Bankruptcy Law Commons^™

Including Retirement Benefits In A Debtor's Bankruptcy Estate: A Proposal For Harmonizing Erisa And The Bankruptcy Code, Michelle A. Cecil

Faculty Publications

This Article first examines the conflicting policies of ERISA and the Bankruptcy Code. It then explores how the various courts have attempted to reconcile these policies when faced with the issue of whether a debtor's interest in retirement plan assets should be available for distribution to creditors in bankruptcy. In analyzing the relevant case law, the Article examines cases addressing the exclusion issue (whether pension plans should be excluded from the bankruptcy estate entirely). It also evaluates cases addressing the exemption issue (whether plan assets, once included in the bankruptcy estate, can be exempted out of the estate by the …

Tolerance: The Bridge Between Religious Liberty And Privacy, David Rudenstine

Cardozo Law Review

No abstract provided.

"Consecutive" Chapter 11 Filings: Use Or Abuse?, Jonathan Moss

Fordham Urban Law Journal

This Note argues that bankrtupcy courts should apply a good faith standard that imposes a higher level of scrutiny before permitting a debtor to proceed with a second filing and plan. This Note proceeds to analyze the good faith standards for consecutive Chapter 11 petitions established in different jurisdictions. This Note then proceeds to explore the threat consecutive provisions pose to the Bankruptcy Code's lease and executory contract provisions. This Note then analyzes how consecutive filings can undermine the Code's basic creditor protections, and concludes that courts should apply a rigorous good faith standard consistent with recent decisions from the …

An Economic Justification For Corporate Reorganizations, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Use Of Ohio's Preference Law In Bankruptcy: An Alternative To Section 547 With A Longer "Reach-Back" Period, Thomas D. Buckley

Law Faculty Articles and Essays

Ohio is one of the few states with a preference law of general application among its debtor-creditor statutes. Ohio Revised Code sections 1313.56 and 1313.57 give creditors an avoidance power similar to a bankruptcy trustee's avoidance power under federal bankruptcy law. While this article compares the federal and state preference rules, evaluating the pratical significance of the differences between them, the relative strength of the two laws is less important than the fact that the bankruptcy trustee can choose whichever of the two laws is more effective with respect to any given prebankruptcy transaction. Thus, both laws might be applied …

Insider Guaranties: Their Effect On The Bankruptcy Preference "Reach Back" Period And Possible Use In Getting An "Ordinary Course" Exception Avoidance, Thomas D. Buckley

Law Faculty Articles and Essays

In 1990 the Sixth Circuit decided two bankrupcty preference cases, Ray v. City Bank & Trust Co. (In re C-L Cartage Co.) ("Cartage") and Gosch v. Burns (In re Finn) ("Finn"), that will have important consequences in the administration of bankruptcy proceedings and will also influence the way lenders and borrowers do business with each other in the future, whether or not a bankruptcy ever ensues. This article first describes briefly the mechanics of preference law and the application of it in Cartage and Finn. The article then focuses primarily on the Cartage decision, because the analytic approach taken by …

Owners, Auctions, And Absolute Priority In Bankruptcy Reorganizations, Bruce A. Markell

Articles by Maurer Faculty

No abstract provided.

The Implementation Of Bankruptcy Code Section 707(B): The Law And The Reality, Wayne R. Wells, Janell M. Kurtz, Robert J. Calhoun

Cleveland State Law Review

The introduction of section 707(b) to the bankruptcy code has raised many difficult interpretational issues. This article focuses on those issues concerning the implementation of section 707(b). Under the law, only the courts and the U.S. Trustees are permitted to raise the issue of substantial abuse. Therefore, to determine how section 707(b) is actually being administered, a survey was distributed to the U.S. Bankruptcy Courts and the U.S. Trustees. The results of the survey are integrated into a discussion of the current status of the law and presented in this article. This analysis identifies serious shortcomings with the law that …

Rotten To The "Core": An Essay On Juries, Jurisdiction And Granfinanciera, G. Ray Warner

Faculty Publications

(Excerpt)

Like a worm in an apple, the recent Granfinanciera, S.A. v. Nordberg decision has eaten away the article III heart of the current bankruptcy jurisdictional scheme while leaving nothing more than a seventh amendment blemish on the surface.

