Bankruptcy Law Commons^™

The Role Of Valuation In Federal Bankruptcy Exemption Process: The Supreme Court Reads Schedule C, David G. Carlson

Articles

In Taylor v. Freeland & Kronz, a debtor claimed a law suit was exempt. The bankruptcy trustee failed to object within the required period. Later, the law suit realized an amount that far exceeded the monetary limit to which the debtor was entitled. The Supreme Court permitted the debtor to keep all of the proceeds, even beyond the statutory limit, claiming that a deadline was a deadline. Recently, in Schwab v. Reilly, the Supreme Court overruled Taylor, holding that a claim to a monetarily limited item can only exempt the monetary limit. The Court tries and fails to "reconcile" these …

Modified Plans Of Reorganization And The Basic Chapter 13 Bargain, David G. Carlson

Articles

A very large number of chapter 13 plans are confirmed each year. Unlike chapter 11 plans (for non-individuals), these plans may be revised after confirmation. The modification provisions of the Bankruptcy Code, however, give very little guidance as to what constitutes a permissible modification. In contrast, confirmation of the original plan is very carefully governed. This article theorizes that modification must honor the basic chapter 13 bargain. According to this bargain, the debtor is entitled to the bankruptcy estate and the creditors are entitled to net surplus income. The article assesses whether the diffuse and disorganized caselaw of modification adheres …

Finding The Shoes That Fit: How Derivative Is The Trustee's Power To Avoid Fraudulent Conveyances Under Section 544(B) Of The Bankruptcy Code?, Alan N. Resnick

Cardozo Law Review

Section 544(b) of the Bankruptcy Code, which enables a bankruptcy trustee to avoid transfers that an actual unsecured creditor could have avoided under state law, is a powerful tool most often used to recover assets that were fraudulently transferred several years before a debtor's bankruptcy case. This power is often described as permitting the trustee, for the benefit of the bankruptcy estate and all of the debtor's unsecured creditors, to "stand in the shoes" and assert the rights of the particular unsecured creditor. In a recent case, In re Allou Distributors, Inc., the Bankruptcy Court for the Eastern District …

Regis Ltd. V. Trabelsi, Miriam Naor, Edna Arbel, Elyakim Rubinstein

Translated Opinions

Facts: The respondent company, Dan Rolider Ltd., purchased heavy engineering equipment from the appellant, Regis Ltd., and agreed that a charge would be placed upon the equipment in favor of the appellant. The appellant failed to register the charges with the Registrar of Companies within the statutory 21 days. The appellant defaulted on its debt to the respondent, the CEO and controlling shareholder of the appellant company died, and an application was made to liquidate the company. Following the application for liquidation of the company, the respondent filed an application with the Registrar of Companies to extend the period …

The Res Judicata Worth Of Illegal Bankruptcy Reorganization Plans, David G. Carlson

Articles

The article examines the interplay between res judicata and the confirmation of bankruptcy reorganization plans, particularly under Chapter 13. It argues that while res judicata is essential for finality, it must not compromise procedural fairness and due process. The author advocates for a balanced approach where confirmed plans are binding but also ensure that creditors' rights are protected through proper legal procedures.

Pride And Prejudice In Securitization: A Reply To Professor Plank, Kenneth C. Kettering

Cardozo Law Review

No abstract provided.

Protecting The Right To Marital Property: Ensuring A Full Equitable Distribution Award With Fraudulent Conveyance Law, Benjamin M. Ellis

Cardozo Law Review

No abstract provided.

The Chapter 13 Estate And Its Discontents, David G. Carlson

Articles

Thirty years after the enactment of the Bankruptcy Code, the courts have yet to agree on a theory of the bankruptcy estate in Chapter 13 cases. This is not the fault of the courts. The Bankruptcy Code is contradictory as to the composition of the chapter 13 estate. This article selects one of four possible theories and defends it as the one that does the least violence to the plain meaning of the Bankruptcy Code.

This theory is referred to in this article as the "Divestment Theory," because it holds that, upon confirmation of a chapter 13 plan, the debtor …

Critique Of Money Judgment (Part Two: Liens On New York Personal Property), David G. Carlson

Articles

The article critiques the New York Civil Practice Law and Rules (CPLR) for its outdated and overly complex framework governing money judgments, particularly in the creation, enforcement, and priority of judicial liens. It argues that the CPLR's inefficiencies and inconsistencies, exacerbated by conflicts with federal bankruptcy law and the Uniform Commercial Code (UCC), lead to unjust outcomes for both debtors and creditors. The article proposes modest reforms to align the CPLR with modern legal standards, simplify procedures, and eliminate unnecessary distinctions between tangible and intangible property.

Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank

Cardozo Law Review

No abstract provided.

Critique Of Money Judgment Part One: Liens On New York Real Property, David G. Carlson

Articles

The article critically examines the enforcement of money judgments in New York, particularly focusing on liens on real property. It argues that the current system is outdated, arbitrary, and often unfair to creditors, highlighting the need for legislative reforms to create a more equitable and efficient framework. The analysis underscores the complexity and challenges faced by creditors and legal practitioners within the existing structure.

