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Articles 1021 - 1050 of 1300
Full-Text Articles in Bankruptcy Law
The Priority Of Postpetition Retainers, Carve-Outs, And Interim Compensation Under The Bankruptcy Code, Criag B. Cooper
The Priority Of Postpetition Retainers, Carve-Outs, And Interim Compensation Under The Bankruptcy Code, Criag B. Cooper
Cardozo Law Review
Although attorneys are specifically granted an administrative expense priority pursuant to section 507(a)(1) of the Bankruptcy Code ("Code"), other creditors might have even higher priorities. Three such examples come to mind. First, if a secured creditor has been promised adequate protection of its collateral which subsequently fails, the secured party is given a higher priority under section 507(b). Second, a debtor-in-possession ("DIP") under the authority of section 364(c)(1) may grant to a postpetition lender a higher priority than the one provided in section 507(a)(1). Third, if a Chapter 11 case is converted to Chapter 7 the fate of 90 percent …
The Continuing Puzzle Of Collective Bargaining Agreements In Bankruptcy, Daniel Keating
The Continuing Puzzle Of Collective Bargaining Agreements In Bankruptcy, Daniel Keating
William & Mary Law Review
No abstract provided.
Bankruptcy Judges, United States Trustees, And Family Farmer Bankruptcy Act Of 1986, Moussa Ismael Abojhanim
Bankruptcy Judges, United States Trustees, And Family Farmer Bankruptcy Act Of 1986, Moussa Ismael Abojhanim
LLM Theses and Essays
The Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, enacted as Public Law No. 99-554, introduced Chapter 12 to the Bankruptcy Code specifically aimed at providing debt relief to family farmers. This thesis explores providing debt relief to family farmers. It also explores the background leading to the enactment of Chapter 12, including the economic challenges faced by American family farmers in 1970s and 1980s. Additionally, it discusses the legislative history, congressional response, and the provisions of Chapter 12, noting its advantages over chapter 11 and 13 for family farmers in reorganizing their finances and maintaining …
Debtor Protection At The Close Of The Twentieth Century, Douglass Boshkoff
Debtor Protection At The Close Of The Twentieth Century, Douglass Boshkoff
Articles by Maurer Faculty
No abstract provided.
Turning And Turning In The Widening Gyre: The Problem Of Potential Conflicts Of Interest In Bankruptcy, Nancy B. Rapoport
Turning And Turning In The Widening Gyre: The Problem Of Potential Conflicts Of Interest In Bankruptcy, Nancy B. Rapoport
Scholarly Works
This article is the first in a series of articles discussing the problem of conflicts of interest in bankruptcy cases. It argues that the traditional means for discovering and handling conflicts of interest - based on state-law ethics rules - fundamentally misconceives the problem in a bankruptcy context. State law ethics rules presume that the parties are always in static positions; in bankruptcy law, alliances shift all the time. The article proposes a possible method of handling potential conflicts of interest in bankruptcy cases.
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Cleveland State Law Review
This paper focuses on the use of carryforwards in a bankruptcy situation. In particular it examines the economic implications of Treasury Regulation § 1.269-3(d), which was finalized on January 6, 1992. This regulation creates a presumption that if the acquirer of a loss corporation does not continue the corporation's business, the transaction was consummated for tax avoidance purposes. Therefore under § 269, which limits use of NOLs after an acquisition, the loss corporation's NOLs cannot be used by the acquirer. This presumption, however, can be overcome by strong evidence that other motives controlled the decision.
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Continuity Of Business Requirements For N.O.L.S. In Bankruptcy: The Economic Effects Of 1.269-3(D), Terrence R. Chorvat
Cleveland State Law Review
This paper focuses on the use of carryforwards in a bankruptcy situation. In particular it examines the economic implications of Treasury Regulation § 1.269-3(d), which was finalized on January 6, 1992. This regulation creates a presumption that if the acquirer of a loss corporation does not continue the corporation's business, the transaction was consummated for tax avoidance purposes. Therefore under § 269, which limits use of NOLs after an acquisition, the loss corporation's NOLs cannot be used by the acquirer. This presumption, however, can be overcome by strong evidence that other motives controlled the decision.
