Bankruptcy Law Commons^™

Bankruptcy Law, E. Tate Crymes, Siena Berrios Gaddy, Victoria Barbino Grantham

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include: (1) Trustee’s avoidance powers under § 544(b) and waiver of sovereign immunity for state law claims; (2) priority of a claim and determination of whether the federal tax claim sounded in tort or contract; (3) subchapter V eligibility plan confirmation, stay relief, abstention, and bankruptcy court jurisdiction; (4) annulment of the automatic stay; (5) applicability of § 523(a) to corporate debtors in the context of a subchapter V bankruptcy case; (6) …

No More Monkeying Around: The Eleventh Circuit Deepens The Circuit Split On Corporate Discharge Under 11 U.S.C. § 1192, Cole Wright

Mercer Law Review

For small businesses facing financial disarray, the federal bankruptcy system offers a way to bounce back and get a second chance. However, not all mistakes can be forgiven, and some debts must be paid. As Congress adapts and expands the Bankruptcy Code, interpretive issues can arise, making it difficult for creditors and debtors to understand their options and outlook. In 2019, Congress attempted to create a more flexible and forgiving option for small businesses when they enacted the Small Business Reorganization Act (“SBRA”), which created Subchapter V of Chapter 11 of the Bankruptcy code. This subchapter has given rise to …

Bankruptcy Law, E. Tate Crymes, Siena Berrios Gaddy, Victoria Barbino Grantham

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include: (1) whether an insurer with financial responsibility for a bankruptcy claim is a “party in interest” under 11 U.S.C. § 1109; (2) appropriate remedies for a constitutional violation described in Siegel v. Fitzgerald; (3) whether the bankruptcy code authorizes a court to extinguish claims and potential claims without the consent of those affected or without martialing total assets for creditors; (4) finality of a contempt order; (5) revival under Rule 69(a) …

Bankruptcy Law, John T. Laney Iii, Siena Berrios Gaddy, Victoria Barbino Grantham

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include 11 U.S.C. § 523(a)(2)(A)’s preclusion of discharge of debts obtained by fraud of a partner or agent; the Supreme Court’s effort to “bring some discipline” to 11 U.S.C. § 363(m) and the use of the term “jurisdictional;” abrogation of tribal sovereign immunity in 11 U.S.C. § 106(a); Chapter 11 plan modification under 11 U.S.C. § 1126 and Bankruptcy Rule 3019(a); the anti‑modification provision of 11 U.S.C. § 1322(b)(2) and its connection …

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

Articles

It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.

These types of programs offer a dual benefit. They …

Building Tomorrow's Consumer Bankruptcy Lawyers, Ishaq Kundawala

Articles

The consumer bankruptcy bar is aging, with many seasoned practitioners nearing retirement. A recent article from the American Bar Association highlights that nearly 14% of lawyers in the United States are 65 or older. I think the percentage of older lawyers may be even higher in the consumer bankruptcy bar. Next time you attend a bankruptcy conference, do me a favor and look around you. I promise you will be shocked by the glaring absence of newer lawyers.

Bankruptcy, John T. Laney Iii, Thomas Alec Chappell, Siena Berrios Gaddy

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include constitutionality of the 2017 U.S. Trustee quarterly fee increase; statutory mootness under 11 U.S.C. § 363(m); retroactive application of § 505(a)(2)(C); exemption of traditional and Roth IRAs from a debtor’s bankruptcy estate; scope of “claim” under § 101(5); effect of post-petition transfers on the new value preference defense; scope of the fiduciary capacity exception from discharge of § 523(a)(4); and errors in debtor’s name in a financing statement.

Bankruptcy, John T. Laney Iii, Victoria Barbino Grantham

Mercer Law Review

Following the pandemic-related drop in bankruptcy filings during 2020, bankruptcy filings for both individuals and corporations continued to decline in 2021. Experts disagree about the cause of the decrease of filings during a period many believed would see a windfall. Some cite government stimulus programs for both individuals, and corporations, others low-lending rates which allowed companies to access capital more freely, and some believe court closures and backlogs have discouraged parties from formal judicial restructuring. No matter the cause, all experts expect filings to increase in 2022.

