Law Commons^™

Equitable Subordination- Where Is Applies, What It Does, And The Implications That Result, Lauren Casparie

Bankruptcy Research Library

(Excerpt)

Equitable subordination, as permitted under section 510(c)(1) of the Bankruptcy Code, provides the court the ability to reorganize creditor’s debt in the light of any inequitable conduct. The code gives courts the ability to subordinate the level of priority of a creditor’s claim in light of any inequitable conduct committed by that creditor. This remedy is applied in cases where the creditor has acted in an inequitable manner, causing injury or creating unjust positions for other creditors. This remedy is remedial, not punitive, and limited only to the extent necessary to remedy the damage caused by the wrongdoing creditor. …

Clean Water Act, Section 404 Applicants: May The Odds Be Ever In Your Favor, Jason Bailey

American University Business Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

In Search Of The Golden Mean: Examining The Impact Of The President's Proposed Changes To The Cfaa On Combatting Insider Misuse, Shawn E. Tuma

SMU Science and Technology Law Review

No abstract provided.

The Reasonable Certainty Standard For Patent Claim Definiteness: The Standard's Backdrop And Its Effect On The Balance Of Power In Patent Infringement Actions, Ekaterina G. Long

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Have We Missed Our Chance: U.S. Lng Exports In A World With Low Oil Prices, Andres Nelson

SMU Science and Technology Law Review

No abstract provided.

Pollen In The Wind: Economic And Legal Consequences When Nature Responds To Man, Kristen M. Zahnow

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Interstellar Travel And The Mission For Outer Space: A Human Rights Perspective, Roy Balleste

SMU Science and Technology Law Review

No abstract provided.

A Picture's Worth A Thousand Words: Why Ballot Selfies Are Protected By The First Amendment, Daniel A. Horwitz

SMU Science and Technology Law Review

No abstract provided.

Public Officials' Facebook Likes: The Case For Leaving Regulation Of Official Likes To The Torches And Pitchforks Of Constituents, Haleigh Jones

SMU Science and Technology Law Review

No abstract provided.

Legal Causation: Hydraulic Fracturing And Groundwater Contamination, Ashley Leonard-Roche

SMU Science and Technology Law Review

No abstract provided.

The Supreme Court Participates In Patent Reform: Judicial Case Management, Aaron Dilbeck

SMU Science and Technology Law Review

No abstract provided.

Short-Circulating Legal Guidance In The Digital Age: An Evaluation Of Inadequate Protections For The First And Fourth Amendments, And The Electronic Communication Privacy Act, Audrey Lorene Leeder

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

The Sony And Opm Double Whammy: International Law And Cyber Attacks, Tim Mccormack

SMU Science and Technology Law Review

No abstract provided.

The Subsidy Question In King V. Burwell, Antonio F. Perez

Scholarly Articles

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

Patent Boundaries, Elizabeth I. Winston

Scholarly Articles

A patent grants a limited right to exclude others from practicing an invention within the United States, its territories and possessions. Much has been written about the limits of the patent grant and how to determine what the protected invention may be. At the same time, scholars have not systemically analyzed the geographic limitations of United States patents, a critical component of a patentee’s limited right. A patent’s geographical scope is not simple to discern. Commentators have neither analyzed the patent boundaries collectively nor delineated the scope of patent sovereignty on land, in the air and at sea. Technology has …

Whether Undistributed Chapter 13 Payment Plan Funds Held By A Chapter 13 Trustee Should Be Distributed To The Debtor Or The Debtor’S Creditors After Conversion From Chapter 13 To Chapter 7, Rosa Aliberti

Bankruptcy Research Library

(Excerpt)

Qualified individuals seeking to reorganize their debts may file under Chapter 13 of the Bankruptcy Code. Under chapter 13, a debtor makes payments according to a court approved payment plan, which is administered by a chapter 13 trustee, and remains in possession of all the property of the estate. Once a debtor makes all his payments under the chapter 13 payment plan, he has a right to seek a discharge, provided that he meets certain requirements. These requirements include that the debtor: (1) certifying that he paid all domestic support obligations prior to the certification being made; (2) received …

Chapter 11 Liquidations And The Termination Of Collective Bargaining Agreements, Cecilia Ehresman

Bankruptcy Research Library

(Excerpt)

Section 1113 of the Bankruptcy Code governs the modification or rejection of a collective bargaining agreement (“CBA”) by a chapter 11 trustee or debtor-in-possession. To modify or reject a CBA, a trustee or debtor-in-possession must (1) make a proposal to the union which provides the “necessary modifications in the employees benefits and protections that are necessary to permit the reorganization of the debtor”; (2) provide the union with relevant information as is necessary to evaluate the proposal; and (3) meet with the union and confer in good faith. For the modification or rejection to take place, the union must …

Self-Employed Debtors Face A Hard Truth When Calculating Their Current Monthly Income For The Applicable Commitment Periods Under Chapter 13 Plans, Arthur Rushforth

Bankruptcy Research Library

(Excerpt)

A bankruptcy court may confirm a debtor’s chapter 13 plan of reorganization if the requirements of section 1325(a) of the Bankruptcy Code are satisfied. If the chapter 13 trustee or an unsecured creditor objects to the confirmation of the plan, however, the bankruptcy court may only confirm the plan if it either provides for the repayment in full of claims or that the debtor must devote all of his projected disposable income towards payments of his unsecured creditors during the plan’s “applicable commitment period.” The debtor’s applicable commitment period is five years if the debtor’s current monthly income exceeds …

