Bankruptcy Law Commons^™

9th Biennial Judge Joe Lee Bankruptcy Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, David G. Epstein, Kenneth N. Klee, Paul H. Asofsky, Beverly M. Burden, Lawrence P. King, Charles P. Normandin, John J. Jerome, Taft A. Mckinstry, Joan Lloyd Cooper, G. Ray Warner, Gerald K. Smith

Continuing Legal Education Materials

Materials from the 9th Biennial Judge Joe Lee Bankruptcy Institute held December 1999.

Wage Garnishments In Bankruptcy: Riddervold Revisited, Matthew Frankle

Cardozo Law Review

No abstract provided.

State Defiance Of Bankruptcy Law, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors. In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …

America's Uneasy Relationship With The Working Poor, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Grenztiberschreitendes (Internationales) Insolvenzrecht Dervereinigten Staaten Von Amerika Und Der Bundesrepublik Deutschland (Cross-Border Bankruptcy Law Of The United States And Germany), By Edgar J. Habscheid, Hannah Buxbaum

Indiana Journal of Global Legal Studies

No abstract provided.

State Defiance Of Bankruptcy Law, Kenneth N. Klee, James O. Johnston, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors.

In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …

Letters Of Credit, Voidable Preferences, And The Independence Principle, William H. Widen, David Gray Carlson

Articles

No abstract provided.

Letters Of Credit, Voidable Preferences, And The "Independence" Principle, David G. Carlson, William H. Widen

Articles

The article challenges the traditional application of the independence principle in letters of credit within bankruptcy law, arguing that courts have misapplied this principle, leading to rulings that unfairly protect creditors. The authors propose treating the issuance of a letter of credit as a transfer of the debtor's property, making it subject to voidable preference rules under federal bankruptcy law. They advocate for a reinterpretation of the earmarking doctrine and suggest legislative action to clarify the treatment of letters of credit in bankruptcy, ensuring fairness and consistency in the legal framework.

The Earmarking Defense To Voidable Preference Liability: A Reconceptualization, William H. Widen, David Gray Carlson

Articles

No abstract provided.

Bankruptcy, W.H. Drake Jr., Christopher S. Strickland

Mercer Law Review

Undeniably, 1998 proved to be an important year for bankruptcy in the Eleventh Circuit Court of Appeals, with the circuit ultimately producing a total of fourteen opinions having material bearing upon the debt relief process. In keeping with the cosmopolitan nature of bankruptcy practice, these decisions involved the court's performance of diversified tasks, ranging from the interpretation of intricate Bankruptcy Code provisions, to the construction of governing requirements from the Uniform Commercial Code, and the resolution of potential conflicts between the bankruptcy process and various constitutional or state law provisions. Provided below is an overview of each decision rendered during …

The Earmarking Defense To Voidable Preference Liability: A Reconceptualization, David G. Carlson, William H. Widen

Articles

The article argues that the earmarking doctrine, a judge-created exception to 547b liability, should be reinterpreted under 547c1 of the Bankruptcy Code. It posits that the doctrine's current reliance on vague concepts like "control" is legally unsound and inconsistent with statutory intent. By aligning earmarking with the contemporaneous exchange defense under 547c1, the analysis would focus on the parties' intent and the timing of the exchange, eliminating the need for the controversial control criterion. This approach would bring clarity and consistency to bankruptcy law, preventing arbitrary outcomes and ensuring compliance with the Bankruptcy Code.

Can Shame, Guilt, Or Stigma Be Taught? Why Credit-Focused Debtor Education May Not Work, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Greasing The Squeaky Wheels Of Justice: Designing The Bankruptcy Courts Of The Twenty-First Century, Christopher F. Carlton

Brigham Young University Journal of Public Law

No abstract provided.

