Bankruptcy Law Commons^™

The Debtor’S Absolute Right To Dismiss A Chapter 13 Case, Jared Brady

Bankruptcy Research Library

(Excerpt)

Under section 1307(b) of title 11 of the United States Code (the “Bankruptcy Code”), a debtor has an absolute right to dismiss a Chapter 13 bankruptcy case. A bankruptcy case may be voluntarily filed under any chapter so long as the individual is eligible to be a debtor under the chapter selected. Section 1307(b) requires the court, on request of the debtor, to dismiss a Chapter 13 case if the case has not already been converted from Chapter 7 or Chapter 11.

This memorandum addresses a debtor’s right to dismiss a Chapter 13 case in three sections. Section one …

Enforcing Make Whole Premiums In Bankruptcy, Brian P. Campbell Jr.

Bankruptcy Research Library

(Excerpt)

A debt instrument typically has two components: principal and interest. The lender usually has some expectation in receiving a certain amount of interest over the life of a loan. The borrower may in many instances reduce the amount of the interest paid by pre-paying the loan in full prior to maturity. In certain instances, a lender will protect its interest recovery by including a “make whole premium” (“MWP”) in the loan. When borrowings are either paid back early or are accelerated forward by a default, MWPs provide for the payment of an additional amount by the borrower to “compensate …

Qualifications And Standards: What Courts Require To Hold A Statement As A Judicial Admission, Lianna Murphy

Bankruptcy Research Library

(Excerpt)

Judicial admissions are factual statements made by a litigant in their pleadings that become binding throughout a case. Judicial admissions serve an important function by foreclosing an admitting party from later disputing such fact or making a statement inconsistent with the admission. It is therefore necessary to distinguish between the types of statements courts will hold as judicial admissions and those they will not.

Recently, the Second Circuit expanded upon existing precedent to clarify that judicial admissions must be “deliberate, clear, and unambiguous,” adopting language already embraced by other circuits. This memorandum will explore the factors that a court …

Bankruptcy Debtor Eligibility For Federal Coronavirus Aid Under The Cares Act, Meghan Paola

Bankruptcy Research Library

(Excerpt)

In March of 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) to provide assistance to individuals and businesses affected by the Covid-19 pandemic. The Paycheck Protection Program (the “PPP”) was established under section 7(a)(36) of the Small Business Act to provide economic relief in the form of loans to small businesses negatively impacted by Covid-19. The CARES Act tasks the Small Business Administration (the “SBA”) with administering the PPP loans.

The PPP application form provides that a loan will not be approved if an applicant is “presently involved in any bankruptcy.” However, debtors …

Financial Advisory Firms Whose Affiliate’S Employees Served As Independent Officers Or Directors Of The Debtor Prepetition Should Be Retained Under Section 327(A) Of The Bankruptcy Code, Lauren Jusas

Bankruptcy Research Library

(Excerpt)

The retention of financial advisors by chapter 11 debtors must be approved by a bankruptcy court. Currently, debtors may file employment applications for financial advisors, whose affiliate’s employees, prepetition, served as a chief restructuring officer (“CRO”), under two different sections of title 11 of the United States Code (the “Bankruptcy Code”). Under section 327(a), financial advisors must satisfy a stringent two-part test to be approved. Alternatively, financial advisors may seek approval under section 363(b) pursuant to the J. Alix Protocol, a national settlement protocol developed by the United States Trustee Program (the “USTP”). Since its inception, the J. Alix …

Mandatory Abstention Is Required When Foreign Law Claims Are Brought In Conjunction With State Law Claims, Matthew Seymour

Bankruptcy Research Library

(Excerpt)

When a case is wrongfully removed from state court, mandatory abstention provides moving parties with a way to remand their non-core claims. 28 U.S.C. § 1334(c)(2) provides the framework for a motion that would require a federal district court to abstain. Congress enacted the statute to allow a party to litigate state claims in state court when the case was only removed to federal court because of its relation to a bankruptcy case. The case law interpreting the statute has created a five-step test to determine when mandatory abstention is required. The Third Circuit in Stoe articulated that:

upon …

Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, 86 Brooklyn Law Review ____ (Forthcoming 2021) (Co-Authored With Tim Wadsworth), Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth

Sturm College of Law: Faculty Scholarship

As is well-known, the Affordable Care Act (“ACA”) is an incredibly hot political issue across the country. The ACA was originally proposed in large measure due to the destruction that outstanding medical bills can have on family finances. Most of the existing legal scholarship on medical debt and bankruptcy over the past forty years has tried to answer the question of what percentage of bankruptcy filings are “medical bankruptcies.” To date, this effort has proven inconclusive.

