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Articles 31 - 58 of 58
Full-Text Articles in Bankruptcy Law
Resolving The Public Pension "Crisis", Jack M. Beermann
Resolving The Public Pension "Crisis", Jack M. Beermann
Fordham Urban Law Journal
No abstract provided.
Modifying Or Terminating Pension Plans Through Chapter 9 Bankruptcies With A Focus On California, Joanne Lau
Modifying Or Terminating Pension Plans Through Chapter 9 Bankruptcies With A Focus On California, Joanne Lau
Fordham Urban Law Journal
No abstract provided.
Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown
Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown
Fordham Law Review
Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their citizens. Should sovereigns be obligated to pay these debts? Were the debts really incurred by the sovereign or were they incurred by the governing regime in question? What if the lender knew in advance what the proceeds would be used for? …
The Bankruptcy Abuse Prevention And Consumer Protection Act: An Empirical Examination Of The Act's Business Bankruptcy Effects, Foteini Teloni
The Bankruptcy Abuse Prevention And Consumer Protection Act: An Empirical Examination Of The Act's Business Bankruptcy Effects, Foteini Teloni
SJD Dissertations
This paper uses a multivariate logistic regression model to examine empirically and quantify for the first time the effect of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) on the Chapter 11 landscape. Two samples are tested: a general sample consisting of firms from various corporate sectors, and a sample consisting only of retailers. Both studies show that the 2005 amendments had a statistically significant effect on traditional Chapter 11 practice. In particular, post-BAPCPA we observe a rise in rapid dispositions through the form of a sale of all or substantially all debtor assets. Indeed, in the post-amendments era, …
Chapter 11 Duration, Preplanned Cases, And Refiling Rates: An Empirical Analysis In The Post-Bapcpa Era, Foteini Teloni
Chapter 11 Duration, Preplanned Cases, And Refiling Rates: An Empirical Analysis In The Post-Bapcpa Era, Foteini Teloni
SJD Dissertations
This article empirically examines and quantifies the effect of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on three distinct aspects of the Chapter 11 process: a) the duration of traditional Chapter 11 cases; b) the use of prepackaged and prenegotiated bankruptcies; and c) debtor refiling rates. The sample studied consists of companies with more than $100 million in assets that both filed for and exited Chapter 11 between 1997 and 2014. BAPCPA is found to be associated with shorter Chapter 11 case duration, and an increased use of prepackaged and prenegotiated bankruptcies. Additionally, BAPCPA is found to be …
Preserving Value In The Post-Bapcpa Era — An Empirical Study, Foteini Teloni
Preserving Value In The Post-Bapcpa Era — An Empirical Study, Foteini Teloni
SJD Dissertations
Through the use of a multivariate regression model, this article studies the effect on debtor reorganization values of the shortened reorganization timeframe imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). The study shows that BAPCPA is positively correlated at a statistically significant level with higher reorganization recoveries. This result is attributed to the increased proportion of prepackaged and prenegotiated bankruptcies observed in the post-2005 era, as these “fast-track” bankruptcy cases entail lower costs and better preserve the firm’s value.
Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch
Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch
Fordham Law Review
Municipal bankruptcies have been making national news since the “Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson County gained notoriety for the record scale of their bankruptcy filings, only to be surpassed by Detroit shortly thereafter as the largest and most populous municipal bankruptcy filing. Historically, municipal bankruptcy occurred infrequently, leaving the nuances of many critical issues, including insolvency, asset utilization, and good faith, unexplored in case law. For example, how should a bankruptcy court analyze Detroit’s cityowned art museum that houses billions of dollars of art when bondholders, pensioners, and other unsecured creditors have unpaid claims? And how should …
Restructuring A Sovereign Bond Pari Passu Work-Around: Can Holdout Creditors Ever Have Equal Treatment?, Natalie A. Turchi
Restructuring A Sovereign Bond Pari Passu Work-Around: Can Holdout Creditors Ever Have Equal Treatment?, Natalie A. Turchi
Fordham Law Review
The rise of vulture fund investing in sovereign bonds has created additional hurdles to successful restructuring in an already fragile ad hoc process. Recent litigation in NML Capital, Ltd. v. Argentina has proven courts’ willingness to utilize powers of equity to enforce a ratable payment interpretation of the pari passu clause—the equal treatment provision commonly found in sovereign bond contracts—creating much uncertainty on how the ruling will affect future restructuring efforts. By looking to the tension in interpretations of the pari passu clause, discrepancies in remedial relief awarded, and international institutions’ proposed solutions, this Note analyzes the role of the …
Clearinghouses As Liquidity Partitioning, Richard Squire
Clearinghouses As Liquidity Partitioning, Richard Squire
Faculty Scholarship
