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Articles 121 - 145 of 145
Full-Text Articles in Bankruptcy Law
The Trustee’S Strong Arm Power Under The Bankruptcy Code, David G. Carlson
The Trustee’S Strong Arm Power Under The Bankruptcy Code, David G. Carlson
Articles
No abstract provided.
Secured Creditors And Expenses Of Bankruptcy Administration, David G. Carlson
Secured Creditors And Expenses Of Bankruptcy Administration, David G. Carlson
Articles
In any complex bankruptcy proceeding one of the most poignant questions facing the parties and the court is who must pay the trustee's expenses. In addition to routine administrative costs, such expenses may include costs of disposing of estate assets, or, in reorganization proceedings, expenses necessary to preserve the assets and going-concern value of the debtor's business. In this Article, Professor David Gray Carlson undertakes a comprehensive examination of the law of bankruptcy expense allocation through the lens of Bankruptcy Code section 506(c), the trustee's principle tool for charging expenses to secured creditors. After a careful examination of priority and …
Bankruptcy Theory And The Creditors' Bargain, David G. Carlson
Bankruptcy Theory And The Creditors' Bargain, David G. Carlson
Articles
The article critiques the traditional "simple creditors' bargain" theory in bankruptcy law, arguing that it fails to align with libertarian principles due to its inability to justify bankruptcy discharges and its exclusion of debtors and non-creditors. It then explores an "expanded creditors' bargain," which attempts to address distributive aspects but ultimately falls short by excluding non-consensual creditors and failing to explain why contractual risk allocation is insufficient. The analysis highlights the theory's shortcomings in handling various creditor types and risks, questioning its validity in explaining bankruptcy law.
Absolute Priority And New Value, James J. White
Absolute Priority And New Value, James J. White
Articles
This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …
Postpetition Interest Under The Bankruptcy Code, David G. Carlson
Postpetition Interest Under The Bankruptcy Code, David G. Carlson
Articles
The article examines the legal ambiguity surrounding postpetition interest for undersecured creditors in bankruptcy proceedings, focusing on the Supreme Court's ruling in *Timbers of Inwood Forest*. It critiques the decision as unpersuasive and highlights the need for clearer legal frameworks to balance creditor and debtor rights, ensuring fairness and efficiency in bankruptcy cases.
Successor Liability In Bankruptcy: Some Unifying Themes Of Intertemporal Creditor Priorities Created By Running Covenants, Products Liability, And Toxic-Waste Cleanup, David G. Carlson
Articles
No abstract provided.
Taking From Farm Lenders And Farm Debtors: Chapter 12 Of The Bankruptcy Code, James J. White
Taking From Farm Lenders And Farm Debtors: Chapter 12 Of The Bankruptcy Code, James J. White
Articles
In passing Chapter 12 of the Bankruptcy Reform Act, Congress has effectively invalidated certain important provisions of existing farm mortgages. Equally significant, Congress has disabled farmers from granting binding mortgages on the full, value of their property. Although no court is likely to find the Chapter to violate the fifth amendment, the Chapter constitutes a substantial and retroactive alteration of the rights of existing mortgagees and a restriction on the powers of prospective mortgagors to grant valid mortgages. The thesis of this paper is that Congress was both wrong and shortsighted in its enactment of Chapter 12. Congress was wrong …
Philosophy In Bankruptcy, David G. Carlson
Philosophy In Bankruptcy, David G. Carlson
Articles
The article critically examines Jackson's theories on bankruptcy law, arguing that his "creditor's bargain" model is logically inconsistent and lacks empirical support. It highlights flaws in his assumptions of creditor equality and the justification for bankruptcy discharge, ultimately concluding that his work is ad hoc and unverifiable.
Leveraged Buyouts In Bankruptcy, David G. Carlson
Future Nonadvance Obligations Under Article 9 Of The Ucc: Legitimate Priority Or Unwarranted Squeeze-Out?, Jeanne L. Schroeder, David G. Carlson
Future Nonadvance Obligations Under Article 9 Of The Ucc: Legitimate Priority Or Unwarranted Squeeze-Out?, Jeanne L. Schroeder, David G. Carlson
Articles
The article critiques the Second Circuit's decision in Dick Warner Cargo Handling Corp. v. Aetna Business Credit, Inc., arguing that it unfairly prioritizes revolving credit financiers over lien creditors by reviving the unitary theory of security interests under Article 9 of the UCC. The authors defend the multiple theory, asserting that security interests for advances and nonadvance obligations should be treated separately, and that the court's ruling undermines the balance intended by the 1972 UCC amendments.
