Law Commons^™

Mediating Disputes Arising Out Of Troubled Companies - Do It Sooner Rather Than Later, The Hon. Randall J. Newsome

Golden Gate University Law Review

Over the last several years, there has been much academic debate on the subject of “vanishing trials”—whether the settlement rate in bankruptcy and other courts is accelerating, and whether that is a healthy trend for our justice system. A more interesting question is why disputes in chapter 11 cases are not resolved sooner. Why does it take so much time and so much money for parties to settle their differences and arrive at a consensual chapter 11 plan?

Cite as 42 Golden Gate U. L. Rev. 661 (2012).

Obtaining The Release Of Grand Jury Evidence In Ponzi Cases, The Hon. Steven Rhodes

Golden Gate University Law Review

Evidence that law enforcement authorities obtain through the grand jury process is generally secret. Nevertheless, case law can provide a powerful basis for a trustee, a receiver or any party in a Ponzi case to obtain evidence that the government has in its possession as a result of its investigation of a Ponzi scheme. This Article considers the extent to which parties in a Ponzi scheme insolvency proceeding might be able to obtain evidence presented in a criminal grand jury proceeding relating to the Ponzi scheme.

Cite as 42 Golden Gate U. L. Rev.657 (2012).

Black Swans, Ostriches, And Ponzi Schemes, Nancy B. Rapoport

Golden Gate University Law Review

Cite as 42 Golden Gate U. L. Rev. 627 (2012).

Handling Claims In Ponzi Scheme Bankruptcy And Receivership Cases, Kathy Bazoian Phelps

Golden Gate University Law Review

The end game for defrauded investors and other creditors in a Ponzi scheme case is the recovery of the maximum amount on their claims. Depending on whether the Ponzi perpetrator has landed in a bankruptcy case or a receivership proceeding, the rules governing the allowance and distribution priorities for claims filed in Ponzi scheme cases may vary. This Article discusses the treatment of the defrauded investor’s claim in both bankruptcy and receivership cases. This Article also contrasts relatively rigid provisions in the Bankruptcy Code for the allowance, priority and distribution of claims in Ponzi scheme cases with the more flexible …

Friction In Reconciling Criminal Forfeiture And Bankruptcy: The Criminal Forfeiture Part, Sarah N. Welling, Jane Lyle Hord

Golden Gate University Law Review

The federal government uses two general types of asset forfeiture, criminal and civil. This Article addresses criminal forfeiture, which allows the government to take property from defendants when they are convicted of crimes. It is “an aspect of punishment imposed following conviction of a substantive criminal offense.” The goal of this Article is to give an overview of the forfeiture process, specifically in relation to claims victims and creditors might assert as third-party claimants.

Cite as 42 Golden Gate U. L. Rev. 551 (2012).

Debt And Crime: Inevitable Bedfellows, Karen Gebbia

Golden Gate University Law Review

Criminal law and bankruptcy law approach fraud with a variety of objectives, only some of which overlap. Each contains elements of both restorative and distributive justice—the notion that the fraudster should be held accountable, the injured should be compensated, and distribution should be fair. Yet, criminal law and bankruptcy law inculcate these goals with profoundly different understandings, histories, contexts and practices. Consequently, the long arm of the law and the strong arm of the trustee have uniquely honed tools, unavailable to the other, for achieving their purposes. Inevitably, then, tension arises when criminal law and bankruptcy law simultaneously attempt to …

Cleaning The Mess Of The Means Test: The Need For A Case-By-Case Analysis Of 401(K) Loans In Chapter 7 Bankruptcy Petitions, Luke Welmerink

Golden Gate University Law Review

This Comment examines the relevant case law regarding Chapter 7 petitions and the policy implications of not considering 401(k) loan repayment a necessary expense. Section II provides an overview of the treatment of 401(k) loans in bankruptcy, as well as a more detailed review of means testing and an analysis of Other Necessary Expenses. Section III argues that courts should look to the facts and circumstances surrounding petitions to determine whether 401(k) loan repayments can be deducted as necessary expenses, and that doing so will not affect the ability of courts to properly dismiss abusive petitions under a totality-of-the-circumstances analysis. …

Bankruptcy Law - Bfp V. Imperial Savings And Loan Association: Resolving The "Reasonably Equivalent Value" Standard In Avoiding Foreclosure Sales, Kevin F. Kilty

Golden Gate University Law Review

No abstract provided.