To reduce the risk of another financial crisis, the Dodd-Frank Act requires that trading in certain derivatives be backed by clearinghouses. Critics mount two main objections: a clearinghouse shifts risk instead of reducing it; and a clearinghouse could fail, requiring a bailout. This Article’s observation that clearinghouses engage in liquidity partitioning answers both. Liquidity partitioning means that when one of its member firms becomes bankrupt, a clearinghouse keeps a portion of the firm’s most liquid assets, and a matching portion of its short-term debt, out of the bankruptcy estate. The clearinghouse then applies the first toward immediate repayment of the …
New Formalism In The Aftermath Of The Housing Crisis, Nestor M. Davidson
New Formalism In The Aftermath Of The Housing Crisis, Nestor M. Davidson
Faculty Scholarship
The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and …
What We “Know” About Chapter 11 Cost Is Wrong, Stephen J. Lubben
What We “Know” About Chapter 11 Cost Is Wrong, Stephen J. Lubben
Fordham Journal of Corporate & Financial Law
Among the collective wisdom about large corporate bankruptcy cases, the following points are almost undisputed: Longer chapter 11 cases cost more; prepackaged chapter 11 cases cost less; cases filed in New York or Delaware cost more; and fee examiners control the costs of big chapter 11 cases. But each of these points is wrong, and in most cases entirely backward. This Article provides empirical evidence to show why. Ultimately, I argue that the complexity of the bankruptcy and the compensation structure of the professionals retained (which may itself reflect further aspects of complexity) are the key determinants of cost. The …
The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Melissa B. Jacoby
The Legal Infrastructure Of Ex Post Consumer Debtor Protections, Melissa B. Jacoby
Fordham Urban Law Journal
This article reviews the legal infrastructure of tools that protect debtors’ assets or income, or that enable debtors to resolve secured credit problems during ordinary times (e.g., not specific crisis interventions). Part I divides consumer protection tools into functional categories: protection of assets and future income, and retention of property subject to a security interest in default. Part II identifies the location of similar tools in federal law, uniform state law, and non-uniform state law. Part III examines implications of this divided system, with a special focus on the bundling of debtor protections and the role of intermediaries. This discussion …
Financial Stability Is A Volume Business: A Comment On 'The Legal Infrastructure Of Ex Post Consumer Debtor Protections', Anna Gelpern
Financial Stability Is A Volume Business: A Comment On 'The Legal Infrastructure Of Ex Post Consumer Debtor Protections', Anna Gelpern
Fordham Urban Law Journal
In this response to Professor Melissa B. Jacoby's "The Legal Infrastructure of Ex Post Consumer Debtor Protections," the author expands the scope of the household debt discussion beyond the consumer level and examines the effect that a fragmented infrastructure for legal service delivery can have on financial stability nationwide.
Nondebtor Releases In Chapter 11 Reorganizations: A Limited Power, Elizabeth Gamble
Nondebtor Releases In Chapter 11 Reorganizations: A Limited Power, Elizabeth Gamble
Fordham Urban Law Journal
This note concerns the ability of bankrupt companies to file Chapter 11 reorganization plans that contain provisions releasing the liabilities of parties other than the companies themselves. One such mechanism, used in conjunction with the 2010 BP oil spill in the Gulf of Mexico, is a trust releasing a financially-troubled company from liability to certain types of tort claimants. The author argues that although bankruptcy courts do have the power to approve such plans, such power should be carefully limited when companies seek to grant releases to insiders and insurance companies.
Strategic Liability In The Corporate Group , Richard Squire
Strategic Liability In The Corporate Group , Richard Squire
Faculty Scholarship
The typical large corporation divides itself into numerous subsidiaries but then overrides the liability barriers between them by having the subsidiaries and the parent company cross-guarantee each other's major debts. Previous scholarly theories of the corporate group cannot explain why. The leading theory posits that the subsidiaries make it easier for creditors to evaluate risk because they enable each creditor to lend against a discrete asset pool within the broader enterprise. But any such efficiency would be undercut by the guarantees, which transmit credit risk across subsidiary boundaries. This Article argues that the combination of subsidiaries and intragroup guarantees reflects …
Bankruptcy’S Protection For Non-Debtors From Securities Fraud Litigation, John M. M. Wunderlich
Bankruptcy’S Protection For Non-Debtors From Securities Fraud Litigation, John M. M. Wunderlich
Fordham Journal of Corporate & Financial Law
Given the recent economic climate, the judiciary faces an all too familiar challenge: navigate through the web that is bankruptcy and securities fraud. So far, bankruptcy has evolved into a tool to resolve mass tort litigation, like securities fraud. However, this Article explores bankruptcy as a tool to resolve securities litigation against non-debtors, those that never file for bankruptcy protection. The protection the Bankruptcy Code provides to non-debtors, like officers and directors, goes largely unnoticed, much to the detriment of securities fraud victims. Mindful that we now are in the midst of another financial crisis and that attention will slowly …
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon, Jesse W. W. Markham, Jr.