The United States Court of Appeals for the Eleventh Circuit issued several notable …

Biting The Bullet: A Bipartisan Solution To Increase Debtors' Access To Chapter 7 Relief While Exempting Firearms In A Bankruptcy Case, Ishaq Kundawala

Articles

Imagine an individual who is too broke to file for bankruptcy relief.' This irony is far too often a reality in America, especially for people living in underserved communities. Debtors are simply unable to skimp and save up even a thousand dollars to pay their bankruptcy attorney. Paying their bankruptcy attorney upfront in full is the only ticket to seeking Chapter 7 bankruptcy relief. For a variety of reasons, Chapter 7 bankruptcy relief is the most advantageous type for a majority of poor and middle-class individuals and families.4 It provides these individuals and families with an expedient, fresh financial start …

Bankruptcy, John T. Laney Iii, Victoria Barbarino Grantham

Mercer Law Review

This year’s Bankruptcy Law Article surveys include both notable cases and legislation that will have an impact on the practice of bankruptcy law in the United States Court of Appeals for the Eleventh Circuit. It will address one Supreme Court of the United States case argued in October 2020, which was decided early in 2021, and three Eleventh Circuit Court of Appeals cases decided in 2020. This Article will also include a follow up on the Small Business Reorganization Act of 2019 and a glimpse into the CARES Act, the most groundbreaking legislation of its kind, and its provisions that …

Bankruptcy, John T. Laney Iii, Nicholas Greer

Mercer Law Review

This year's Bankruptcy Law Article surveys both opinions and recent legislation that will have an impact on the practice of bankruptcy law in the United States Court of Appeals for the Eleventh Circuit. The decisions in this article come from the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, the United States District Courts located in the Eleventh Circuit, as well as the United States Bankruptcy Courts located in the Eleventh Circuit. Throughout the survey period, January 1, 2019 to December 31, 2019, countless decisions related to bankruptcy law have been handed …

Bankruptcy, John T. Laney Iii, William J. Diehl

Mercer Law Review

This Article surveys opinions decided in 2017 that will impact bankruptcy law practice in the Eleventh Circuit. These decisions come from the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, United States District Courts, and Bankruptcy Courts. While courts in the Eleventh Circuit have addressed other important questions pertinent to bankruptcy law, this Article focuses on select decisions that the Authors believe will have the greatest impact on the readers' practices. The Article first updates cases cited in last year's annual survey. The Article continues by discussing cases involving bankruptcy courts' jurisdiction, …

Bankruptcy, John T. Laney Iii, Nicholas J. Garcia

Mercer Law Review

This Article is a review of select bankruptcy opinions issued in 2016 by the United States Court of Appeals for the Eleventh Circuit. The selected bankruptcy opinions surveyed and summarized by the Authors involve the following bankruptcy topics: Stale Debt Collection, the Dischargeability of Debts, Exemptions, Contempt, Judicial Estoppel, and the Rules of Procedure. During 2016, the Eleventh Circuit addressed some "exceptionally important" issues arising in consumer bankruptcy cases and created a circuit split requiring resolution by the United States Supreme Court.

Bankruptcy, John T. Laney Iii, Nicholas J. Garcia

Mercer Law Review

This Article is a review of bankruptcy opinions issued in 2015 by the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the district courts and bankruptcy courts within the Eleventh Circuit. This Article covers issues regarding the following bankruptcy topics: lien stripping, exemptions, fraudulent transfers, the discharge injunction, executory contracts, and conversion.

Wellness International Network V. Sharif: Minimizing The Jurisdictional Impact Of Stern Through Consent Of Bankruptcy Litigants, Ishaq Kundawala

Articles

Without conducting an official poll, it can safely be said that a majority of lawyers, judges, and scholars agree the nature and scope of bankruptcy jurisdiction is quite confusing and at times uncertain. There has always been—and perhaps always will be—a tug-of-war between the legislative and judicial branches of government over the proper scope of bankruptcy jurisdiction, with one side expanding the reach of bankruptcy jurisdiction legislatively and the other side limiting that reach judicially. This poses a classic separation of powers struggle between the two branches, which has certainly played out in recent bankruptcy jurisprudence.

