Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Bankruptcy

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 1517

Full-Text Articles in Law

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon Jan 2022

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of ...


Pandemic Hope For Chapter 11 Financing, David A. Skeel Jr. Nov 2021

Pandemic Hope For Chapter 11 Financing, David A. Skeel Jr.

Faculty Scholarship at Penn Law

One of the biggest surprises of the recent pandemic from a bankruptcy perspective has been the ready availability of financing. A variety of factors—such as an estimated $2.5 trillion in available funding at the outset of the crisis and the buoyant stock market—may have contributed. In this Essay, I focus on a less widely appreciated factor, a striking shift in the capital structure of many corporate debtors. Rather than borrowing from one group of lenders, debtors now often borrow from multiple groups of diverse lenders. Although the new capital structure complexity has downsides, it also could counteract ...


The Survival Of Animal Care Organizations Impacted By The Covid-19 Pandemic In 2020, Juan Fernando Torrico Oct 2021

The Survival Of Animal Care Organizations Impacted By The Covid-19 Pandemic In 2020, Juan Fernando Torrico

Environmental and Earth Law Journal (EELJ)

This note assessed how animal care organizations and the animals in their care were impacted, negatively and positively, by the coronavirus pandemic. Several animal care organizations in the United States–including animal shelters, rescues, sanctuaries, and zoos–were contacted directly, and invited to share their experiences from the COVID-19 pandemic in 2020. They provided valuable in-depth insight into how government shutdowns and social distancing impacted their facility; if any of the animals in their care tested positive for COVID-19; how the animals in their care were affected indirectly by COVID-19; if they sought and received any government assistance to keep ...


Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez Oct 2021

Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez

Research Collection School Of Law

This article analyses the legal, market and institutional features needed to become an international hub for debt restructuring. For that purpose, it explores the strategy followed by Singapore, as well as the market and institutional factors generally found in other leading centres for legal and financial services such as the United States, the United Kingdom and Hong Kong. In jurisdictions traditionally having creditor-oriented insolvency systems, such as the United Kingdom, Hong Kong and Singapore, one of the primary challenges for the improvement of the restructuring framework for debtors consists of making sure that the insolvency system remains protective of the ...


The Measure Of A Monitor's Role, Alejandro E. Gonzalez Aug 2021

The Measure Of A Monitor's Role, Alejandro E. Gonzalez

Electronic Thesis and Dissertation Repository

This study examines the monitor, a court-appointed officer under the Companies’ Creditors Arrangement Act, in order to determine whether and how to best secure its independence. Concerns over the role are increasingly over whether it can maintain its supposed impartiality and avoid conflicts of interest. This study centers on its fiduciary duty, long discussed in the courts, as both problematic because it is not conclusively defined, and as the best means of establishing the monitor as a fair and impartial guardian of public confidence in Canadian insolvency law. By examining leading insolvency law theories, international and Canadian insolvency policy, and ...


The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet Jun 2021

The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet

Journal Sharia and Law

The UAE Cabinet approved a federal law to regulate cases of insolvency of natural persons or individuals. In 2016, the UAE government had adopted a similar insolvency law for companies which was widely welcomed by businesses and financial institutions. The legal framework for insolvency for both companies and individuals are expected to improve the competitiveness and the ease of doing business of the UAE. Debt restructuring for individuals under legal protection is widely seen as a great step forward in helping those who are unable to pay their debts from going bankrupt. “The approval of a new federal law to ...


Student Loan Debt In Bankruptcy: Central Florida's Program Leading In The Right Direction, Vincent Milione May 2021

Student Loan Debt In Bankruptcy: Central Florida's Program Leading In The Right Direction, Vincent Milione

Barry Law Review

No abstract provided.


The Crypto Quandary: Is Bankruptcy Ready?, Megan Mcdermott Apr 2021

The Crypto Quandary: Is Bankruptcy Ready?, Megan Mcdermott

Northwestern University Law Review

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard- hit businesses will need to reorganize to adjust to new conditions, while out- of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer ...


A Certainty Of Hopelessness: Adjustments To Student Exceptionalism In Bankruptcy Law, Jordan Higham, Jenica Bunderson Apr 2021

A Certainty Of Hopelessness: Adjustments To Student Exceptionalism In Bankruptcy Law, Jordan Higham, Jenica Bunderson

Brigham Young University Prelaw Review

For over forty years, student exceptionalism has been a crucial doctrine of U.S. bankruptcy law, stating that student debt can only be discharged in bankruptcy under extraordinary circumstances of undue hardship. This practice has been essential for the survival of the federal student loan program, however, the high and unclear standards for what constitutes undue hardship makes it almost impossible for even the most deserving debtors to discharge student debt. This paper explores the history of student exceptionalism and makes proposals for how to balance fairness between debtor and creditor.


