailed examination of the two principal cases where conflicts …

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Hon. Samuel L. Bufford

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management. The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …

The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford

Hon. Samuel L. Bufford

This article discusses minor changes to the U.S. Bankruptcy Code that would make avoiding foreclosure possible for a homeowner who (a) is presently not able to make the mortgage service payments but (b) could make payments for a mortgage that is reduced to the market value of the property and to a fixed market mortgage rate. This article does not address the political issue of what protections Congress might decide to provide mortgage owners and servicers as a part of such legislation.

Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford

Hon. Samuel L. Bufford

Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …

Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford

Hon. Samuel L. Bufford

This Article details my disagreements with Professor Lynn LoPucki's article "Global and out of Control" (79 Am. Bankr. L.J. 79). Part I discusses universalism and territorialism, especially the modified version of universalism that I support. Part II examines the international venue provisions of the Model Law and the EU Regulation. Part III introduces the relevant venue shopping cases. Only two groups of cases are relevant for the purpose of this paper: the French and German subsidiaries of Daisytek and Eurofood (a subsidiary of Parmalat SpA, the Italian conglomerate). None of the other cases that Professor LoPucki discusses was subject to …

What Is Right About Bankruptcy Law And Wrong About Its Critics, Samuel Bufford

Hon. Samuel L. Bufford

My comments in this paper focus on the papers in thus Symposium by Professors Barry Adler, James Bowers, and Philippe Aghion, Oliver Hart, and John Moore. I argue that the central points of these papers are gravely mistaken because they completely misunderstand the character of the bankruptcy caseload and procedures, they ignore some important purposes of bankruptcy reorganization, and they misstate the success rate for reorganizations. I have chosen these papers for comment for two reasons: they recommend radical changes in bankruptcy law, and they are based on the thinnest knowledge of bankruptcy practice. Incidentally, they also all take an …

Romanian Bankruptcy Law: A Central European Example, Samuel Bufford

Hon. Samuel L. Bufford

Romania now has one of the best-drafted bankruptcy laws in Central and Eastern Europe. The new Romanian bankruptcy law went into effect on August 26, 1995 and replaced the previous bankruptcy provisions in §695-987 of the Romanian Commercial Code, which was translated from the Italian Commercial Code of 1884 and enacted in 1887. While the commercial code fell into disuse during the Communist era, it was never repealed. After the Romanian revolution and the demise of Nicolae Ceauşescu at the end of 1989, the commercial code as well as the civil code remained good law and needed only to be …

A Proposal For Chapter 10: Reorganization For 'Too Big To Fail' Companies, George Kuney, Michael James

Michael C James

The Bankruptcy Code provides tools that are well-suited to addressing and resolving the financial problems faced by the "Big Three" automakers and other "too big to fail" companies ("TBTF Companies"). But Chapter 11 as it presently exists would inevitably impose great harm on vendors and other interrelated businesses resulting in a ripple effect causing cascading business failures and lay-offs. With comparatively minor changes to the Bankruptcy Code, enacted in the form of a streamlined new Chapter 10, however, TBTF Companies could use the powerful tools of the bankruptcy process to remedy their core financial problems without imposing on society unnecessary …