Bankruptcy Law Commons^™

The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson Iii, Joshua A. Esses

Emory Bankruptcy Developments Journal

The purpose of this Article is to summarize the current state of the law regarding appellate standing in bankruptcy appeals within the various sister circuit courts of the United States, and to recommend how the law of appellate review of bankruptcy court orders should be applied. We will begin with a purely descriptive summary of the law of standing in federal courts and of standing to appeal orders of bankruptcy courts specifically. From this discussion it should be clear that courts almost universally limit appellate standing of bankruptcy court orders to parties that can demonstrate that they are a person-aggrieved—in …

Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher

Emory Bankruptcy Developments Journal

Disability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply the federal and state …

List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos

Emory Bankruptcy Developments Journal

This Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test considers four …

The Crypto Quandary: Is Bankruptcy Ready?, Megan Mcdermott

Northwestern University Law Review

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard- hit businesses will need to reorganize to adjust to new conditions, while out- of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer …

Lessons Learned: Robert Hoyt, Esq., Yasemin Esmen

Journal of Financial Crises

Robert Hoyt was General Counsel at the U.S. Department of Treasury between 2006 and 2009. He oversaw legal aspects of policies implemented to manage the crisis, including the rescues of Bear Stearns, AIG, and the U.S. Auto industry, the conservatorship of Fannie Mae and Freddie Mac, and the failure of Lehman Brothers, as well as the creation and implementation of the Troubled Asset Relief Program (TARP.) This Lessons Learned is based on a phone interview with Mr. Hoyt.

The Rescue Of Fannie Mae And Freddie Mac – Module A: The Conservatorships, Daniel Thompson, Rosalind Z. Wiggins

Journal of Financial Crises

Two government-sponsored enterprises (GSEs), the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), dominated the secondary mortgage market during the US housing crisis, collectively holding or guaranteeing $5.3 trillion in mortgage assets by late 2007. As the crisis escalated, the two GSEs began to report substantial losses and their survival became uncertain. On September 6, 2008, the GSEs’ new regulator, the Federal Housing Finance Agency (FHFA), placed the firms into indefinite conservatorships, one step of a four-part government intervention to stabilize the enterprises. This case study evaluates the purpose and efficacy of the …

The Rescue Of American International Group Module F: The Aig Credit Facility Trust, Alec Buchholtz, Aidan Lawson

Journal of Financial Crises

In September 2008, American International Group, Inc. (AIG) experienced a liquidity crisis. To avoid the insurance giant’s bankruptcy, the Federal Reserve Bank of New York (FRBNY) extended an $85 billion emergency secured credit facility to AIG. In connection with the credit facility, AIG issued 100,000 shares of preferred stock, with voting rights equal to and convertible into 79.9% of the outstanding shares of AIG common stock, to an independent trust (the Trust) set up by the FRBNY. Three trustees held the stock for the sole benefit of the US Treasury, exercised the rights, powers, authorities, discretions, and duties of the …

The Rescue Of American International Group Module A: The Revolving Credit Facility, Alec Buchholtz, Aidan Lawson

Journal of Financial Crises

On September 15, 2008, the big three rating agencies downgraded AIG’s credit ratings multiple levels, exacerbating liquidity strains that the company was experiencing due to increasing cash demands by securities borrowers and collateral calls by credit default swap (CDS) customers. To prevent AIG from filing for bankruptcy, the Federal Reserve (the Fed) announced on the following day that, pursuant to its emergency powers, it would provide the company with an $85 billion Revolving Credit Facility (RCF). The RCF was secured by AIG assets and interests in its subsidiaries and required AIG to grant the US Department of the Treasury a …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

The Settlement Trap, Lindsey Simon

Indiana Law Journal

Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.

