Bankruptcy Law Commons^™

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

Scholarly Works

In recent years, nonprofit entities increasingly have sought bankruptcy protection. Though the Bankruptcy Code does not prevent nonprofits from reorganizing, Chapter 11 was designed for and applies best to for-profit businesses. This creates challenges for courts evaluating a nonprofit’s reorganization plan. This Article focuses on one crucial aspect of a court’s evaluation — the fair and equitable standard, a necessary, but not sufficient condition of which is satisfaction of the absolute priority rule.

The few courts addressing absolute priority claims in nonprofit reorganizations have held that the rule is categorically inapplicable to nonprofit entities except in limited circumstances. These courts …

Still Solvent: The Third Circuit Continues To Support "Deepening Insolvency" As A Viable Tort Claim In In Re Lemington Home For The Aged, Eric Kim

Villanova Law Review (1956 - )

No abstract provided.

Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching, Richard E. Flint

Faculty Articles

An essay is presented on consumer bankruptcy policy in the U.S. It informs about the significant changes in the consumer bankruptcy introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 including incorporation of an ability-to-pay test as a requirement for getting the benefits of the act. It reviews the Catholic social teaching related to the interrelationship between the dignity of man and his rights and duties to promote justice and the common good.

Still Chasing Chimeras But Finally Slaying Some Dragons In The Quest For Consumer Bankruptcy Reform, 25 Loy. Consumer L. Rev. 1 (2012), Jason Kilborn

UIC Law Open Access Faculty Scholarship

Consumer bankruptcy systems in Europe and the United States have witnessed especially robust and dynamic development during the past decade. The ever-rising volume of seeking entry to these systems now allows for cross-systemic comparisons of substantially differing “markets” for the relief that these systems offer. In particular, the distinct trend toward greater efficiency seen in other financial markets can be increasingly observed in most consumer bankruptcy regimes, with some notable exceptions. In this context, market performance can be gauged in part by the degree to which systems offer efficient and effective relief as a stimulus to deploying available debtor resources …

The Bankruptcy Of D & K Aviation, T J. Hatter, Maurice Echols, Michael Mason

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Solyndra, Brandon Brewer, Matthew Kinsey, Anthony Mendenhall

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

Articles by Maurer Faculty

In recent years, nonprofit entities increasingly have sought bankruptcy protection. Though the Bankruptcy Code does not prevent nonprofits from reorganizing, Chapter 11 was designed for and applies best to for-profit businesses. This creates challenges for courts evaluating a nonprofit’s reorganization plan. This Article focuses on one crucial aspect of a court’s evaluation — the fair and equitable standard, a necessary, but not sufficient condition of which is satisfaction of the absolute priority rule.

The few courts addressing absolute priority claims in nonprofit reorganizations have held that the rule is categorically inapplicable to nonprofit entities except in limited circumstances. These courts …

The New Danger Of Being Fired: Section 525(B)’S Disproportionate Effect On Older Workers And A Call To Amend, Jina Kim Yun

Northwestern Journal of Law & Social Policy

This Note explores an increasingly perverse effect of an anti-discriminatory provision of the Bankruptcy Code on numerous Americans who have declared personal bankruptcies after the recent economic recession of 2007. Under § 525(b) of the Bankruptcy Code, a private employer is not prohibited from barring a former debtor from prospective employment based on a past insolvency. This provision has had an immense impact on the large number of former debtors seeking the fresh start that bankruptcy law is meant to provide. With the dramatic increase in the number of personal bankruptcies, this Note argues that such an impact is overly …

Improving Bankruptcy Sales By Raising The Bar: Imposing A Preliminary Injunction Standard For Objections To § 363 Sales, Matthew A. Bruckner

Catholic University Law Review

No abstract provided.

The Scorecard So Far: Emerging Issues In Cross-Border Insolvencies Under Chapter 15 Of The U.S. Bankruptcy Code, Megan R. O'Flynn

Northwestern Journal of International Law & Business

Chapter 15 of the U.S. Bankruptcy Code was modeled after the Model Law on Cross-Border Insolvency, drafted by the United Nations Commission on International Trade and Law (UNCITRAL) in 1997. Despite the relatively small number of cases commenced in U.S. Courts under Chapter 15 since its adoption, no other section of the current Bankruptcy Code has broader implications for international business transactions and global foreign business relations than the provisions of Chapter 15. Moreover, since the United States has long been an innovator at the forefront of international insolvency law, interpretation of key provisions of the Chapter and related UNCITRAL …

Sec V. Byers, David M. Brown

NYLS Law Review

No abstract provided.

Hamilton V. Lanning: The Economic Implications Of Forecasting A Debtor's Disposable Income, Tracy L. Leyba

Journal of Business & Technology Law

No abstract provided.

The Case For Value Billing In Chapter 11, Nancy B. Rapoport

Scholarly Works

This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.

Misbehavior And Mistake In Bankruptcy Mortgage Claims: Some Caveats Regarding The Porter Study, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This Article reviews the comprehensive empirical study of the bankruptcy mortgage foreclosure process conducted by Professor Katherine Porter and subsequently published in 2008 in the Texas Law Review. The results of her study, which analyzed 1,768 proof of claim submissions filed in a sample of 1,733 Chapter 7 bankruptcy proceedings, strongly suggest that there is a pervasive failure on the part of mortgage creditors to meet all of the formal documentation requirements for filing such bankruptcy claims. This documentation failure arguably impedes many mortgage debtors or bankruptcy trustees from reviewing these claims for their accuracy.

Porter's conclusion that the itemization …

On The Edge Of The 'Fiscal Cliff': How The American Middle Class And Gobal Economy Bear Risk, Steven A. Montalto

Public Interest Law Reporter

No abstract provided.