The Rehnquist Court, Strict Statutory Construction And The Bankruptcy Code, Carlos J. Cuevas
The Rehnquist Court, Strict Statutory Construction And The Bankruptcy Code, Carlos J. Cuevas
Cleveland State Law Review
This article analyzes the Rehnquist Court's use of strict statutory construction. It will argue that strict statutory construction can be justified under public choice and agency theories of statutory interpretation, and that strict construction promotes the implementation of bankruptcy policy. Strict statutory construction, moreover, is beneficial because it produces reliability and predictability, which is essential to our dynamic economy. The use of strict statutory construction precludes a court from relying on legislative history to manufacture the result that the court thinks is the best solution to the problem. Another justification for strict statutory construction is that it prevents bankruptcy judges …
What Is Right About Bankruptcy Law And Wrong About Its Critics, Samuel Bufford
What Is Right About Bankruptcy Law And Wrong About Its Critics, Samuel Bufford
Faculty Scholarship
My comments in this paper focus on the papers in thus Symposium by Professors Barry Adler, James Bowers, and Philippe Aghion, Oliver Hart, and John Moore. I argue that the central points of these papers are gravely mistaken because they completely misunderstand the character of the bankruptcy caseload and procedures, they ignore some important purposes of bankruptcy reorganization, and they misstate the success rate for reorganizations. I have chosen these papers for comment for two reasons: they recommend radical changes in bankruptcy law, and they are based on the thinnest knowledge of bankruptcy practice. Incidentally, they also all take an …
Joint Tax Return Liability And Bankruptcy, Ann F. Thomas
Joint Tax Return Liability And Bankruptcy, Ann F. Thomas
Other Publications
No abstract provided.
Of Hotel Revenues, Rents, And Formalism In The Bankruptcy Courts: Implications For Reforming Commercial Real Estate Finance, R. Wilson Freyermuth
Of Hotel Revenues, Rents, And Formalism In The Bankruptcy Courts: Implications For Reforming Commercial Real Estate Finance, R. Wilson Freyermuth
Faculty Publications
This article is intended to continue the dialogue begun by the proposed Restatement and has two distinct goals in this effort. Parts I through III argue that the position of the Restatement drafters is both legally and functionally sound and that bankruptcy courts should embrace and apply the proposed Restatement in administering distressed real estate developments. Part I reviews the reasoning articulated in the hotel bankruptcy cases, demonstrating how courts have applied the provisions of the Bankruptcy Code and state law in a formalistic manner to extinguish the hotel mortgagee's lien upon postpetition room revenues. Part II rejects the analysis …
Determining Interest And Discount Rates Applicable To Secured Claims In The Specter Of Bankruptcy Law, Aneel M. Pandey
Determining Interest And Discount Rates Applicable To Secured Claims In The Specter Of Bankruptcy Law, Aneel M. Pandey
San Diego Law Review
This Article formulates a basic framework to determine interest and discount rates applicable to secured claims in bankruptcy. It reviews the function of the interest rate from a macroeconomic perspective. The time value of money concept is explained, showing that the later a cash flow comes in time, the less it is worth. The treatment that debtors and creditors receive during the gap period (the time between the filing of the bankruptcy petition and the confirmation of the plan) is evaluated by examining how courts have struggled with the Bankruptcy Code to award post-petition interest. The author concludes by developing …
Organizational Form, Misappropriation Risk, And The Substantive Consolidation Of Corporate Groups, Christopher W. Frost
Organizational Form, Misappropriation Risk, And The Substantive Consolidation Of Corporate Groups, Christopher W. Frost
Law Faculty Scholarly Articles
The financial collapse of a corporation raises significant questions regarding its shareholders and creditors' ex ante allocation of the risk that such a collapse might occur. In bankruptcy, most of these risk allocation issues relate to the priority of particular creditors' claims against the assets of the failed business. But determining priority first requires some reasoned means of identifying the assets against which creditors may assert their claims. In many cases, this question is simply one of locating and distributing assets. However, when bankrupt firms have conducted their operations through a complex web of subsidiary corporations, each holding distinct assets …
Wysko Investment Company V. Great American Bank: A New Attack On The Usefulness Of Letters Of Credit, Robert Jay Gavigan
Wysko Investment Company V. Great American Bank: A New Attack On The Usefulness Of Letters Of Credit, Robert Jay Gavigan
Northwestern Journal of International Law & Business
The letter of credit has long been accepted as a valuable instrument of assured payment in international business. In Wysko Investment v. Great American Bank, however, an Arizona district court jeopardized the usefulness of the letter of credit transaction by enjoining payment to the beneficiary after the issuing party became insolvent.' This note addresses the issue of whether a bankruptcy court has the power to enjoin payment of a letter of credit issued by the debtor's principal, pursuant to 11 U.S.C. § 105(a), when the court finds the injunction necessary for the debtor's reorganization. Further, this note examines whether such …
Shareholder Control Rights In Bankruptcy: Disassembling The Withering Mirage Of Corporate Democracy, Thomas G. Kelch
Shareholder Control Rights In Bankruptcy: Disassembling The Withering Mirage Of Corporate Democracy, Thomas G. Kelch
Maryland Law Review
No abstract provided.