Setting aside the perceived unfairness of taking desperately needed money from tort victims, …

The “P” Isn’T For Privacy: The Conflict Between Bankruptcy Rules And Hipaa Compliance, Sophie R. Rogers Churchill

Washington and Lee Law Review

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) included a now-ubiquitous provision designed to protect the privacy of patients’ protected health information. The provision prohibits covered entities, including health care providers and their agents, from disclosing any demographic information that may identify a patient and that relates to that patient’s medical care. The provision is broad and can include such simple information as which doctor a patient consults or the date of a patient’s consultation with a physician.

Unfortunately, such protections become impracticable in the bankruptcy setting. When a health care provider files bankruptcy, it files a host …

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review (2017-Present)

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The Court …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Tinjauan Yuridis Mengenai Anjak Piutang: Studi Kasus Tentang Perjanjian Anjak Piutang Antara Pt. A Dengan Pt. B, Lina Novita B.

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Factoring in Indonesia is financing activity in the form of short-term trade receivables purchase a company including management of that receivables. This research is normative juridical research with descriptive conceptual approach. The result in this research is factoring agreement without cessie not void the agreement as long as all the parties include the investor known and agreed with that factory agreement however before the agreement have a notary deed, there is not a prestatie that appear from that agreement. Investo (debt recognition notes) issued by investor have not legitimate and it can not void the agreement because the recognition is …

I Declare Bankruptcy! Clearing The Jurisdictional Bar On Social Security Claims In Bankruptcy Courts, Elyce Ieyoub

Louisiana Law Review

The article explains the necessity for a legislative amendment to harmonize administrative law and bankruptcy jurisdiction on social security claims in the U.S.

Abandonment Of Contaminated Property Under The Bankruptcy Code--From Midlantic To In Re Smith Douglas, What Next?, Brian Cumbo

Journal of Natural Resources & Environmental Law

No abstract provided.

Event Program, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Emory Bankruptcy Developments Journal Workshop

March 12, 2021 10:00 a.m. - 3:15 p.m.

Emory University School of Law via Zoom

Workshop Invitation, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Friday, March 12, 2021 | 10:00 a.m. to 3:15 p.m. EDT

Emory Bankruptcy Developments Journal Workshop

This year, the EBDJ is publishing a special issue entitled the “Developments Issue” that will feature essays from some of the top bankruptcy scholars in the United States. In conjunction with the publication of this special issue, the Journal is hosting this workshop for authors to discuss their pieces and to take questions and comments from workshop attendees and fellow panelists.

Speakers include: Professor Laura Coordes, Professor Odette Lienau, Professor Anthony Casey, Professor Joshua Macey, Professor George Triantis, Professor Jared Ellias, and Professor Jay …

The Conflict Between Territorial And Universal Of Bankruptcy Orders, Abed Al-Monim Shawkat Zamzam

UAEU Law Journal

The financial crisis has affected investment projects all over the world. One of its repercussions was the bankruptcy of many multi-national companies. Law jurisprudence has split over the scope of recognition of bankruptcy orders issued in a foreign country. Some jurisprudence embraced the territoriality theory with regards to bankruptcy orders, so that such order does not have any legal effect in the territories other than the one in which it was issued. Others opine for the universality of the bankruptcy orders since the debtor has one patrimony, which should include all his rights and obligations. This article intends to study …

United States V. Whizco: Are Smcra Obligations Dischargeable Under The Bankruptcy Code?, Alfred L. Buchanan

Journal of Natural Resources & Environmental Law

No abstract provided.

Midlantic National Bank V. New Jersey Department Of Environmental Resources: Judicial Interpretation Or Judicial Legislation?, John Bell Whitesell

Journal of Natural Resources & Environmental Law

No abstract provided.

Is The Abandoned Mine Reclamation Fee Discharged In Bankruptcy?, Ann M. Catino

Journal of Natural Resources & Environmental Law

No abstract provided.

