Bankruptcy Law Commons^™

Cutting The Gordian Knot: The Case For Allowing Modification Of Home Mortgages In Bankruptcy, Susan E. Hauser

Journal of Business & Technology Law

No abstract provided.

Insuring Against The Risk Of Collusion In Corporate Bankruptcy Cases: The Uncharted Waters Of The Insured Vs. Insured Exclusion In Directors' And Officers' Liability Insurance Policies, Cullen Ann Drescher

West Virginia Law Review

No abstract provided.

Yellowstone Mountain Club, Benjamin Signer, Paul Wehmeier, Joseph Whelan

Chapter 11 Bankruptcy Case Studies

No abstract provided.

The Secondary Market For Gift Cards And The Role Of Corporate Bankruptcy Risk, Kaitlyn A. Desai

CMC Senior Theses

The website, Plastic Jungle, is taking advantage of the rapidly growing gift card phenomena by creating a secondary market that enables consumers to buy, sell, and exchange gift cards online at a discount. This paper examines the relationship between this secondary gift card market and the corporate bankruptcy risk of companies with gift cards listed on the market. When a company issues a gift card, the card is unsecured debt and the cardholder becomes an unsecured creditor to the company. This paper investigates whether the cardholder acts similarly to other unsecured creditors or as someone who is merely holding another …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola's Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks.

Single Asset Real Estate And Development Projects: The Kara Homes Mistake, Marshall E. Tracht

Articles & Chapters

The Kara Homes decision held that various affiliates of Kara Homes, Inc., each of which owned a separate real estate project, were "single asset real estate" ("SARE'') cases under the Bankruptcy Code's definition. According to the author of this article, the designation as single asset real estate substantially increased the difficulty faced by the debtors in maintaining their reorganization efforts, and has given lenders and their counsel a significant amount of comfort. However, the definition runs against the actual wording of the Bankruptcy Code, the intent underlying the SARE provisions, and the political winds. It should, and may well, be …

Nothing Natural About It: Still Searching For A Solution To The Chapter 11 Stamp Tax Exemption, Lindsay K. Taft

Seattle University Law Review

In June of 2008, in Florida Department of Revenue v. Piccadilly Cafeterias, Inc., the Supreme Court settled a circuit split and issued a bright line rule stating that asset transfers made prior to the confirmation of a Chapter 11 plan of reorganization no longer benefit from certain tax exemptions. As a result, the cost of selling assets in a bankruptcy case outside of a plan will increase. The provision at issue in the case, which exempts asset transfers and sales from certain state taxes, contains language ambiguous enough that four federal circuit courts have contemplated which types of asset …

Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions In Bankruptcy Opinions, Nancy B. Rapoport

Scholarly Works

This article discusses what types of behavior can trigger a bankruptcy court's initiation of sanctions against an attorney.

Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport

Scholarly Works

This article discusses the many ways in which professional fees can spiral out of control in chapter 11 bankruptcy cases and evaluates the possible ways to monitor and control those fees.

Chrysler's Bankruptcy: Money Laundering On A Grand Scale, James J. White

Articles

The interesting issue in Chrysler is not the lawyers’ manipulation of the law; it is the politicians’ use of the bankruptcy to launder money. Had the President simply announced that the federal government would give $4 billion to the UAW, the public, even the public in the UAW’s home state of Michigan, would have been up in arms. By laundering the money through the Chapter 11 process, the administration disguised the payment and avoided the outrage.

Saving Up For Bankruptcy, Ronald J. Mann, Katherine Porter

Faculty Scholarship

Bankruptcy is a numbers game. Policymaking, public perception, and the scholarly literature are captivated with the number of annual bankruptcy filings, which hit one million in 2008. The number of annual bankruptcy filings has become a barometer of economic health, reflecting an implicit assumption that bankruptcy is a useful proxy for financial distress.

But at the level of the individual family, the causative relation between financial distress and bankruptcy filings is unclear. On the one hand, only a fraction of those in serious financial distress will ever file for bankruptcy. For example, a study by Michelle White examined a group …

The Sec In Bankruptcy, G. Ray Warner, Keith Sharfman

Faculty Publications

(Excerpt)

Since its founding, the Securities and Exchange Commission ("SEC") has played an important role as both an advisor and regulator in bankruptcy cases, valuing debtor assets, opining on plans of reorganization, regulating the trading of claims and the disclosure of information, and much else. After a period of relative inactivity following the passage of the Bankruptcy Code (which has a less expansive view of the SEC's role than that of the former Chandler Act whose regime the Code replaced), the SEC's involvement in bankruptcy has intensified in recent years with the ascendancy of equity committees and with the increased …

Bankruptcy Reform And Economic Recovery, G. Ray Warner

Journal of Civil Rights and Economic Development

(Excerpt)

In 2005, following years of intensive lobbying by the consumer credit industry, the focus of the consumer bankruptcy law was changed from the liberal debtor-focused "fresh start" approach embodied in the 1978 Bankruptcy Code to a creditor-focused "can pay/must pay" approach. Although the shift to a can pay/must pay system started years earlier to address perceived abuses, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") completed that shift by engrafting onto the bankruptcy law a fairly strict and largely objective test for determining a debtor's ability to repay debt and by setting forth channeling rules designed …

Automotive Bankruptcy Panel Discussion - November 16, 2009, David G. Heiman, Stephen Kerotkin, Stephen D. Lerner, Thomas Moers Mayer

Cleveland State Law Review

This panel discussion concerning bankruptcy and the automobile industry took place in the Joseph W. Bartunek III Moot Court Room on the campus of the Cleveland-Marshall College of Law on November 16, 2009.