When Congress created the …

Bankruptcy, John T. Laney Iii, Daniel Taylor

Mercer Law Review

This Article offers a review of recent bankruptcy-related opinions issued in 2014 by the United States Supreme Court and courts within the Eleventh Circuit. The topics are varied, ranging from the jurisdiction of the bankruptcy courts to the ever-developing law arising from "lien stripping."

More Than Money: Emotional Distress Damages In Bankruptcy Proceedings, H. Thomas Shaw

Mercer Law Review

The bankruptcy process is often viewed as purely financial, evoking images of only dollars and cents, secured and unsecured debts, and reorganization. However, there is more involved than purely financial matters. It can be personal, emotional, and leave a lasting effect upon the debtor's life. Historically, bankruptcy could be devastating to an individual, leading to public shame and humiliation. Although the public is now more accepting of a debtor's plight, it is still a harrowing experience. Due in part to the sensitive nature of bankruptcy, the drafters of the Constitution gave Congress the ability to pass uniform bankruptcy laws throughout …

Down The Rabbit Hole: Crawford V. Lvnv Funding, Llc Upends The Role Of The Fair Debt Collection Practices Act In Consumer Bankruptcy, Brittany M. Dant

Mercer Law Review

For decades courts have faced the issue of whether the Fair Debt Collection Practices Act (the FDCPA) applies to filing proofs of claims in consumer bankruptcy cases. Courts have historically been cautious of applying the FDCPA in the realm that the Bankruptcy Code covers. As such, the majority of courts faced with this question found the answer to be a resounding "no." However, in Crawford v. LVNV Funding, LLC, the United States Court of Appeals for the Eleventh Circuit turned the tide when it held that the filing of a proof of claim on a timebarred debt in Chapter …

Bankruptcy, John T. Laney Iii, Daniel Taylor

Mercer Law Review

This Article focuses on bankruptcy opinions issued in 2013 by the Supreme Court of the United States and courts within the Eleventh Circuit. The topics range from the legality of "ghostwriting" to the definition of "defalcation" under section 523(a)(4) of the United States Bankruptcy Code.

Bankruptcy, James D. Walker Jr., Amber Nickell, Tim Colletti

Mercer Law Review

This Article focuses on bankruptcy opinions issued in 2012 by the courts in the Eleventh Circuit. The topics are varied, ranging from the constitutionality of bankruptcy-specific exemption schemes enacted by the states to the ever-growing body of law arising from the means test.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

This Article offers a review of recent bankruptcy law developments' in the United States Court of Appeals for the Eleventh Circuit.' Two notable areas of activity in the past year included: (1) bankruptcy court jurisdiction, which was ruled on by the United States Supreme Court; and (2) mortgages in Chapter 13 cases, which were the subject of both case law and a new bankruptcy rule.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

The past few years have been somewhat uneventful in terms of the development of bankruptcy law in Eleventh Circuit courts. The year 2010 was no exception. The lack of significant cases in the lower courts, however, has been offset by notable activity in the Supreme Court of the United States, which has decided five bankruptcy cases since last year's Survey.

Milavetz, Gallop & Milavetz, Pa. V. United States: "In Contemplation Of' The Meaning, Applicability, And Validity Of Attorney Restrictions In The Bapcpa, Joseph D. Orenstein

Mercer Law Review

In Milavetz, Gallop & Milavetz, PA. v. United States, the Supreme Court of the United States held that, under section 227 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), attorneys who provide bankruptcy counsel are "debt relief agencies." The Court also held two BAPCPA provisions constitutional: one provision that prevented debt relief agencies from advising a debtor to incur more debt in contemplation of bankruptcy and another that imposed disclosure requirements on debt relief agencies. In light of the inconsistent and unclear interpretations of BAPCPA provisions considered in this case, the Court's ruling acts to …

