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Bapcpa And Commercial Credit: Who (Sic) Do You Trust, David G. Epstein
Bapcpa And Commercial Credit: Who (Sic) Do You Trust, David G. Epstein
Law Faculty Publications
Trying to understand and apply the many different provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) has caused people to yearn for the "good old days." At the National Conference of Bankruptcy Judges' (NCBJ) Annual Meeting in San Antonio in October 2005, there was a lot of talk about the "good old days" and some singing "'bout the good old days" at the NCBJ "Final Night Dinner" by a larger than life (at least as large as Sally Struthers), Wynonna Judd. And this has caused me to remember a daytime television show from my good …
National Bankruptcy Review Commission's Section 365 Recommendations And The Larger Conceptual Issues, David G. Epstein
National Bankruptcy Review Commission's Section 365 Recommendations And The Larger Conceptual Issues, David G. Epstein
Law Faculty Publications
In the chapter of the Report of the National Bankruptcy Commission ("Report") entitled "Business Bankruptcy," the National Bankruptcy Review Commission ("Review Commission") makes four recommendations regarding section 365 of the Bankruptcy Code: 2.4.1 Clarifying the Meaning of "Rejection" The concept of "rejection" in section 365 should be replaced with "election to breach." Section 365 should provide that a trustee's ability to elect to breach a contract of the debtor is not an avoiding power. Section 502(g) should be amended to provide that a claim arising from the election to breach shall be allowed or disallowed the same as if such …
Resolving Still Unresolved Issues Of Bankruptcy Law: A Fence Or An Ambulance, David G. Epstein
Resolving Still Unresolved Issues Of Bankruptcy Law: A Fence Or An Ambulance, David G. Epstein
Law Faculty Publications
Congress established a Bankruptcy Review Commission ("'Commission") when it enacted the Bankruptcy Reform Act of 1994. Although the Commission is empowered to review the Bankruptcy Code and make recommendations based upon its findings and conclusions, its focus is directed toward making suggestions that do not disturb the fundamental principles and balance of current law. Instead, the stated purposes of the Commission are: ( 1) to investigate and study issues and problems relating to title 11, United States Code (commonly known as the "'Bankruptcy Code"); (2) to evaluate the advisability of proposals and current arrangements with respect to such issues and …
Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein
Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein
Law Faculty Publications
If the priorities provided by section 364(c) are insufficient to entice potential lenders to provide sufficient :financing to a Chapter 11 debtor, the debtor may, with the court's approval, obtain credit by granting the lender a lien on property of the debtor that is senior to existing liens on such property (a "priming lien"). The granting of such a priming lien, however, is subject to several statutory conditions. First, as with section 364(c), the debtor must prove that it cannot obtain credit on any less intrusive basis (i.e., through the use of section 364(a), (b), or (c)). Second, the debtor …
Chapters 11 And 13 Of The Bankruptcy Code--Observations On Using Case Authority From One Of The Chapters In Proceedings Under The Other, David G. Epstein
Chapters 11 And 13 Of The Bankruptcy Code--Observations On Using Case Authority From One Of The Chapters In Proceedings Under The Other, David G. Epstein
Law Faculty Publications
This Article will focus on the relationship between Chapter 11 and Chapter 13 of the Bankruptcy Code. A number of issues are similar or identical in Chapter 11 and Chapter 13. Furthermore, much of the language of Chapter 13 mirrors that of Chapter 11. This Article explores whether courts should apply case law and concepts of one chapter when similar issues arise in proceedings under the other chapter. Parts II and III of this Article address basic similarities and differences between Chapters 11 and 13. Parts IV, V, and VI examine three issues governed by statutory language common to both …