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon, Jesse W. W. Markham, Jr.
Fordham Journal of Corporate & Financial Law
This article examines whether, and the extent to which, antitrust law could contribute to a broader regulatory effort to control the too-big-to-fail problem. The article begins by exploring the nature of the problem. Against this backdrop, it considers antitrust policy and rules to evaluate whether antitrust might play a meaningful role. The article concludes that antitrust law, if vigorously enforced with an emphasis on avoiding too-big-to-fail problems, can be a useful public policy tool to address the problem. However, it can come nowhere near solving it or preventing recurrences of recent systemic failures.
The Case For Symmetry In Creditors' Rights, Richard Squire
The Case For Symmetry In Creditors' Rights, Richard Squire
Faculty Scholarship
Using an original framework for evaluating bankruptcy rules, this article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor's assets. Such arrangements, which I classify as asymmetrical, are widely used in the modem economy, and include the secured loan, American general partnership, and guaranty contract. In contrast, symmetrical arrangements, which include the corporation and common law partnership, confer no absolute advantage, because they give each creditor group a prior claim to a distinct debtor asset pool. I demonstrate that symmetrical arrangements produce lower debt appraisal costs, …
How The Old World Encountered The New One: Regulatory Competition And Cooperation In European Corporate And Bankruptcy Law , Luca Enriques, Martin Gelter
How The Old World Encountered The New One: Regulatory Competition And Cooperation In European Corporate And Bankruptcy Law , Luca Enriques, Martin Gelter
Faculty Scholarship
The European framework for creditor protection has undergone a remarkable tansfomation in recent years. While the European Court of Justices Centros case and its progeny have given European Union businesses choice with respect to the state of incorporation, and hence to the substantive corporate law regime, the European Insolvency Regulation has introduced uniform conflict-of-law rules for insolvencies. However, this regime has opened up some forum shopping opportunities for corporate debtors. Both regulatory competition in corporate law and forum shopping in bankruptcy law have been discussed in the United States for years, while they are relativey new territory in the European …
The Community Reinvestment Act: New Standards Provide New Hope, E. L. Baldinucci
The Community Reinvestment Act: New Standards Provide New Hope, E. L. Baldinucci
Fordham Urban Law Journal
This Comment chronicles the Community Reinvestment Act from its adoption to its present status, including its revision under the Financial Institutions Reform Recovery and Enforcement Act of 1989 (FIRREA). It reviews the major criticisms of the CRA's supporters and detractors. It introduces the recent regulations issued by the regulatory agencies responsible for enforcing the CRA and the Congressional response to those regulations. It concludes that the CRA can be a more effective legislative response to the lack of banking services in poorer inner city communities if the recent agencies' regulations are allowed to take effect and if careful steps are …
What Do You Mean My Partnership Has Been Petitioned Into Bankruptcy?, Karen E. Blaney
What Do You Mean My Partnership Has Been Petitioned Into Bankruptcy?, Karen E. Blaney
Fordham Urban Law Journal
Bankruptcy law regarding partnerships differs from the law pertaining to individuals and corporations. Only a partnership can be involuntarily petitioned into bankruptcy by individuals within the organization. Involuntary petitions can be used by general partners as bargaining chips, and may encourage partners who can personally benefit from filing to do so, even if the act would be detrimental to the partnership. Under present bankruptcy law, an involuntary petition may be commenced against a partnership by fewer than all of the general partners in such partnership. In comparison to prior bankruptcy provisions governing a partner's involuntary petition against the partnership, the …
"Consecutive" Chapter 11 Filings: Use Or Abuse?, Jonathan Moss
"Consecutive" Chapter 11 Filings: Use Or Abuse?, Jonathan Moss
Fordham Urban Law Journal
This Note argues that bankrtupcy courts should apply a good faith standard that imposes a higher level of scrutiny before permitting a debtor to proceed with a second filing and plan. This Note proceeds to analyze the good faith standards for consecutive Chapter 11 petitions established in different jurisdictions. This Note then proceeds to explore the threat consecutive provisions pose to the Bankruptcy Code's lease and executory contract provisions. This Note then analyzes how consecutive filings can undermine the Code's basic creditor protections, and concludes that courts should apply a rigorous good faith standard consistent with recent decisions from the …