The Attack On Chapter 11, Douglass G. Boshkoff
The Attack On Chapter 11, Douglass G. Boshkoff
Articles by Maurer Faculty
No abstract provided.
Setoff And Bankruptcy, Lawrence Kalevitch
Setoff And Bankruptcy, Lawrence Kalevitch
Cleveland State Law Review
The code treats liens and setoffs as secured claims. A lienor under §506 receives a secured claim in the face amount of the debt secured only if the collateral has at least that value. Section 506(a) requires collateral valuation to determine the amount of the secured claim. Setoff in the face amount of a creditor's claim likewise requires valuation. Part II discusses §506(a) and §553 and how they may limit, in appropriate cases, the setoff right to less than the face amount of a creditor's claim. Part II shows that this reading of the Bankruptcy Code is not only consistent …
In Re Grabill Corporation: Another No For Jury Trials In The Bankruptcy Courts, William J. Delany
In Re Grabill Corporation: Another No For Jury Trials In The Bankruptcy Courts, William J. Delany
Villanova Law Review (1956 - )
No abstract provided.
Revising Article 9 To Reduce Wasteful Litigation, James J. White
Revising Article 9 To Reduce Wasteful Litigation, James J. White
Articles
For reasons that are unclear to me, the committees reviewing the articles of the Uniform Commercial Code and drafting revisions are congenitally conservative. Perhaps these committees take their charge too seriously, namely, to revise, not to revolutionize. Perhaps their intimate knowledge of the subject matter exaggerates the importance of each section and consequently magnifies the apparent size of every change. In any case, my own experience with two such committees tells me that the members quickly become focused on revisions and amendments that any outsider would describe as modest. To the extent that the revision of any of the articles …
Bankruptcy And Subleases: The Depravity Of Privity, Rhonda S. Berliner
Bankruptcy And Subleases: The Depravity Of Privity, Rhonda S. Berliner
Cardozo Law Review
No abstract provided.
Offensive Uses Of The Bankruptcy Stay, Daniel Keating
Offensive Uses Of The Bankruptcy Stay, Daniel Keating
Vanderbilt Law Review
One of the most significant features of the 1978 Bankruptcy Reform Act was markedly broadened versions of the automatic and postdischarge stays. If bankruptcy is the refuge for the honest but unfortunate debtor,' then the stay is the specific tool that makes the refuge meaningful. Indeed, more than one court has characterized the stay as a shield that gives the corporate debtor an opportunity to reorganize and affords the individual debtor a chance for the proverbial fresh start. Even courts mindful of the debtor-protection function of the stay, however, are careful to note that the debtor should use the stay …
What Do You Mean My Partnership Has Been Petitioned Into Bankruptcy?, Karen E. Blaney
What Do You Mean My Partnership Has Been Petitioned Into Bankruptcy?, Karen E. Blaney
Fordham Urban Law Journal
Bankruptcy law regarding partnerships differs from the law pertaining to individuals and corporations. Only a partnership can be involuntarily petitioned into bankruptcy by individuals within the organization. Involuntary petitions can be used by general partners as bargaining chips, and may encourage partners who can personally benefit from filing to do so, even if the act would be detrimental to the partnership. Under present bankruptcy law, an involuntary petition may be commenced against a partnership by fewer than all of the general partners in such partnership. In comparison to prior bankruptcy provisions governing a partner's involuntary petition against the partnership, the …
"Reasonable Expectations" Define Board Power To Liquidate A Solvent Close Corporation In Bankruptcy, Shelby D. Green
"Reasonable Expectations" Define Board Power To Liquidate A Solvent Close Corporation In Bankruptcy, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