Rule 9011 Of The Federal Rule Of Bankruptcy Procedure, Nancy Bello

Bankruptcy Research Library

(Excerpt)

Rule 9011(b) of the Federal Rules of Bankruptcy Procedure, the bankruptcy counterpart to Rule 11 of the Federal Rules of Civil Procedure (“Rule 11”), provides, that in presenting a pleading to the court, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by …

The Earmarking Doctrine: Can It Be Used To Protect Late-Recorded Mortgages In Preference Action?, Michael Benzaki

Bankruptcy Research Library

(Excerpt)

Borrowers often seek to refinance their home loan mortgages in order to attain more favorable interest rates and other terms. Essentially, in these refinancing transactions, “the parties are looking simply to exchange one more expensive secured loan for another less expensive secured loan.” Typically, as part of the transaction, a refinancing lender will discharge the original mortgage and record a new mortgage. It is not uncommon for a delay to occur such that the new mortgage is recorded over thirty days after the lender transferred the funds to pay off the original loan. In such a case, if the …

Does The Fdcpa Apply In Bankruptcy?, Garam Choe

Bankruptcy Research Library

(Excerpt)

In 1977, Congress enacted the Fair Debt Collection Practices Act (“FDCPA”) to remedy rampant abusive debt collection practices by debt collectors. A year later, the Bankruptcy Code was enacted under Title 11 of the United States Code. Conflicts arise as to whether which law applies when debt collectors use abusive debt collection practices while seeking to recover from a debtor in a bankruptcy case. Circuit courts are split as to whether the Bankruptcy Code displaces the FDCPA in the bankruptcy context. Some circuit courts have concluded that the Bankruptcy Code displaces the FDCPA in the bankruptcy context. Alternatively, some …

Borrowers And Bankruptcy Trustees’ Unsuccessful Attempts To Avoid A Mortgage Under The “Splitting-The-Note” Theory, Alana Friedberg

Bankruptcy Research Library

(Excerpt)

In 1993, the mortgage industry created the electronic database Mortgage Electronic Registration System (“MERS”) in order to “track ownership interests in residential mortgages.” MERS “serves as the mortgagee in the land records for loans registered on the MERS System, and is a nominee (or agent) for the owner of the promissory note.” To date, MERS holds title to around 60 million home mortgages, about half of all home mortgages in the United States.

Borrowers and bankruptcy trustees have attempted unsuccessfully to argue a mortgage or deed of trust is void if a third party, such as MERS, was designated …

Professional Fee Enhancements: Determining Whether A Professional Is Entitled To A Fee Enhancement Under Section 330 Of The Bankruptcy Code, Adrianna R. Grancio

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code governs the compensation of a professional person employed under section 327 or 1103 of the Bankruptcy Code. Under section 330(a), the court may award a professional “reasonable compensation for actual [and] necessary services.” Section 330 provides a non-exclusive list of factors for a court to consider in determining whether the proposed compensation is reasonable. In addition to these statutory factors, courts also analyze the proposed fee by using two methods utilized in pre-bankruptcy code cases; (1) “Lodestar” method and (2) factors from Johnson v. Georgia Highway Express, Inc (the “Johnson Factors”).

The determination of whether the …

Student Loans Can Be Discharged (At Least Partially) In Bankruptcy After All, Carmella Gubbiotti

Bankruptcy Research Library

(Excerpt)

Section 523 of the Bankruptcy Code sets forth debts that are not dischargeable. Among the non-dischargeable debts, which a debtor will still owe after they receive a bankruptcy discharge, are debts from educational loans. As such, these student loan debts may prevent many debtors from receiving a truly fresh start following bankruptcy. Courts historically have approached the undue hardship exception to this rule narrowly, applying it only where the debtor, under the circumstances, could not reap the benefit of her education.

This Article will discuss the various tests courts use to determine whether an educational debt is dischargeable. Part …

An Oversecured Creditor’S Post-Petition Attorneys’ Fees, Governed By State Law Or Federal Law’S 11 U.S.C. 506(B), Charles Lazo

Bankruptcy Research Library

(Excerpt)

In bankruptcy, an oversecured creditor is generally entitled to post-petition interest on their underlying claims, and post-petition reasonable fees, costs, or charges provided for under a contract or state statute. Although an oversecured creditor might be entitled to attorneys’ fees under a contract provision or a state statute, bankruptcy courts will review such fees for reasonableness. However, the Bankruptcy Code does not provide what laws govern on the issue of whether fees are reasonable. Currently, there is a three-way split among courts: (1) the majority of courts rule that federal law preempts state law as to the enforceability and …

The Exception To The Automatic Stays: Determining Whether Revenues Are Pledged Special Revenues, Debra March

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code provides two automatic stays in cases under chapter 9. These automatic stays, with limited exceptions, prevent both direct and indirect collection efforts against a municipal debtor. The first automatic stay provided by section 362(a) generally stays all direct collection efforts against the debtor. In addition, section 922(a) provides for an automatic stay that, with limited exception, also stays the commencement and continuation of claims against an officer as inhabitant of a municipal debtor, and the enforcement of a lien on or arising out of taxes or assessments of the municipal debtor. However, section 922(a) imposes a …