Shopping For Judges: An Empirical Analysis Of Venue Choice In Large Chapter 11 Reorganizations, Theodore Eisenberg, Lynn M. Lopucki

UF Law Faculty Publications

This Article reports the results of a comprehensive study of big-case bankruptcy forum shopping from 1980 to 1997. A description of what has occurred helps explain both the causes of Delaware's rise as the preferred Chapter 11 forum and why embarrassment forced the system to take extraordinary countermeasures. The temporal coincidence of three major changes in Chapter 11 practice obscures those causes: (1) a nationwide increase in the rate of Chapter 11 forum shopping; (2) a national trend toward faster case-processing times; and (3) the rise of "prepackaged" bankruptcy cases in which the necessary majorities of creditors have accepted the …

Self-Settled Spendthrift Trusts: Should A Few Bad Apples Spoil The Bunch?, Gideon Rothschild, Daniel S. Rubin, Jonathan G. Blattmachr

Vanderbilt Journal of Transnational Law

It is unfortunate, but perhaps not terribly surprising, that the first two reported cases to consider the application of conflict of laws principles to self-settled spendthrift trusts both involved "bad facts" from an asset protection planning standpoint. In this regard, the adage "bad facts produce bad law" is not a slight on the courts, but rather an acknowledgment of a court's primary duty to do substantial justice to the parties immediately before it. However, in an effort to do substantial justice to the parties immediately before them, the Portnoy and Brooks courts have forged what may well become the first …

Roundtable Discussion, David Aronofsky, Barry S. Engel, Eric Henzy, Gideon Rothschild, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

Welcome to the Roundtable panel discussion. Each of the speakers is going to open with a few minutes statement. And then we're going to pose some questions to open discussion, so it will take people through the whole asset protection route from beginning to end, hopefully. And then, any questions you may have we believe we'll have sufficient time to ask those questions and have them answered. You may get very different views. And then we've just decided that the jury will decide whether asset protection trusts are a good thing or a bad thing. Okay. So pay attention.

Bankruptcy's Organizing Principle, David Gray Carlson

Florida State University Law Review

No abstract provided.

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Indiana Law Journal

No abstract provided.

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

UF Law Faculty Publications

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …

Individual Bankruptcy: Preliminary Findings Of A Socio-Legal Analysis, Iain D. C. Ramsay

Osgoode Hall Law Journal

This article presents preliminary findings from an empirical study of individuals who filed for bankruptcy in the Toronto bankruptcy district in 1994. The central findings are that bankrupts are both asset- and income-poor at the time of declaring bankruptcy, and have much higher ratios of debt-to-income than the general population. Bankrupts are not drawn solely from low status occupations, but neither are they drawn significantly from the highest status occupations. The major reasons for declaring bankruptcy are adverse employment changes and business failure. There has been a large rise in the number of women declaring bankruptcy since earlier studies in …

Options In Consumer Bankruptcy: An American Perspective, Jean Braucher

Osgoode Hall Law Journal

In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …

Philosophy And Design Of Modern Fresh Start Policies: The Evolution Of Canada's Legislative Policy, John D. Honsberger

Osgoode Hall Law Journal

The fresh start concept-the restoration of a bankrupt to his or her former debt-free status-originated in the United States. While lip service is paid to it in Canada, the author's review of the English origins and subsequent evolution of Canadian bankruptcy legislation indicates that a strong commitment to the fresh start policy has never been the Canadian philosophy. Rehabilitation of the debtor is not a matter of great concern in Canada. Indeed, the Canadian legislative policy has always been restrictive of the rights of debtors. With the passage of amendments to the Bankruptcy and Insolvency Act (BIA) in 1992 and …

The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren

Osgoode Hall Law Journal

The political atmosphere in which changes to the American bankruptcy laws occur has shifted since the adoption of the 1978 amendments to the United States Bankruptcy Code. Bankruptcy professionals, who once effectively controlled much of the legislative debate, have lost ground to creditors, who have become much more powerful in influencing bankruptcy legislation. The result has been the politicization of the debate and the setting of the stage for a series of amendments that have rhetorical appeal, but that do not reflect the underlying factual reality of the bankruptcy system.