Orthodox Jewish Women And Eligibility For The Parsonage Exemption, Jacob Lewin

Cardozo Journal of Equal Rights & Social Justice

The note examines the eligibility of Orthodox Jewish women for the parsonage exemption under Section 107 of the Internal Revenue Code, arguing that unordained women can qualify if they hold formal theological degrees, despite lacking formal ordination or certification. It critiques Michael Broyde’s proposal that functional roles alone suffice, asserting that requiring formal licensing or certification prevents abuse of the exemption while ensuring its purpose of supporting religious leadership is maintained.

The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis

Cardozo Law Review

No abstract provided.

The Costs Of Bapcpa: Report Of The Pilot Study Of Consumer Bankruptcy Cases, Lois R. Lupica

Faculty Publications

Substantial changes were made to the consumer bankruptcy system with the enactment of BAPCPA. These changes, however, were enacted without data support for, or recognition of how such changes would affect the cost of accessing the bankruptcy system. The Costs of BAPCPA Pilot Study undertook a review of the costs of the consumer bankruptcy system following BAPCPA's enactment, to determine if costs were increased, and if so, whether these costs were passed on to the consumer. The issue of "costs" distills the question of what attorneys are charging consumers to represent them under the new regime. Thus a study of …

Anna Nicole Smith Goes Shopping: The New Forum-Shopping Problem In Bankruptcy, G. Marcus Cole, Todd J. Zywicki

Journal Articles

In the United States, relations between debtors and their creditors are governed by two distinct legal regimes. For the overwhelming majority of credit relationships, state law of contract, property, tort, and consumer protection set up the framework within which the debtor-creditor relationship is established, functions, and in the end, is dissolved. In a smaller but significant number of these relationships, a different forum orchestrates the end of these relationships, namely, federal bankruptcy court. These two distinct forums for debtor-creditor relations coexist side by side, with some disputes moving over time from one forum to the other. As with any system …

Ask The Professor: Portfolio Margining – How Will Dodd-Frank Impact Its Utilization?, Ronald Filler

Articles & Chapters

This article analyzes the background and current status of portfolio margining, how it has evolved over the past several years, and how the recent Dodd-Frank Act will impact its utilization and effectiveness. Portfolio margining allows a broker-dealer to analyze a client's total overall portfolio from a risk-based analytical model, establishing the proper minimum initial margin requirements for the entire portfolio applying certain parameters. To be a more effective tool, changes to the U.S. Bankrupcty Code were needed. The Dodd-Frank Act made those legislative changes. It's now up to the regulators to make portfolio margining an even more effective and utilized …

Panel 3: Bankruptcy & Restructuring Of Financial Institutions, Barry E. Adler, William A. Ackman, Marcia L. Goldstein, Arthur J. Gonzalez, Michael J. Krimminger, Edward R. Morrison

Faculty Scholarship

Barry Adler: Thank you all for being here. It is an honor for me to be on this panel and an honor to moderate it. Let me introduce our panel before we get started. William A. Ackman, the founder and CEO of Pershing Square Capital Management; Marsha Goldstein, a partner and chair of the business finance and restructuring department at Weil, Gotshal; the Honorable Arthur Gonzalez, a judge in the U.S. Bankruptcy Court for the Southern District of New York; and Ed Morrison, the Harvey Miller Professor of Law and Economics at Columbia Law School. Also on this panel is …

Ask The Professor: How Does The U.K. Client Money Rules Differ From The U.S. Customer Segregated Rules When The Custodian Firm Fails To Treat Customer Property Properly?, Ronald Filler

Articles & Chapters

No abstract provided.

The Evolution Of The Italian And U.S. Bankruptcy Systems: A Comparative Analysis, Paolo Manganelli

Journal of Business & Technology Law

No abstract provided.

Government Involvement In Chrysler Bankruptcy: The Least-Worst Alternative?, John A. E. Pottow

Articles

As usual, my colleague Jim White has hit many nails on many heads. Also as usual, however, I’m going to be a pain and part ways with him a bit. First, was Chrysler’s bankruptcy “suspicious” in its use of section 363 of the Bankruptcy Code? You bet. Leaving aside the proliferation of 363 sales to swallow Chapter 11 as we once knew it, Chrysler was out in left field. Not only was it a “sale” of everything meaningful in the company, it was to a seller—Fiat—that put in no money. (To be fair, Fiat agreed to contribute technological know-how on …

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 …