Bankruptcy Law Commons^™

Tightenting The Loophole: The Role Of Fee-Shifting Statutes In Resolving The Growing Problem Of Servicing America's Student Loan Debt, Katheryn E. Marcum

West Virginia Law Review

No abstract provided.

Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings

Nevada Supreme Court Summaries

The Court, sitting en banc, reviewed a certified question from the United States Bankruptcy Court, determining that under NRS 21.010(1)(u) a debtor is entitled to a personal injury exemption of $16,150 for each personal injury claim.

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

Bankruptcy: Where Attorneys Can Lose Big Even If They Win Big, Stanislav Veyber

Brooklyn Journal of Corporate, Financial & Commercial Law

Historically, bankruptcy attorneys received the short end of the stick and were paid less for their services than attorneys in other fields of law. With the Bankruptcy Reform Act of 1978, Congress attempted to reduce the discrepancy in compensation. However, after the Supreme Court’s decision in Baker Botts v. ASARCO; L.L.C., the playing field remains unequal for bankruptcy attorneys. Following this decision, if a debtor disputes their attorney’s fee application, attorneys are at a disadvantage and cannot recover fees for defending their fee application. As a result, bankruptcy attorneys take an effective pay cut if they are faced with a …

Robbing Your Rival's Piggybank: The Third Circuit Affirms Bad Faith Dismissals In Involuntary Bankruptcies After In Re Forever Green Athletic Fields, Inc., Nathan L. Rudy

Villanova Law Review (1956 - )

No abstract provided.

Brief For Professors, Czyzewski V. Jevic Holding Corp. As Amicus Curiae, Laura Spitz

Faculty Scholarship

We urge that the decision of the Circuit Court should be affirmed because Petitioners were not injured or prejudiced by the settlement--they are not worse off than if the settlement had been rejected. Aside from that, the remaining issue is whether the bankruptcy court had discretion to approve the instant settlement even though it did not strictly follow the priority rule. We believe that the courts correctly decided not to apply the absolute priority rule under the circumstances of this case. We urge that the Rule need not be followed by a bankruptcy court in approving a settlement. Alternatively, if …

Student Loans And Surmountable Access-To-Justice Barriers, Jason Iuliano

Florida Law Review

Findings and conclusions from the 2012 American Bankruptcy Law Journal Study and Response to Professor Rafael I. Pardo’s latest piece, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy.

Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell

Georgia Journal of Law & Technology

No abstract provided.

Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye

Law Faculty Scholarly Articles

In 2013, the City of Detroit filed the largest municipal bankruptcy action in United States history, affecting about $20 billion in municipal debt. Unusually, Detroit owned its municipal art museum, the Detroit Institute of Arts (“DIA”) and all of the works of art in the DIA collection, which were potentially worth billions of dollars. Detroit’s creditors wanted Detroit to sell the DIA art in order to satisfy its debts. Key to the confirmation of Detroit’s plan of adjustment was the DIA settlement, under which Detroit agreed to sell the DIA art to the DIA corporation in exchange for $816 million …

Taking Bankruptcy Rights Seriously, Rafael I. Pardo

Washington Law Review

Perhaps more so than any other area of law affecting individuals of low-to-moderate means, bankruptcy poignantly presents an affordability paradox: the system’s purpose is to relieve individuals from financial distress, yet it simultaneously demands a significant commitment of resources to obtain such relief. To date, no one has undertaken a comprehensive study of the complexities and costs of the litigation burden that Congress has imposed on self-represented debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that sometimes necessitates litigation as the path for vindicating a debtor’s statutory right to a …

Till V. Scs Credit Corporation: A "Prime-Plus-Plus" Method Tilling Courts To Consider Efficient Market Evidence, Emma J. Guido

Cardozo Law Review

No abstract provided.

Ten Years After Consumer Bankruptcy Reform In The United States: A Decade Of Diminishing Hope And Fairness, Robert J. Landry Iii

Catholic University Law Review

The tenth anniversary of the effective date of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Reform Act), the largest reform to the consumer bankruptcy in the United States in a quarter of a century, will be marked in October of 2015. Prior to, and since its passage, scores of scholars have theorized about the impact of the Reform Act. The vast majority of research since its passage shows that the Reform Act has not had a long-term impact on filing rates. With this backdrop, the paper explores how the virtues of fairness for creditors and hope for individuals …

Brief For Amici Curiae Law Professors In Support Of Petitioners, In Re Jevic (Czyzewski V. Jevic Holding Corp.), Melissa B. Jacoby, Jonathan C. Lipson

Faculty Publications

Question Presented:

Whether a bankruptcy court may approve a contested settlement agreement that distributes assets in violation of the Bankruptcy Code’s statutory priority rules and that departs from long-held absolute priority principles underlying the American bankruptcy system.

From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski

Barry Law Review

No abstract provided.

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.