Unveiling The Mystery, History, And Problems Associated With The Jurisdictional Limitations Of Bankruptcy Courts Over Personal Injury Tort And Wrongful Death Claims, Ishaq Kundawala

Articles

The current jurisdictional structure of bankruptcy courts in the United States is nothing short of a mystery. Scholars, judges, and practitioners have long struggled with finding their way through the confusing labyrinth of jurisdictional rules, exceptions, and exclusions in our current bankruptcy system. Courts spend countless hours each year considering all kinds of jurisdictional issues that arise in bankruptcy cases. This results in a diversion of judicial resources from substantive matters. Adding to this quandary is the limited scope of bankruptcy courts' jurisdiction over a small but very significant subset of claims-personal injury tort and wrongful death claims-which weaves yet …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

I. INTRODUCTION

In 2009 the country entered into a significant recession, but bankruptcy law-perhaps surprisingly-remained relatively static, at least in the Eleventh Circuit. On a national level, things were a bit more interesting; the Chrysler bankruptcy was much discussed in the media and there was a renewed interest in allowing individuals to modify primary residence mortgages in bankruptcy. Still, even the collapse of the housing market could not move Congress to amend the Bankruptcy Code. Despite the action on a national level, in the Eleventh Circuit it was business as usual with a year that can best be described as …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

In 2007 the world of bankruptcy law lacked much of the excitement seen in 2005 and 2006. During the previous two years a variety of novel issues and intra-circuit conflicts arose as courts began interpreting the 2005 amendments to the Bankruptcy Code. The pace settled down in 2007 as courts began work that consisted more of refinement than innovation. They tackled the scope of sovereign immunity, the automatic stay, undue hardship for student loan discharge, and the hanging paragraph in § 1325(a). These and other recent developments in Eleventh Circuit bankruptcy law are addressed in this Article.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

"Stringent execution" may be the watch phrase for implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The bankruptcy bar has lived with BAPCPA for well over a year, and if one common thread arises in the case law, it is judges dissatisfaction with what may kindly be referred to as "drafting flaws." Many courts have highlighted these flaws-and other perceived inadequacies in BAPCPA-by ruthlessly enforcing the statute's plain language. This has already led to the enactment of one amendment by Congress, as well as criticism from some of its members. Whether further amendments will follow …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

Never underestimate the persistence of the credit lobby. In the most significant development in bankruptcy law since last year's Article, Congress finally, after eight years of trying, enacted bankruptcy reform legislation in the form of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA" or the "Act"). At least one judge has stated that "to call the Act a 'consumer protection' Act is the grossest of misnomers." Indeed, the Act creates new roadblocks for entrance into bankruptcy, such as the pre-petition credit counseling requirement and Chapter 7 means testing; limiting or eliminating the protection of the automatic stay for repeat …

Judicial Estoppel And The Eleventh Circuit Consumer Bankruptcy Debtor, James D. Walker Jr., Amber Nickell

Mercer Law Review

Judicial estoppel is an equitable doctrine intended to prevent a litigant from making a mockery of the judicial system by asserting inconsistent positions in different legal proceedings. The peculiarities of bankruptcy, however, are not always conducive to the easy application of judicial estoppel, particularly when it harms the debtor's creditors. Since the Eleventh Circuit Court of Appeals decided its first bankruptcy-related judicial estoppel case in 2002, the court has not fully addressed some important complexities raised by bankruptcy.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

No one topic dominated bankruptcy cases arising in the Eleventh Circuit in 2004, but several developments took center stage. First, judicial estoppel re-emerged as a tool used to prevent a windfall to the debtor when the trustee is the real party in interest. Second, any benefit accruing to debtors after last year's Supreme Court decision on state sovereign immunity may have been effectively eliminated by a recent circuit court decision. Third, student loan creditors endeavored to eviscerate the last remnants of the undue hardship discharge by invoking the availability of the income contingent repayment plan. This Article addresses these and …