The Bildisco Case And The Congressional Response, James J. White
The Bildisco Case And The Congressional Response, James J. White
Articles
Section 365 of the Bankruptcy Reform Act authorizes one in bankruptcy to "assume or reject any executory contract ...of the debtor." The most frequent use of the section arises when a lessee goes into Chapter 11 and decides either to reject its real estate lease with its lessor or, if the lease is at a favorable rental rate, to assume it and assign it to another. A less frequent but more controversial use of section 365 is to reject one's collective bargaining agreement with his employees.
Efficiency Justifications For Personal Property Security, James J. White
Efficiency Justifications For Personal Property Security, James J. White
Articles
In February of 1983 Pan American World Airways issued 100 million dollars of convertible secured notes. As security for these notes it put up three Boeing 747 SP aircraft, two 747-100 aircraft, and one McDonnell Douglas DC10-30. The appraised value of these aircraft was 157 million dollars. To the extent possible under the law, Pan American made these aircraft subject to the claims of the owners of the new notes. On default, the note holders would have the first claim on these aircraft, would have the right to repossess them outside of bankruptcy, and would have the right to the …
The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White
The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White
Articles
One can view the law of creditors' rights as a series of cyclesin which alternatively the rights of the creditor and then those of the debtor are in ascendancy. Looking back through Americanlegislative history, one sees both the state legislatures and the Congress intervening on behalf of debtors in a variety of ways onmany occasions. An early example of such intervention was the enactment, particularly in the Midwest and West, of generous exemption laws that removed a variety of property beyond the reach of general creditors. A second example is the enactment of usury laws, which continue to be a …
The Federal Bankruptcy Act And Its Effect On State Insolvency Laws, Evans Holbrook
The Federal Bankruptcy Act And Its Effect On State Insolvency Laws, Evans Holbrook
Articles
Since Sturgis v. Crowninshield, 4 Wheat. 122, it has been clear that State Insolvency Laws were valid (within certain well-defined limits) during the non-existence of a Federal Bankruptcy Act, and that upon the enactment of a Federal Bankruptcy Act the State laws were superseded and suspended so far as they were in conflict with the Federal legislation. The difficulty has been in determining when there was such conflict, and it has arisen in various ways. For instance, the Federal Bankruptcy Act permits any natural person to become a voluntary bankrupt, but provides that no involuntary proceedings shall be taken against …
Insurance Policies As Assets In Bankruptcy, Evans Holbrook
Insurance Policies As Assets In Bankruptcy, Evans Holbrook
Articles
The Supreme Court of the United States, in the recent case of Cohen v. Samuels, 38 Sup. Ct. 36, has put an end to a method, approved by some of the lower Federal Courts, whereby a person could create a fund which would be completely under his control but which would nevertheless be protected against any claim on the part of his trustee in bankruptcy. The circumstances in the principal case were as follows: Samuels had taken out ordinary life insurance policies, with the usual provisions as to loan and surrender values, payable to certain of his relatives as beneficiaries, …
When Is A Preferential Transfer 'Required' To Be Recorded? , Evans Holbrook
When Is A Preferential Transfer 'Required' To Be Recorded? , Evans Holbrook
Articles
The BANKRUPTCY ACT of 1898 (as amended in 1903 and 1910), after defining a preference, provides in § 60b that preferences made under certain circumstances may be recovered from the preferred creditor if the latter had "reasonable cause to believe" that a preference was to be effected "at the time of the transfer * * * or of the recording or registering of the transfer if by law recording or registering thereof is required," such time being within four months before bankruptcy. Bankrupcty courts have for years been vexed with the question: When is a transfer "required" to be recorded …
Execution Sales As Preferential Transfers In Bankruptcy, Evans Holbrook
Execution Sales As Preferential Transfers In Bankruptcy, Evans Holbrook
Articles
In the recent case of Golden Hill Distilling Co. v. Logue, 243 Fed. 342, the Circuit Court of Appeals for the Sixth Circuit holds that a "creditor who recovers a judgment, by consent or in invitum, and by execution sale collects his money within four months preceding bankruptcy, and with reasonable cause to believe [that a preference would thereby be effected] receives a voidable preference, which he must repay to the trustee." This question is one that has vexed the bankruptcy courts ever since the Supreme Court of the United States in Clarke v. Larremore, 188 U. S. 486, declined …