Bankruptcy Policy: A Review And Critique Of Bankruptcy Statutes And Practices In Fifty Countries Worldwide, Ziad Raymond Azar

Cardozo Journal of International and Comparative Law

Bankruptcy law plays a crucial role in a capitalist economy by facilitating resource reallocation through creative destruction, with its effectiveness hinging on balancing creditor protection and debtor rehabilitation. The article examines bankruptcy statutes and practices across 50 countries, emphasizing the need for efficient, practical reforms that maximize estate value while addressing global diversity in insolvency frameworks. It advocates for a comprehensive approach to bankruptcy law, ensuring transparency, fairness, and alignment with economic goals.

Securitization And Its Discontents: The Dynamics Of Financial Product Development, Kenneth C. Kettering

Cardozo Law Review

This paper takes as its point of departure the financing technique referred to as "securitization," a close cousin of secured lending that has grown to enormous size since its origin more than two decades ago. The paper pursues two themes. One is a critique of the legal foundations of securitization, which includes a perspective on aspects of fraudulent transfer law that are well established historically but have been neglected in recent decades. The other is exploration of the implications of this product growing so vast despite its dubious legal foundations. In that regard, the paper explores two points of legal …

Corporate Social Accountability Standards In The Global Supply Chain: Resistance, Reconsideration, And Resolution In China, Li-Wen Lin

Cardozo Journal of International and Comparative Law

This Article provides a view on corporate social accountability standards from a Chinese perspective, a slightly different angle from that of legal scholars in the United States. The legal literature in the United States typically only focuses on the importance and effectiveness of corporate social accountability standards to regulate the conduct of multinational companies in the era of globalization. However, the views of the outsourced companies in the developing countries, on which the multinational companies impose the standards, have seldom received attention. This Article tries to fill this void by examining the situation in China. As shown in this Article, …

Predatory Structured Finance, Christopher L. Peterson

Cardozo Law Review

No abstract provided.

Means Testing: The Failed Bankruptcy Revolution Of 2005, David G. Carlson

Articles

The monumental bankruptcy amendments of 2005 made means testing the very center of the attempt to restore discipline to consumer spending. Yet, one year of practical experiences shows that either the means test either promotes bankruptcy abuse, or it is meanginless, depending on whether courts think the mechanical means test pre-empts pre-2005 law, or whether it merely supplements it. This article explores the means test in details, shows why it is a flop, and what the courts have made of it so far.

The Limits Of Bankruptcy Code Preemption: Debt Discharge And Voidable Preference Reconsidered In Light Of Sherwood Partners, Alan J. Feld

Cardozo Law Review

No abstract provided.

Debtor-Filed Acknowledgments Of Creditors' Claims: An Alternative Approach To Proof Of Claim In Chapter 13, Arpan K. Punyani

Cardozo Law Review

No abstract provided.

Fear Not The Asset Protection Trust, Adam J. Hirsch

Cardozo Law Review

No abstract provided.

After The Dismissal Of An Involuntary Bankruptcy Petition: Attorney's Fees Awards To Alleged Debtors, Isabella C. Lacayo

Cardozo Law Review

No abstract provided.

Say "Ahhh!": A New Approach For Determining The Cram Down Interest Rate After Till V. Scs Credit, Michael Elson

Cardozo Law Review

No abstract provided.

Cars And Homes In Chapter 13 After The 2005 Amendments To The Bankruptcy Code, David G. Carlson

Articles

No abstract provided.

Ethical Issues In Asbestos Litigation, Lester Brickman

Articles

Asbestos litigation has given rise to over 50,000,000 claims against 8400 former producers, distributors, installers and sellers of asbestos-containing products. To date, 850,000 claimants have sought compensation, costing businesses and insurance companies over $70 billion and resulting in more than 70 bankruptcies. Over 100,000 deaths are attributable to asbestos exposure with an additional 40,000 deaths anticipated over the next 30 years. Despite the significance of the ethical issues generated by the processes of acquiring, pressing and settling the most massive litigation in history, the legal literature is substantially devoid of any such discussion. One possible reason for this paucity of …

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John Lande

Cardozo Journal of Conflict Resolution

To say that "The Vanishing Trial" is a myth is not to suggest that the facts or analysis in Professor Galanter's report are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number of cases filed, and the amount …

Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk

Articles

Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works - while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property …

The Filing Of A Bankruptcy Petition In Violation Of 11 U.S.C. § 109(G): Does It Invoke The Automatic Stay?, Robert Lefkowitz

Cardozo Law Review

No abstract provided.

Secured Lending And Its Uncertain Future, Douglas G. Baird

Cardozo Law Review

No abstract provided.

Introduction To The Secured Lending Symposium, Gary Holtzer

Cardozo Law Review

No abstract provided.

The Rise Of State Bankruptcy-Directed Legislation, Ronald J. Mann

Cardozo Law Review

No abstract provided.

The Reliance Interest In Insolvency Law: A Response To Harris And Mooney, Edward J. Janger

Cardozo Law Review

No abstract provided.