This Article will argue that, in the absence of contrary provisions in the articles of incorporation, the power of the board of directors of a solvent close corporation to file a voluntary petition for liquidation in bankruptcy must be determined by the theory of “reasonable expectations.” This doctrine not only addresses wrongdoing by those in control, but also defines the power and rights of close corporation participants. Part II briefly considers the uses of bankruptcy in recent years and comments on the peculiar occasion of a solvent corporation deciding to liquidate in bankruptcy. Part III summarizes the facts and identifies …
Why Have Chapter 11 Bankruptcies Failed So Miserably? A Reappraisal Of Congressional Attempts To Protect A Corporation's Net Operating Losses After Bankruptcy, Michelle A. Cecil
Why Have Chapter 11 Bankruptcies Failed So Miserably? A Reappraisal Of Congressional Attempts To Protect A Corporation's Net Operating Losses After Bankruptcy, Michelle A. Cecil
Faculty Publications
This Article will first outline the history of judicial and statutory limitations on the free transferability of net operating losses, highlighting congressional attempts to afford more favorable treatment to troubled corporations reorganizing in Title 11 proceedings. It will then examine the operation of section 382 of the 1986 Code, again focusing on those provisions designed to assist in the successful reorganization of these corporations, and will demonstrate the wholesale inability of these provisions to preserve the net operating losses of troubled corporations. Finally, the Article will propose an amendment to section 382 that would increase the likelihood that corporations will …
Running The Asylum: Governance Problems In Bankruptcy Reorganizations, Christopher W. Frost
Running The Asylum: Governance Problems In Bankruptcy Reorganizations, Christopher W. Frost
Law Faculty Scholarly Articles
Like much of life, the study of bankruptcy is the study of leverage. Chapter 11 of the United States Bankruptcy Code may be appropriately described as providing a framework within which interested parties may negotiate solutions to the problems facing a troubled company. The allocation of leverage to the negotiating parties is critical to the ultimate outcome of the process. In any negotiation setting control over the bargaining process is a key item of leverage. This Article proposes a framework for analysis and suggests solutions to the problem of control over corporations during the pendency of a Chapter 11 reorganization …
Erisa: Anti-Alienation Superiority In Bankruptcy, George Lee Flint Jr
Erisa: Anti-Alienation Superiority In Bankruptcy, George Lee Flint Jr
Faculty Articles
Both ERISA and the Bankruptcy Code consider the issue of debtor-participant’s interest in certain pension trusts when an action has been undertaken against the bankrupt debtor participant’s estate. Many jurisdictions have offered conflicting views on the handling of the interest. These conflicts create litigious interpretation and choice of law problems and place plan administrators at risk for breach of fiduciary duty depending on jurisdictional interpretation. Paying-out a bankruptcy trustee’s turnover demand could affect the tax qualified status of the pension plan, thereby hurting all plan participants. ERISA’s preemption provision was drafted to create uniformity among the states in interpreting employee …
Bankruptcy-Based Discrimination, Douglass G. Boshkoff
Bankruptcy-Based Discrimination, Douglass G. Boshkoff
Articles by Maurer Faculty
No abstract provided.
Premerger Review And Bankruptcy: The Meaning Of Section 363(B)(2), Robert B. Greenbaum, Alan J. Meese
Premerger Review And Bankruptcy: The Meaning Of Section 363(B)(2), Robert B. Greenbaum, Alan J. Meese
Popular Media
No abstract provided.
Developments In Trading Claims And Taking Control Of Corporations In Chapter 11, Chaim J. Fortgang, Thomas Moers Mayer
Developments In Trading Claims And Taking Control Of Corporations In Chapter 11, Chaim J. Fortgang, Thomas Moers Mayer
Cardozo Law Review
No abstract provided.
Claims And Control In Chapter 11 Cases: A Call For Neutrality, Herbert P. Minkel Jr., Cynthia A. Baker
Claims And Control In Chapter 11 Cases: A Call For Neutrality, Herbert P. Minkel Jr., Cynthia A. Baker
Cardozo Law Review
No abstract provided.