It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder Apr 2021

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The ...


Creditors, Keepers: Passive Retention Of Estate Property And The Automatic Stay, Caitlin M. Mcauliffe Apr 2021

Creditors, Keepers: Passive Retention Of Estate Property And The Automatic Stay, Caitlin M. Mcauliffe

Vanderbilt Law Review

The automatic stay provision is one of the most important provisions in the Bankruptcy Code. Until recently, however, it has remained unclear if passive retention of property of the bankruptcy estate must be immediately turned over to the debtor under the automatic stay provision. The Supreme Court decided in City of Chicago v. Fulton that passive retention does not violate the automatic stay, saving creditors from the consequences of retaining estate property. The debate about the stay, however, is far from over. Many circuit courts were already concerned about the policy issues deriving from the City of Chicago maintaining possession ...


The Conflict Between Territorial And Universal Of Bankruptcy Orders, Abed Al-Monim Shawkat Zamzam Mar 2021

The Conflict Between Territorial And Universal Of Bankruptcy Orders, Abed Al-Monim Shawkat Zamzam

Journal Sharia and Law

The financial crisis has affected investment projects all over the world. One of its repercussions was the bankruptcy of many multi-national companies. Law jurisprudence has split over the scope of recognition of bankruptcy orders issued in a foreign country. Some jurisprudence embraced the territoriality theory with regards to bankruptcy orders, so that such order does not have any legal effect in the territories other than the one in which it was issued. Others opine for the universality of the bankruptcy orders since the debtor has one patrimony, which should include all his rights and obligations. This article intends to study ...


Corporate Bankruptcy Requirements & Impacts “Under The Egyptian Law, Belal A. Badawy Feb 2021

Corporate Bankruptcy Requirements & Impacts “Under The Egyptian Law, Belal A. Badawy

Journal Sharia and Law

The term “Merchant” does not only make reference to a natural person, but can also mean a moral person and, more precisely, corporations. As firms acquire commercial capacity, they become subject to the same legal regulations governing individual merchants. They can then be declared bankrupt just at the moment that they stop paying their commercial debts.

While much emphasis has been placed on the provisions of bankruptcy generally in jurisprudence and legislation, the bankruptcy provisions of corporations are somehow overlooked, although such provisions are those which should have been given due attention, for two reasons:

First, the role of a ...


Protection Of The Rights Of The Creditors And The Debtor In The Process Of Financial Reorganization And Structuring Of Troubled Companies: A Comparative Study On The 2016 Uae Bankruptcy Law, French And American Legislations, Alaa Khasawneh Jan 2021

Protection Of The Rights Of The Creditors And The Debtor In The Process Of Financial Reorganization And Structuring Of Troubled Companies: A Comparative Study On The 2016 Uae Bankruptcy Law, French And American Legislations, Alaa Khasawneh

Journal Sharia and Law

This study deals with the protection of creditors and the debtor in accordance with the methods of saving and assisting troubled companies approved by the UAE Act of bankruptcy of 2016, as the legislator of the UAE in this law aimed to solve the difficulties faced by troubled companies and to protect them from bankruptcy and its negative consequences, This means raises problems about the extent of the protection afforded to the creditors compared to that afforded to the interests of the debtor, where legislator treated it with special care and subjected to special procedures differ from bankruptcy proceedings, and ...


“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii Jan 2021

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and ...


Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq. Jan 2021

Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq.

Touro Law Review

No abstract provided.


Equitable Subordination Redux? Section 183 Of The Bankruptcy And Insolvency Act And Respecting The 'Legislative Will' Of Parliament, Thomas G. W. Telfer Jan 2021

Equitable Subordination Redux? Section 183 Of The Bankruptcy And Insolvency Act And Respecting The 'Legislative Will' Of Parliament, Thomas G. W. Telfer

Law Publications

The Supreme Court of Canada has yet to rule on whether the American doctrine of equitable subordination is part of Canadian law. In Re US Steel, the Ontario Court of Appeal suggested in obiter that section 183 of the Bankruptcy and Insolvency Act (BIA) conferred upon courts the power to equitably subordinate a claim. This article focuses on the specific point of whether section 183 of the BIA provides the court jurisdiction in equity to subordinate a claim and alter the statutory priority scheme. Equitable jurisdiction found in section 183 of the BIA does not represent a broad power to ...


Policy Considerations Regarding Student Loan Debt And Higher Education, Todd R. Niemczyk Esq. Jan 2021

Policy Considerations Regarding Student Loan Debt And Higher Education, Todd R. Niemczyk Esq.