Securities Law Disclosure Requirements For The Political Subdivision Threatened With Bankruptcy, Robert A. Fippinger
Securities Law Disclosure Requirements For The Political Subdivision Threatened With Bankruptcy, Robert A. Fippinger
Fordham Urban Law Journal
Under what circumstances does a company violate the anti-fraud provisions of the Securities Act of 1933 or the Securities Exchange Act of 1934? This article provides an illustration of the disclosure requirements under these acts, with the municipal debt adjustment procedures of the Bankruptcy Code. The article is divided into three parts. First, it summarizes the application of federal securities law to public finance: the laws pertaining to state and political subdivision issuance of securities. The second portion highlights specific problems under Chapter 9 of the Bankruptcy Code. In this section, the author discusses specific circumstances that may likely raise …
Cy Pres Powers Of The Federal Bankruptcy Courts - New Hope For Financially Distressed Charities?, George B. Reese
Cy Pres Powers Of The Federal Bankruptcy Courts - New Hope For Financially Distressed Charities?, George B. Reese
Fordham Urban Law Journal
During times of economic turmoil, certain private charitable institutions operating in urban areas often face financial problems. In the past, these institutions - hospitals, community service centers, and the like - were partially reimbursed by government welfare funds for their "public services" expenditures. But as the pressures on municipal budgets have increased, these reimbursements become delayed, and sometimes uncertain. A charitable corporation contemplating a petition in bankruptcy might wish to seek cy pres relief from the bankruptcy court. Cy pres, a common feature of state law, provides that a gift in trust or otherwise which is determined to have been …
Note: Secured Creditors In Wage Earner Proceedings: Interpreting The Validity Of Bankruptcy Rule 13-307(D), Jane E. Finkel
Note: Secured Creditors In Wage Earner Proceedings: Interpreting The Validity Of Bankruptcy Rule 13-307(D), Jane E. Finkel
Fordham Urban Law Journal
On October 1, 1973 the Supreme Court promulgated rules prescribing the practice and procedure to be followed in cases and proceedings governed by Chapters I-VII and Chapter XIII of the Bankruptcy Act. The procedural changes are extensive, permeating every stage of straight bankruptcy and Chapter XIII Wage Earner proceedings. One of the more important rules is Bankruptcy Rule 13-307(d), which deals with claims of secured creditors in Wage Earner proceedings under Chapter XIII. Secured creditors have challenged the validity of Rule 13-307(d), claiming that the rule modifies the secured party's substantive right to full recovery of the contract price. Thus, …
Baankruptcy-Usury-Plaintiff's Claim For Compound Interest Ruled Usurious; Simple Interest Disallowed To Give Effect To State's Deterrence Policy, Gerald Bohm
Fordham Urban Law Journal
Usury is the charging of interest for the use of money as a rate in excess of that permitted by statute. The Bankruptcy Act allows the trustee-in-bankruptcy to plead the defense of usury to a creditor's claim. A debtor-in-possession in a Chapter XI proceeding, who has all the rights and powers of the trustee, may also assert the defense of usury. There is, however, no federal usury statute and the Bankruptcy Act defines neither usury nor its effect. To resolve the usury issue the bankruptcy court has to look to the law of the jurisdiction in which the loan arose. …
Municipal Bankruptcy Under The 1976 Amendments To Chapter Ix Of The Bankruptcy Act, Kenneth W. Bond
Municipal Bankruptcy Under The 1976 Amendments To Chapter Ix Of The Bankruptcy Act, Kenneth W. Bond
Fordham Urban Law Journal
This articles examines the new Chapter IX of the Bankruptcy Act, particularly its effectiveness in providing insolvent or financially distressed municipalities with a simpler and more efficient method of obtaining financial relief. The articles discusses the differences under the new Chapter IX as compared to the old Chapter IX and argues that the new Chapter IX, although not designed to accomplish more than its predecessor, is a better tool for financially distressed municipalities because it simplifies the bankruptcy process while increasing the changes of a successful reorganization of debt.
Securities Arbitrations Involving Mortgage-Backed Securities And Collateralized Mortgage Obligations: Suitable For Unsuitability Claims?, Bradley J. Bondi
Securities Arbitrations Involving Mortgage-Backed Securities And Collateralized Mortgage Obligations: Suitable For Unsuitability Claims?, Bradley J. Bondi
Fordham Journal of Corporate & Financial Law
No abstract provided.