Environmental Law - In Re Jensen: Determining When A Bankruptcy Claim Arises In The Context Of Environmental Liability, Myron A. Eng

Golden Gate University Law Review

No abstract provided.

Bankruptcy Law - In Re Mitchell: Standards Of Valuation In Chapter 13 Proceedings Under 11 U.S.C. § 506(A), Edwin S. Clark

Golden Gate University Law Review

In re Mitchel marks the first examination by a circuit court of valuation standards used in Chapter 13 proceedings to establish the value of a creditor's secured claim in a vehicle. In Mitchell, the Ninth Circuit held that the standard to be applied in most cases is a vehicle's wholesale values and that any other standard, such as retail value, should be applied only where the debtor uses a vehicle as part of a going concern. This note will show that the Mitchell majority arrived at its rule by grounding its analysis in well-settled bankruptcy philosophy& and by strictly construing …

Bankruptcy Law, Charlene R. Ingersoll

Golden Gate University Law Review

No abstract provided.

Calculating Exemptions In Bankruptcy: All Points Capital Corp. V Meyer, Roger Bernhardt

Publications

This article discusses a bankruptcy case involving 11USC §522(f)’s formula for avoiding judgment liens on properties in which the debtor holds only a partial interest.

Landlords Draws Upon Letters Of Credit In Bankruptcy: Redback Networks V Mayan Networks, 2004, Roger Bernhardt

Publications

This article discusses a California case where a landlord was entitled to fully draw down on a tenant’s letter of credit that was smaller than its rent claim and also smaller than a year’s rent.

Escrow Agent’S Duty Of Care To Nonparties: Summit Fin. Holdings V Continental Lawyers Title, (2001), Roger Bernhardt

Publications

This article discusses a California case which held that an escrow holder that who the principals’ escrow instructions owes no duty of care to nonparties to the escrow.

Postponement And Reinstatement Of Trustee Sales: Hicks V E.T. Legg, 2001, Roger Bernhardt

Publications

This article discusses a California case dealing with lender postponement and reinstatement issues prior to a foreclosure sale.

Antideficiency Rule Sanctions: In Re Prestige Ltd. Partnership-Concord, 2000, Roger Bernhardt

Publications

This article discusses a decision which held that a secured creditor who sues a debtor’s guarantor instead of foreclosing on security loses its security interest but may still recover the underlying debt in California.

Community Property Reimbursement, Roger Bernhardt

Publications

This article discusses how California community property rules intersect with dissolution and bankruptcy claims, dealing with the effect of a couple making the down payment with funds from one of the spouse’s parents.

Consumer Bankruptcy: A Roundtable Discussion, Janice E. Kosel

Publications

No abstract provided.

Limitations On Use Of The California Homestead Exemption In Bankruptcy Cases: The Case For Following In Re Pladson, Leslie Burton, Jeffrey C. Wurms

Publications

Two decisions, a 1991 California Court of Appeal decision, Spencer v. Lowery, and a 1993 United States District Court for the Northern District of California decision, In re Pladson, severely restricted the homestead exemption available in bankruptcy cases filed in California. Some bankruptcy courts have refused to follow the Spencer and Pladson cases and the California Legislature has passed new legislation on the use of the homestead exemption in bankruptcy. This article will explore the background and rationale of the decisions and the legislative scheme, and offer support for limiting the Homestead exemption in bankruptcy cases.