UNF Graduate Theses and Dissertations

Within the last 30 years, the policy considerations regarding student loan debt and higher education have become a series of strong opinions, heated debate, and partisan politics. Key stakeholders including the United States Government, both for-profit and traditional higher- educations institutions, financial organizations, special interest groups, and students all have interests. More so, all branches of Government, the Legislative, Judicial, and Executive, are areas where policy is both born and challenged. Some are aligned, and some are competing such that crafting sound policy regarding the lending and management of student loan debt has created a difficult situation that may well ...


Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr. Jan 2021

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...


The Debtor’S Absolute Right To Dismiss A Chapter 13 Case, Jared Brady Jan 2021

The Debtor’S Absolute Right To Dismiss A Chapter 13 Case, Jared Brady

Bankruptcy Research Library

(Excerpt)

Under section 1307(b) of title 11 of the United States Code (the “Bankruptcy Code”), a debtor has an absolute right to dismiss a Chapter 13 bankruptcy case. A bankruptcy case may be voluntarily filed under any chapter so long as the individual is eligible to be a debtor under the chapter selected. Section 1307(b) requires the court, on request of the debtor, to dismiss a Chapter 13 case if the case has not already been converted from Chapter 7 or Chapter 11.

This memorandum addresses a debtor’s right to dismiss a Chapter 13 case in three ...


Enforcing Make Whole Premiums In Bankruptcy, Brian P. Campbell Jr. Jan 2021

Enforcing Make Whole Premiums In Bankruptcy, Brian P. Campbell Jr.

Bankruptcy Research Library

(Excerpt)

A debt instrument typically has two components: principal and interest. The lender usually has some expectation in receiving a certain amount of interest over the life of a loan. The borrower may in many instances reduce the amount of the interest paid by pre-paying the loan in full prior to maturity. In certain instances, a lender will protect its interest recovery by including a “make whole premium” (“MWP”) in the loan. When borrowings are either paid back early or are accelerated forward by a default, MWPs provide for the payment of an additional amount by the borrower to “compensate ...


Section 1112(B) Of The Bankruptcy Code Allows A Bankruptcy Court To Dismiss A Case Filed In Bad Faith, Antonio Sciarrotta Jan 2021

Section 1112(B) Of The Bankruptcy Code Allows A Bankruptcy Court To Dismiss A Case Filed In Bad Faith, Antonio Sciarrotta

Bankruptcy Research Library

(Excerpt)

The United States Bankruptcy Code (the “Bankruptcy Code”) offers a wide range of instances where a bankruptcy court can dismiss a case. Section 1112(b) of the Bankruptcy Code provides that “the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause . . . .” Section 1112(b)(4) lists different scenarios that constitute “for cause.” Although not explicitly within the statutory scheme, a requirement that the debtor files his bankruptcy petition in good faith is one manifestation ...


Do Parents Receive Reasonably Equivalent Value For Paying College Tuition For Their Children Making Such Payments Avoidable, Alexandria Stiteler Jan 2021

Do Parents Receive Reasonably Equivalent Value For Paying College Tuition For Their Children Making Such Payments Avoidable, Alexandria Stiteler

Bankruptcy Research Library

(Excerpt)

Under section 548 of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may avoid a transfer by a debtor that was an actual or constructive fraud. An actual fraudulent transfer is a transfer made with actual intent to hinder, delay, or defraud creditors. In general, a constructive fraudulent transfer is a transfer or the incurrence of an obligation by a debtor that was made within two years before the date of filing the bankruptcy petition, for less than reasonably equivalent value, at a time when the debtor was insolvent and could not pay its debts ...


The Debtor’S Conduct At The Time Of Filing Controls In Determining Whether A Debtor Is Eligible To Convert Their Existing Case To A Case Under Subchapter V Of The Bankruptcy Code, Eric Silverstein Jan 2021

The Debtor’S Conduct At The Time Of Filing Controls In Determining Whether A Debtor Is Eligible To Convert Their Existing Case To A Case Under Subchapter V Of The Bankruptcy Code, Eric Silverstein

Bankruptcy Research Library

(Excerpt)

Congress passed the Small Business Reorganization Act of 2019 (the “SBRA”) to give small businesses a better chance to successfully reorganize under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). One of the SBRA’s most important amendments was the addition of Subchapter V to Chapter 11 of the Bankruptcy Code, which was designed to reduce the cost and complexity of a small business reorganization. Because the statute’s express terms do not address its application to existing debtors, courts have been forced to address issues of conversion and eligibility. Generally, conversion of a ...