Tower Homes V. Heaton, Nev. Adv. Op. 62, (Aug. 12, 2016), Sydney Campau

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that granting creditors control over a debtor’s legal malpractice claim and any proceeds resulting from the action constituted an improper assignment of a legal malpractice claim that was contrary to public policy.

Creditor Claims For Postpetition Attorneys' Fees Incurred In Bankruptcy Litigation And The Role Of State Law, Laith Hamdan

Cardozo Law Review

No abstract provided.

Bankruptcy, John T. Laney Iii, Nicholas J. Garcia

Mercer Law Review

This Article is a review of bankruptcy opinions issued in 2015 by the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the district courts and bankruptcy courts within the Eleventh Circuit. This Article covers issues regarding the following bankruptcy topics: lien stripping, exemptions, fraudulent transfers, the discharge injunction, executory contracts, and conversion.

Randomly Distributed Trial Court Justice: A Case Study And Siren From The Consumer Bankruptcy World, Gary G. Neustadter

Faculty Publications

Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage's acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or improvement of California residential …

Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier

Pepperdine Law Review

When bankruptcy courts attempt to define the business trust, the “decisions are sharply, and perhaps hopelessly, divided.” The Bankruptcy Code, which guides the determinations of bankruptcy courts, specifically lists business trusts as eligible for protection. However, the Code does not define what a business trust is and does not list any criteria for determining when a trust is a business trust. The lack of a concrete definition has led many courts to formulate their own definitions of business trusts. While the courts hoped that they would eventually settle on a uniform test to tackle this issue, it has yet to …

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to …

Pari Passu As A Weapon And The Changes To Sovereign Debt Boilerplate After Argentina V. Nml, David Newfield

University of Miami Business Law Review

The pari passu clause is found in nearly every sovereign debt contract issued throughout the globe. In the private context, this clause is well understood to ensure fair distributions to all creditors in the event of bankruptcy and liquidation. As insolvency distributions are not an option when dealing with distressed sovereign debt, the rights and duties associated with this clause have been subject to extensive litigation for over 20 years.

Starting from the case of Elliot v. Peru, in the early 1990s, and more recently in Argentina v. NML, courts have interpreting these bonds, governed subject to New York law, …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

University of Cincinnati Law Review

No abstract provided.

Overcoming Hurdles In The Enforceability Of Make-Whole Provisions, Brian Patrick Mcbride

University of Miami Law Review

There have been recent conflicting decisions in U.S. district courts of New York, Delaware, and others states regarding to the enforceability of make-whole provisions in bankruptcy. The ambiguity created by the courts’ decisions has caused uncertainty for all parties involved in these kinds of loan documents. This comment is an analysis of the enforceability of make-whole provisions in the context of bankruptcy in light of the recent decisions. In order for a makewhole or a no-call provision to be upheld, a number of hurdles must be cleared. The provisions must be valid under both state law and bankruptcy law. Make-whole …

No Misrepresentation Needed: Excepting Discharge For Actual Fraud Under 11 U.S.C. § 523 Without Misrepresentation, Morgan Green

Fordham Law Review

Imagine buying a game from a seller and promising to repay him at a later date. However, instead of repayment, you decide to give the game to your friend, who in turn allows you to use it. Then your friend declares bankruptcy to discharge the price of the game from his debts, thus allowing you both to use it without paying. This repayment runaround is the issue that the First and Fifth Circuits were asked to decide in two recent cases. Specifically, the question was whether a debt incurred by “actual fraud” may be discharged by the recipient of the …

Up The Chute, Down The Ladder: Shifting Priorities Through Structured Dismissals In Bankruptcy, Bethany K. Smith

Fordham Law Review

In a structured dismissal of a Chapter 11 bankruptcy case, a bankruptcy court approves case dismissal alongside a stakeholder agreement as to the manner in which the estate is to be dealt with once the case has been dismissed. Such orders are controversial in that they are not explicitly authorized through the U.S. Bankruptcy Code (“the Code”) and are especially controversial where the accompanying agreement seeks to distribute estate property in contravention of the priority scheme laid out in § 507 of the Code. Where the agreement violates this so-called waterfall payment method, bankruptcy courts are faced with difficult questions: …

Courts And Sovereigns In The Pari Passu Goldmines, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly concluding that pari passu promised ratable payment to all holders of Peru’s external debt. A decade …

"No Harm, Still Foul": Unharmed Creditors And Avoidance Of A Debtor's Pre-Petition Transfer Of Exemptible Property, Alyssa Pompei

St. John's Law Review

(Excerpt)

This Note sides with the “no harm, no foul” approach in this debate, arguing that bankruptcy courts should not avoid prepetition transfers of otherwise exempt property under § 548 simply because an exemption was not actually taken and the transfer was instead the alternative path used to shield the property from collection. Part I of this Note explains the constructive fraud and exemption provisions of the Bankruptcy Code, including state opt-out provisions which are particularly applicable to this issue. Part I also discusses the legislative history of federal bankruptcy law with particular focus on the creation of the Bankruptcy …