In this Essay, we ask a much more timely and substantive question, namely, what is the relationship between possessing health insurance and the risk …

Better Than A Discharge, David G. Epstein, Tevin Bowens

Law Faculty Publications

"“It’s the Cadillac of . . .” Chilli Palmer. Traditionally, discharge has been regarded as the “Cadillac” of success in bankruptcy. Getting a discharge is as good as it can get.

When an individual debtor files for Chapter 7 or Chapter 13 and receives a discharge then, in the language of the South, the attorney for that individual has “done good.” Or, in more academic verbiage, the lawyer has achieved Chapter 7 and Chapter 13’s “end goal.” Similarly, if a business entity files for Chapter 11 and its plan is confirmed which triggers a discharge, the attorney for the business …

Corporate Restructuring Under Relative And Absolute Priority Default Rules: A Comparative Assessment, Jonathan M. Seymour, Steven L. Schwarcz

Faculty Scholarship

The European Union recently adopted a Restructuring Directive intended to facilitate the reorganization of insolvent and other financially troubled firms. Although the central goal of the Directive parallels that of chapter 11 of U.S. bankruptcy law—to protect and maximize the value of financially distressed but economically viable enterprises by consensually reorganizing their capital structure—the Directive introduces an innovative but controversial option: that EU Member States can decree that reorganization negotiations should be subject to a relative priority default rule, in contrast to the type of absolute priority default rule used by chapter 11. EU officials argue that relative priority is …

The Settlement Trap, Lindsey Simon

Scholarly Works

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, …

A New Approach To Executory Contracts, John A.E. Pottow

Book Chapters

Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under section 365 of the Bankruptcy Code. The case law is "hopelessly convoluted" and a "bramble-filled thicket." While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law and commentary, all would agree Jay Westbrook has been at the modern vanguard of this Sisyphean task. (1 assign Westbrook to the "modern" forefront, thereby relegating Vern Countryman, whose legacy in this domain rightly persists, to the annals of history, choosing as my perhaps arbitrary dividing line the adoption …

Bad Business, Bumble Bee And Bankruptcy, Andrew Gaither, Michael Trotter, William Salisbury

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Consumer Bankruptcy And Race: Current Concerns And A Proposed Solution, Edward J. Janger

Faculty Scholarship

No abstract provided.

Bankruptcy, Honorable Harlin D. Hale, Grayson W. Williams

SMU Annual Texas Survey

This article is a survey of relevant developments in bankruptcy law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Postpetition Proceeds Of Exempt Interests In Property – Who Owns The Appreciation?, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Raw And Pure Education In The Society, Iwasan D. Kejawa

Department of Educational Administration: Dissertations, Theses, and Student Research

What does education mean to individuals in the world today? Education is a way one can attain or improve his or her ability to lead and survive in the society of ours. Without educational training of the mind, it may be impossible to realize the importance of adaptability of living in the environment. Without education, It may also be difficult to embellish the use of both the mental and physical attributes possessed by individual beings.

What really is education? Education is the training of the mind to perform desire functions or to perpetuate the modality of obtaining an end or …

Emerging Circuit Split Over Modification Of Mortgages On Multi-Use Real Properties, Michal Zabadal

Fordham Journal of Corporate & Financial Law

For many decades, healthy levels of residential mortgage loans (“RMLs”) and their regulation have been among the major drivers of the economy. Because of the importance of RMLs for the condition of the national financial system and the general well-being of the society, it is essential that lenders are reasonably incentivized to originate these loans. A well-designed promise of higher recovery on RMLs in times of distress can be a compelling motivator. The Bankruptcy Code seeks to deliver on that promise by treating RMLs more favorably. It does that by barring the debtor-in-bankruptcy from modifying a claim secured by a …

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

Scholarly Works

This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Debt’S Emotional Encumbrances, Pamela Foohey

Scholarly Works

This chapter focuses on the role of emotions in the theory and practice of commercial and consumer credit laws, including bankruptcy, in the United States. It assesses knowledge about people’s emotions regarding personal and business financial problems, and evaluates how “money law” systems account for these emotions. This assessment finds that emotions surrounding taking on and being able to pay back debt differ between business leaders and people who shoulder household debt. These differences are traceable in large part to historical understandings of the respectability of incurring debt. This history has shaped the development of bankruptcy, commercial, and consumer credit …

In Re Kapsinow, 220 A.3d 1231 (R.I. 2019), Drew E. Bartlett

Roger Williams University Law Review

No abstract provided.

Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq.

Touro Law Review

No abstract provided.

Private Equity & Industries In Transition: Debt, Discharge & Sam Gerdano, Edward J. Janger

Faculty Scholarship

No abstract provided.

Enterprise Group Restructuring: Dutch Options And United States Enforcement, G. Ray Warner, Michael Veder

Faculty Publications

On 1 January 2021 the Dutch Wet Homologatie Onderhands Akoord, also referred to as the Dutch scheme, entered into force. The Dutch scheme represents a robust restructuring framework that incorporates many of the main restructuring concepts from both the English scheme of arrangement and US chapter 11. It also adds a few new restructuring tools that will make it easier to restructure enterprise group debt by expressly providing that a restructuring plan may include the release of group guarantees and by adopting liberal jurisdictional rules that should permit proceedings to be opened in the Netherlands for all members of …

Providing Relief After A Natural Disaster Through Credit Reports, Katherine Wecker

Seattle University Law Review

The COVID-19 pandemic forced the world to re-think systems that have been in place for decades, quickly adapting—at least temporarily— to the new normal. Among those systems was the credit reporting system. In response to the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act; an act that, among other things, amends the Fair Credit Reporting Act in regard to how credit reporting agencies should respond to delinquencies resulting from the pandemic.

This Note argues that to adapt to the increasing occurrence of natural disasters, the U.S. government must implement a system in which a consumer can …

On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo

Scholarship@WashULaw

As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered …

Racialized Bankruptcy Federalism, Rafael I. Pardo

Scholarship@WashULaw

Notwithstanding the robust national power conferred by the U.S. Constitution’s Bankruptcy Clause, the design and administration of federal bankruptcy law entails choices about the extent to which non-bankruptcy-law entitlements will remain un-displaced. When such entitlements sound in domestic nonfederal law (i.e., state or local law), displacing them triggers federalism concerns. Considerations regarding the relationship between the federal government and the nation’s smaller political subdivisions might warrant preserving nonfederal-law entitlements even though their displacement would be authorized pursuant to the bankruptcy power. But such considerations might also suggest replacing those entitlements with bankruptcy-specific ones. Some scholarship has theorized about the principles …

Policy Considerations Regarding Student Loan Debt And Higher Education, Todd R. Niemczyk Esq.

UNF Graduate Theses and Dissertations

Within the last 30 years, the policy considerations regarding student loan debt and higher education have become a series of strong opinions, heated debate, and partisan politics. Key stakeholders including the United States Government, both for-profit and traditional higher- educations institutions, financial organizations, special interest groups, and students all have interests. More so, all branches of Government, the Legislative, Judicial, and Executive, are areas where policy is both born and challenged. Some are aligned, and some are competing such that crafting sound policy regarding the lending and management of student loan debt has created a difficult situation that may well …

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron Ament, Daniel Zibel

Scholarly Works

Our nation’s consumer bankruptcy system supposedly gives “honest but unfortunate” individuals “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Access to bankruptcy’s discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase consumer bankruptcy filings. The people who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes. Student loan borrowers will find a system with even more …

The Growth Of Vancouver As An Innovation Hub: Challenges And Opportunities, Camden Hutchison, Li-Wen Lin

All Faculty Publications

This article assesses the development of Vancouver as an entrepreneurial region. Using data collected from commercial startup databases, we find that Vancouver produces more startups and receives more venture capital financing per capita than any other major Canadian city. However, we also find that Vancouver lags many U.S. cities on these same metrics. In light of our empirical findings, we explore whether differences in entrepreneurial activity between Canada and the United States are due to differences in the countries’ legal environments. We conclude that legal differences do not explain observed economic disparities, and that differences in entrepreneurial activity are due …