Two Approaches For Evaluating A Debtor’S “Additional Circumstance” Under The Brunner Test To Qualify For A Hardship Discharge Of Student Loan Debt, Julie Aberasturi Jan 2021

Two Approaches For Evaluating A Debtor’S “Additional Circumstance” Under The Brunner Test To Qualify For A Hardship Discharge Of Student Loan Debt, Julie Aberasturi

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), student loan debt is typically non-dischargeable in bankruptcy, except for circumstances in which the failure to discharge “would impose an undue hardship on the debtor and the debtor’s dependents.” However, the Bankruptcy Code does not define “undue hardship.” Instead, Congress “left it up to the various Bankruptcy Courts to utilize their discretion in defining what that term means after an analysis of the statute and a review of applicable legislative history.”

In determining what constitutes an “undue hardship,” a majority of courts rely on the three-prong Brunner ...


The Differing Standards To Obtain A Student Loan Debt Discharge, Nicholas Bonelli Jan 2021

The Differing Standards To Obtain A Student Loan Debt Discharge, Nicholas Bonelli

Bankruptcy Research Library

(Excerpt)

Discharging student loans in a bankruptcy case is often an uphill battle. Under section 523 of title 11 of the United States Code (the “Bankruptcy Code”), student loans are presumed nondischargeable. Thus, a discharge is generally unavailable for student loans “[u]nless excepting such debt from discharge . . . would impose an undue hardship on the debtor and the debtor's dependents.” To obtain a discharge, a debtor bears the burden of showing “undue hardship” by a preponderance of the evidence. In determining “undue hardship,” a majority of courts use the Brunner Test. A minority of courts use the more subjective ...


A Bankruptcy Court May Temporarily Suspend Rent Obligation, Matthew Kipnis Jan 2021

A Bankruptcy Court May Temporarily Suspend Rent Obligation, Matthew Kipnis

Bankruptcy Research Library

(Excerpt)

Section 365(d)(3) of title 11 of the United States Code (the “Bankruptcy Code”) authorizes a court to “extend, for cause, the time for performance of any [rent] obligation[‘s] [on unexpired leases of nonresidential real property] that arise[] within 60 days after the date of the order for relief[.]” Historically, courts have recognized that under § 365(d)(3), there is a statutory obligation on debtors to pay rent on unexpired leases. Courts have also recognized that if a debtor’s rent obligation is deferred, lessors are entitled to adequate protection. However, courts are divided on the exact ...


Did The Consolidated Appropriations Act Make Bankruptcy Debtors Eligible For Ppp Loans?, Mary Theresa Michalos Jan 2021

Did The Consolidated Appropriations Act Make Bankruptcy Debtors Eligible For Ppp Loans?, Mary Theresa Michalos

Bankruptcy Research Library

(Excerpt)

In response to the economic fallout of the global COVID-19 pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which makes government-guaranteed loans available to qualified small businesses through the Paycheck Protection Program (“PPP”). The PPP was not created as a standalone program but was added to the existing section 7(a) program, which subjects the PPP to existing conditions and regulations, as well as existing Small Business Administration (the “SBA”) authority. The CARES Act expressly gives the SBA “[e]mergency rulemaking authority” to “issue regulations” carrying out the PPP. And it provides that ...


Timing And Location Of Comi Determined At The Timing Of Filing Chapter 15 Petition, Priya Suresh Jan 2021

Timing And Location Of Comi Determined At The Timing Of Filing Chapter 15 Petition, Priya Suresh

Bankruptcy Research Library

(Excerpt)

A debtor’s center of main interest (“COMI”) is not defined under title of 11 of the United States Code (the “Bankruptcy Code”). As a result, bankruptcy courts have taken a number of different approaches to determining a debtor’s COMI. The starting place for determining COMI is the statutory rebuttable presumption that a debtor’s registered office, or habitual residence is the debtor’s COMI. If the presumption is rebutted, the party seeking recognition as a foreign main proceeding must prove by a preponderance of the evidence that the debtor's COMI is in the jurisdiction where the ...


City’S Retention Of Impounded Vehicle Not Violation Of Automatic Stay, Alexis Zobeideh Jan 2021

City’S Retention Of Impounded Vehicle Not Violation Of Automatic Stay, Alexis Zobeideh

Bankruptcy Research Library

(Excerpt)

Upon the filing of a petition under title 11 of the United States Code (the “Bankruptcy Code”), creditors and other parties in interest are generally automatically stayed from taking any action against a debtor or property of the estate. The estate includes “all legal or equitable interests of the debtor in property as the commencement of the case,” with some exceptions. The automatic stay is “one of the most important protections and powerful tools available to a debtor in a bankruptcy.”

It is well established that a creditor cannot take affirmative steps against a debtor or estate property. Prior ...