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Full-Text Articles in Law

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen Jan 2024

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …


Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff Apr 2022

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …


House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki Mar 2014

House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki

Michigan Law Review

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-to-one split of circuits in favor of the minority view …


A New Approach To Section 363(F)3, Evan F. Rosen Jun 2011

A New Approach To Section 363(F)3, Evan F. Rosen

Michigan Law Review

Section 363(f) of the Bankruptcy Code provides five circumstances in which a debtor may be permitted to sell property free of all claims and interests, outside of the ordinary course of business, and prior to plan confirmation. One of those five circumstances is contained in § 363(f)(3), which permits such a sale where the "interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property." While it is far from certain whether § 363(f)(3) requires a price "greater than the aggregate [face value] of …


Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel Apr 2000

Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel

Vanderbilt Law Review

Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.

This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy …


The New Textualism And The Rule Of Law Subtext In The Supreme Court's Bankruptcy Jurisprudence, Alan Schwartz Jan 2000

The New Textualism And The Rule Of Law Subtext In The Supreme Court's Bankruptcy Jurisprudence, Alan Schwartz

NYLS Law Review

The Supreme Court is thought to use a method of statutory interpretation called "the new textualism" when construing Federal Statutes, including the Bankruptcy Code. The new textualism, in brief, ties interpreters more closely to the text than more traditional interpretative methods. This Essay inquires into the justifications for the new textualism, but its primary goal is to argue that the Court prefers an important justification of this interpretative method to the method itself. The justification holds that interpretation should advance the rule of law virtues of certainty and predictability. A court that is committed to the new textualism would construe …


Avoiding Liens Under The New Bankruptcy Code: Construction And Application Of Section 522(F), Judy Toyer Apr 1982

Avoiding Liens Under The New Bankruptcy Code: Construction And Application Of Section 522(F), Judy Toyer

University of Michigan Journal of Law Reform

This Note argues that strict construction of section 522(f)(2) is most consistent with congressional intent. Part I discusses the congressional rationale behind lien avoidance. Part II examines present efforts to apply section 522(f)(2), and concludes that judicial interpretation to date has proved largely inadequate. Finally, Part III proposes new judicial guidelines and statutory amendments designed to standardize application of the lien avoidance provision in a manner consistent with the congressional intent behind the Reform Act.


Filing For Personal Bankruptcy: Adoption Of A "Bona Fide Effort" Test Under Chapter 13, Stephan M. Vidmar Jan 1981

Filing For Personal Bankruptcy: Adoption Of A "Bona Fide Effort" Test Under Chapter 13, Stephan M. Vidmar

University of Michigan Journal of Law Reform

Part I discusses the history and current application of the Chapter 13 wage earner relief provisions, focusing on the present "good faith" controversy. Part II analyzes the "bona fide effort" test and examines its current congressional status. Part III suggests that more specific statutory guidance is necessary in order to effectively apply the "bona fide effort" test and recommends specific guidelines for its use. The article concludes that by following such a set of standard guidelines when applying the "bona fide effort" test, bankruptcy courts would promote uniform treatment of debtors, enhance judicial economy, and facilitate appellate review of Chapter …