The Dark Side Of Student Loans: Debt Burden, Default, And Bankruptcy, Saul Schwartz

Osgoode Hall Law Journal

This article addresses three hypotheses: (1) only a minority of Canadian student loan borrowers experience severe difficulty in repaying their student loans; (2) those who default on their student loans do so largely because they cannot pay, rather than because they do not want to pay; and (3) for Canadians who are filing for bankruptcy and who have student loans among their debts, bankruptcy is a last resort, and their economic situation is more difficult than that of the average person seeking bankruptcy protection. A review of the literature strongly supports the first two hypotheses; a new analysis of a …

The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel

Osgoode Hall Law Journal

The rapid increase in the number of consumer bankruptcies in Canada and the United States over the past fifteen years has again focused attention on the philosophy and design of modern insolvency systems, and on the similarities and differences in the approaches adopted in Canada and the United States. In this article, the author points out that the single most important difference is that the United States has historically subscribed to the debtor's right to a "fresh start" after surrendering the debtor's non-exempt property, whereas Canadian law never has, and does not now, confer an absolute right of discharge. Although …

The Empirical Dimensions Of Consumer Bankruptcy: Results From A Survey Of Canadian Bankrupts, Saul Schwartz

Osgoode Hall Law Journal

The number of consumer bankruptcies in Canada has risen substantially over the last twenty years. Using a 1997 survey of approximately 1,000 Canadian debtors, this article explores the economic situation of debtors seeking bankruptcy protection. This economic situation seems to be quite weak-most of the debtors have very low income, very high debts, and few assets. Moreover, the economic situation of the 1997 debtors seems quite similar to that of the 1977 debtors studied by Wayne Brighton and Justin Connidis almost twenty years ago. The aggregate amount of consumer credit, as a proportion of disposable income, has not risen dramatically, …

Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford

Osgoode Hall Law Journal

This article first summarizes the many restrictions that the American consumer bankruptcy system imposes on the enforcement of the contractual rights of secured creditors. The restrictions include the ability, in Chapter 13 proceedings particularly, of the debtor to "strip the lien" of the undersecured creditor, releasing the collateral from the lien upon payment, over time, of only the value of the collateral when it is less than the full amount owing. The article then summarizes many changes in the rights of secured creditors currently being proposed and debated in Congress. The author concludes with his own proposals that would enhance …

Holding The High Ground: The Position Of Secured Creditors In Consumer Bankruptcies And Proposals, Tamara M. Buckwold

Osgoode Hall Law Journal

This article examines the position of secured creditors in the event of a consumer debtor's bankruptcy or the filing of a consumer proposal, as determined by the federal and provincial laws of Canada. Secured creditors in Canada are in a remarkably powerful position relative to other claimants in bankruptcy and to their counterparts in the United States. Their rights of realization against the collateral are essentially unaffected by the initiation of either a consumer bankruptcy or proposal. Moreover, recent judicial developments appear to further enhance secured creditors' rights of enforcement, both against the in personam payment obligation and against the …

Counselling Consumer Debtors Under Canada's Bankruptcy And Insolvency Act, Ruth E. Berry, Sue L. T. Mcgregor

Osgoode Hall Law Journal

If no attempts are made to determine the monetary and non-monetary reasons for bankruptcy or its recurrence, debtors may be more likely to choose bankruptcy, or remain in the cycle of bankruptcy. Credit counselling is one mechanism that can assist consumers in paying back debts without resorting to bankruptcy, thereby preventing repeat bankruptcies and heavy debt loads in the future. Canada passed a major milestone in 1992, becoming the first country to make financial counselling mandatory prior to the granting of an unconditional discharge from personal bankruptcy. This article describes the history of the policy analysis involved in making consumer …

The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler

Osgoode Hall Law Journal

The United States and, to a slightly lesser extent, Canada have come to regard personal bankruptcy as a routine method of discharging debts, enabling the debtor to make a fresh start. By contrast, in the United Kingdom, bankruptcy is still seen as a remedy of last resort, and creditors may retain the right to enforce debts. The difference in approach is due to the fact that the United States and Canada have traditionally given priority to risk taking over security, while the United Kingdom has continued to give priority to security over risk taking. However, the British government's enthusiasm for …