When Is A Preferential Transfer Required To Be Recorded?, Evans Holbrook
When Is A Preferential Transfer Required To Be Recorded?, Evans Holbrook
Articles
In the recent case of Carey v. Donohue, 36 Sup. Ct. 386, the Supreme Court of the United States has passed on a question that has for years been vexing the Circuit Courts of Appeals, namely: When is the recording of a preferential transfer "required" under § 60 of the'Bankruptcy Act of 1898 as amended in 1903 and 1910. § 60a (as amended in 1903) defines a preference as a transaction by which property of an insolvent debtor is transferred, within four months before his bankruptcy, in such a way that the debt owing to one of his creditors will …
Discharge In Bankruptcy Of Principal's Inchoate Obligation To Indemnify His Surety, Evans Holbrook
Discharge In Bankruptcy Of Principal's Inchoate Obligation To Indemnify His Surety, Evans Holbrook
Articles
In the recent case of R. P. Williams, et al. v. United States Fidelity and Guaranty Company, 35 Sup. Ct. 289, the United States Supreme Court has at last passed upon a question that has vexed the courts ever since the enactment of the Bankruptcy Act of 1898. As stated by the Supreme Court, the question is this: "Does a discharge in bankruptcy acquit an express obligation of the principal to indemnify his surety against loss by reason of their joint bond conditioned to secure his faithful performance of a building contract broken prior to the bankruptcy when the surety …
Depositors' Checks In Payment Of Matured Obligations Held By Drawee Bank As Preferences, Ralph W. Aigler
Depositors' Checks In Payment Of Matured Obligations Held By Drawee Bank As Preferences, Ralph W. Aigler
Articles
Since the case of New York County Bank I. Massey, 192 U. S. 138, there has been no doubt as to the right of a debtor of a bankrupt's estate to exercise the right of set-off as preserved by § 68a of the Bankruptcy Act. In that case it was laid down dearly that such right of set-off may be exercised despite the provisions of § 60a, which covers the matter of preferences. The question very frequently arises when bankers apply deposit balances upon matured obligations of customers. If such application is made within four months of the time when …
A Surety's Claim Against His Bankrupt Principal Under The Present Law, Evans Holbrook
A Surety's Claim Against His Bankrupt Principal Under The Present Law, Evans Holbrook
Articles
"The peculiar three-sided relationship of principal, surety and creditor gives rise to many vexatious questions of law, and one of the most interesting is that of the relationship between surety and principal in the case of the latter's bankruptcy."
Provability In Bankruptcy Of Claims Arising Out Of Alimony Decrees Or Separation Agreements Between Husband And Wife, Ralph W. Aigler
Provability In Bankruptcy Of Claims Arising Out Of Alimony Decrees Or Separation Agreements Between Husband And Wife, Ralph W. Aigler
Articles
It was not until the decisions in Audubon v. Shufeldt, 181 U. S. 575, and Wetmore v. Markoe; 196 U. S. 68, that it was authoritatively determined in this country that alimony, whether in arrears at the time of filing petition, or payable in the future, was not provable in bankruptcy.
A Surety's Claim Against His Bankrupt Principal Under The Present Law, Evans Holbrook
A Surety's Claim Against His Bankrupt Principal Under The Present Law, Evans Holbrook
Articles
The peculiar three-sided relationship of principal, surety and creditor gives rise to many vexatious questions of law, and one of the most interesting of these vexatious questions is that of the relationship between surety and principal in the case of the latter's bankruptcy. Under such circumstances, the creditor's right is fairly simple; he may prove his debt against the principal, take such dividend as may be declared, and recover the balance of the debt from the surety, his remedy against the latter being expressly saved by Sec. 16 of the present Bankruptcy Act.1 But the position of the surety is …
Exit Of Doctrine Of Situs, John R. Rood
Exit Of Doctrine Of Situs, John R. Rood
Articles
A decision rendered by the Supreme Court of the United States on the 8th day of last May seems to mark the elimination of the doctrine of situs as a jurisdictional question in garnishment and attachment proceedings in the United States.
Foreign Voluntary Assignments For The Benefit Of Creditors, Edson R. Sunderland
Foreign Voluntary Assignments For The Benefit Of Creditors, Edson R. Sunderland
Articles
AlI laws concerning property rights are based upon the broad - doctrine that every person who owns property may dispose of the same as he sees fit. The right of disposal of property is inseparably united to the right of property itself, and indeed is an essential element of the concept of property. It might even serve as a definition of property, viewing property as that which one may dispose of,-a definition too general, it is true, for practical purposes, but undoubtedly a correct and valuable metaphysical theorem