Appeal Against The Judgment Of Bankruptcy In Light Of The New Judicial Systems In The Kingdom Of Saudi Arabia, Ahmed Makhlouf Jr

UAEU Law Journal

This paper presents the challenge to the ruling of Bankruptcy This paper presents the challenges against the judgment of Bankruptcy in light of the new judicial systems in the Kingdom of Saudi Arabia, which has changed significantly the UK litigation system. Where was the creation of specialized courts, including commercial courts, the adoption of the principle of litigation on the two instances, and the establishment of the Supreme Court to monitor the proper application of the provisions of Shariaa and regulations (laws). Therefore, bankruptcy suits have become passed by two phases of litigation. The first instance in front of first-class …

Loopholes For The Affluent Bankrupt, David R. Hague

St. John's Law Review

(Excerpt)

Recent bankruptcy cases are exposing a problem. Affluent individuals filing for bankruptcy are treated more favorably under the Bankruptcy Code than those debtors with little to no means of financial sustenance or income. Did Congress intend this result? The legislative history is unclear. But one thing seems certain: The United States Bankruptcy Code contains a set of loopholes that appear to be designed for the well-to-do segment of society. Courts throughout the United States are either overlooking these provisions or simply condoning their utilization under the defensible conviction that the Bankruptcy Code permits it.

In this Article, I argue …

The Law Of Trusts And Collective Action: A New Approach To Property Deadlocks, Amnon Lehavi

University of Cincinnati Law Review

This Article identifies the key role that trust law can play in resolving collective action problems pertaining to assets with multiple stakeholders. Devising a multi-beneficiary trust may serve as an effective institutional alternative, when the direct governance of an asset by its co-owners reaches a deadlock, and the partition of the asset among them is either impractical or inefficient.

The Article examines various case studies in which property may become deadlocked among multiple stakeholders, featuring either commons or anticommons problems. In the case of land, the need to assemble land from multiple owners for (re)development, or the task of governing …

Bankruptcy & The Underwater Home: A Case For Real Property Redemption, David Sheinfeld

Michigan Business & Entrepreneurial Law Review

Chapter 7 of the U.S. Bankruptcy Code exists to satisfy the claims of creditors and preserve an economic “fresh start” for the debtor after bankruptcy. In exchange for surrendering her property to the trustee to have it monetized (i.e., sold), the debtor receives a discharge of her debts and an injunction against future creditor in personam actions to recover them. However, the in personam injunction is insufficient to protect consumer debtors who are in default on mortgages encumbering underwater homes because the creditor’s in rem rights remain; after the conclusion of the case, the creditor can continue foreclosure proceedings, which …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Purdue Pharma L.P.: A Bankruptcy Of Epidemic Proportion, Gary Brackett, Eric Salama

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Bankruptcy, Taxes, And The Primacy Of Irs Refund Offsets: Copley V. United States, Michelle Lyon Drumbl

Scholarly Articles

The Bankruptcy Code and the Internal Revenue Code (I.R.C.) are statutory labyrinths of federal law. Copley v. United States called on the Fourth Circuit to resolve a question that arose when respective provisions of each collided. At the heart of Copley was a married couple seeking a fresh start with an expected $3,208 income tax refund. The Copleys wished to resolve their outstanding debts in bankruptcy and maximize the relief afforded to them under the Virginia homestead exemption provision, as permitted by the Bankruptcy Code. On the other side of the proverbial table was the Internal Revenue Service (IRS) armed …

Keeping The Lights On Through Dark Times: How Subchapter V Bankruptcy Should Protect Small Businesses Decimated By The Pandemic, Daniel Lebrun

Touro Law Review

Small to mid-market, independent businesses are at the heart of our economy and play a pivotal role in job creation. While it’s estimated by the House of Representatives that these companies account for over half of overall U.S. employment, they have been traditionally underserved in bankruptcy law. Historically, the resources necessary to complete a chapter 11 bankruptcy are not within reach for these small to mid-market businesses. Passed in 2019, the Small Business Reorganization Act has modified the Bankruptcy Code to provide new avenues for these small businesses in need. Impactful in its own right, it has emerged as a …