Marital Property Annotated Bibliography, Nancy Levit

Faculty Works

This bibliography covers law review articles published, for the most part, after 2007. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

Economic Integration: An American Solution To The Multinational Enterprize Group Conundrum, Robert W. Miller

Richmond Journal of Global Law & Business

No abstract provided.

Welcome, Robert Schapiro

Emory Bankruptcy Developments Journal

To mark the occasion of the Emory Bankruptcy Developments Journal Ninth Annual Symposium, Dean Robert Schapiro gave a rousing welcome to the audience and highlighted the Stern v. Marshall case that is being presented in one the symposium panels.

The Effect Of Franchisor Bankruptcy On Executory Supply Contracts: Does The Franchisee Have A Remedy?, Matthew J. Burne

Barry Law Review

No abstract provided.

Godzilla Lives! Or, Nonrecourse Carveouts Run Amok, Marshall E. Tracht

Articles & Chapters

The author of this article discusses two recent cases which deal with unconditional liability on nonrecourse carveouts and spring-ing guaranties. One potential consequence of these decisions: by essentially converting these contingent guaranties to unconditional guaranties, the threat of springing liability disappears and the guaranties cease to have deterrent effects. If the guarantor is li-able whether or not the single purpose entity files for bankruptcy, why not file? The result is likely to be bankruptcy filings and other "misbehavior" by borrowers. Moreover, the analysis used in these cases would put many performing loans into default along with triggering recourse, threatening substantial …

Can A Secured Creditor Be Denied The Right To Credit Bid When The Creditor’S Collateral Is Sold Pursuant To A Chapter 11 Plan Of Reorganization?, Marshall E. Tracht

Articles & Chapters

CASE AT A GLANCE

A bankruptcy plan can only be confirmed over the objection of a secured creditor if the plan is found to be “fair and equitable.” The fair and equitable standard requires, at a minimum, that (i) the creditor may retain its lien on its collateral; (ii) the collateral will be sold subject to the creditor’s right to credit bid its debt; or (iii) the creditor will receive the “indubitable equivalent” of its claim. The Supreme Court must decide whether a plan can provide for the sale of collateral without granting the creditor the right to credit bid …

Constitutional Gaps In Bankruptcy, S. Todd Brown

Journal Articles

Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …

For Richer Or Poorer: The Defense Of Marriage Act's Waning Legitimacy In Bankruptcy Court, Colin M. Bowes

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

To Kill A Mockingbird Mediator?: Assessing The Need For Third-Party Neutrals In Federal Bankruptcy Courts' Home Foreclosure Avoidance Programs, Lancelot L. Esteibar

Cardozo Journal of Conflict Resolution

This Note proceeds in four parts. First, Part I provides background information on the mortgage crisis, the loss mitigation processes, and current federal, state, and bankruptcy court programs aimed towards preventing foreclosure. Second, Part II describes the role of a mediator and the process of mediation. Third, Part III examines barriers to effective negotiation and why mediators can assist in overcoming those obstacles in the bankruptcy courts' loss mitigation programs. Finally, Part IV offers an alternative to the direct negotiation model prescribed by the S.D.N.Y., E.D.N.Y., and D.R.I. loss mitigation programs.

Abuse, Mediation And The Catholic Church: How Enforcing And Improving Existing Statutes Will Help Victims Recover, Jeffrey Pruzan

Cardozo Journal of Conflict Resolution

Allegations of sexual abuse at the hands of religious figures is an epidemic that has spread throughout the United States and abroad.' In the United States alone, U.S. bishops have reported receiving allegations of abuse committed by 6,115 Catholic priests, or 5.6 percent of the 109,694 active U.S. priests since 1950. The U.S. bishops also reported receiving allegations from 15,235 victims, or 2.6 victims per priest; however, this figure is universally acknowledged to be low. Some estimates put the number of victims in the United States at over 280,000.

Undo Undue Hardship: An Objective Approach To Discharging Federal Students Loans In Bankruptcy, Aaron N. Taylor

All Faculty Scholarship

A debtor seeking to discharge student loans in bankruptcy must prove that paying the debt would cause an undue hardship upon him and his dependents. Undue hardship, however, is an undefined concept, flummoxing debtors, creditors and judges alike. The result of this ambiguity is rampant inconsistency in the manners in which similarly-situated debtors (and creditors) are treated by the courts. This article argues that the undue hardship standard should be replaced by a framework that uses debt service thresholds to determine the propriety of federal student loan bankruptcy discharges. Eligibility for discharge would depend on outstanding loan amounts, debtor income …

The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts

Scholarship@WashULaw

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts, not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking. Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with the …

Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …

Forward Contracts Preference Exception Broadly Construed, Brian King

Bankruptcy Research Library

(Excerpt)

Derivative transactions and financial contracts are a critical component of the United States economy. There are three main types of derivative contracts executed in our markets: futures, options and forward contracts. Each of these instruments derives value from an underlying security or resource with focus on a possible change in its future value. These instruments can be used as speculative investments, as hedges on securities already owned, or as a means of mitigating risk on volatility within a specific industry. An essential attribute of trading in these derivatives is “the ability of the parties to value their transaction on …

Bankruptcy Courts’ Power To Recharacterize Debt Claims As Equity, David Saponara

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code enables bankruptcy courts to take certain measures to facilitate the claims process and priority system. For example, section 502(b)(1) enables bankruptcy courts, upon objection, to disallow creditors’ claims based on applicable law or an agreement between the creditor and the debtor, and section 510(c) enables bankruptcy courts to equitably subordinate claims of creditors that engaged in inequitable conduct such that subordination would be appropriate to remedy any injury suffered by another creditor. Whether bankruptcy courts may recharacterize debt claims as equity, however, is not explicitly addressed in the Bankruptcy Code. Because of this, recharacterization analysis has …