Granfinanciera ostensibly involves only the question whether Congress may, consistent with the seventh amendment jury trial guarantee, bar trial by jury in a fraudulent conveyance action brought in the bankruptcy court. The Court, however, converts the issue into an article III delegation question by equating Congress' power to override the seventh amendment with its power to delegate matters to non-article III …

Public Policy Concerns Prevent Application Of Comity To Foreign Bankruptcy Proceedings That Discriminate Against Tax Obligations Owed To The United States Government, Michael P. Bigelow

Vanderbilt Journal of Transnational Law

This Case Comment explores the application of comity to foreign bankruptcy proceedings, particularly when comity would render the Internal Revenue Service a general unsecured creditor in bankruptcy. The United States Court of Appeals for the Fifth Circuit held on public policy grounds that comity should not be accorded to a Luxembourg bankruptcy proceeding that discriminated against tax obligations owed to the United States government. This Case Comment discusses the factual setting for the instant decision and presents a brief history of transnational insolvency law. The author finds that the law of transnational insolvency is inconsistent and underdeveloped and that the …

United States Government Contract: The Unilateral Act Of Government Contracting, Sawvalak Chulpongstorn

LLM Theses and Essays

The debarment, suspension, and termination of the Government contract can cause a sudden financial ruin or bankruptcy of the contractor. Consequently, the question of whether the Government’s debarment, suspension, and termination is proper can be of vital importance. This thesis, in consequence, will focus on two major problem areas of the unilateral act of the government in contracting with the contractor. The first problem area is whether the debarment and suspension meet the requirement of due process of law. The second problem area is whether or not the government’s right to terminate the contract is proper or legal in specific …

Absolute Priority And New Value, James J. White

Articles

This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …

Editor's Notes, Peter A. Alces

Faculty Publications

No abstract provided.

Stockbroker Liquidations Under The Securities Investor Protection Act And Their Impact On Securities Transfers, Michael E. Don, Josephine Wang

Cardozo Law Review

No abstract provided.

Trading Claims And Taking Control Of Corporations In Chapter 11, Chaim J. Fortgang, Thomas Moers Mayer

Cardozo Law Review

No abstract provided.

An Individual Debtor’S Right To Avoid Liens Under Section 506(D) Of The Bankruptcy Code, Tracy Springer

Cardozo Law Review

No abstract provided.

Suretyship As Adequate Protection In Bankruptcy: The Status Of Unsecured Third Party Guaranties Under Section 361 Of The Bankruptcy Code, Stephen A. Weiss

Cardozo Law Review

No abstract provided.

Forms, Charles M. Yablon

Cardozo Law Review

No abstract provided.

"Killing The Husband": Disallowing Contingent Claims For Contribution Or Indemnity In Bankruptcy, Donald R. Korobkin

Cardozo Law Review

No abstract provided.

The Exclusivity Period In Section 1121: How Exclusive Is It, Ross L. Weston

Cardozo Law Review

No abstract provided.

Good Faith And Chapter 13 Discharge: How Much Discretion Is Too Much?, Ellen M. Horn

Cardozo Law Review

No abstract provided.

Bankruptcy Law - Pennsylvania Housing Finance Agency May Discontinue Emergency Mortgage Assistance Payments To Recipients Who File For Bankruptcy, Richard Ruffee

Villanova Law Review (1956 - )

No abstract provided.

Does Payment By Check Constitute A Transfer Upon Delivery Or Payment?, Kenneth D. Ferguson

Faculty Works

The inherent delay between delivery and a check's payment is significant in determining whether the transfer occurs upon delivery or payment of the check. A dilemma is created if a check is received on the 93rd day before the debtor's bankruptcy petition is filed, but payment occurs on the 89th day before the petition is filed. When is the transfer of funds considered to have occurred for the purpose of determining whether the payment is avoidable as a preference, on the 93rd or 89th day before the petition was filed?

The first section of this article analyzes of the legal …

International Environmental Bankruptcy: An Overview Of Environmental Bankruptcy Law, Including A State's Claims Against The Multinational Polluter, Rick M. Reznicsek

Vanderbilt Journal of Transnational Law

This Note focuses on current environmental bankruptcy law in the United States. It analyzes the claims of a state against a corporate polluter when the corporation discharges a toxic substance in violation of the state's environmental laws, refuses to clean up the waste, and then files bankruptcy in lieu of paying for the cleanup.

This Note analyzes the court decisions subsequent to the United States Supreme Court opinions in Ohio v. Kovacs and Midlantic National Bank v. New Jersey Department of Environmental Protection to evaluate the current status of United States bankruptcy law on the issues of the automatic stay; …

Bankruptcy Law - Third Circuit Requires Strict Compliance With Thirty Day Rule In Section 362(E) Of Bankruptcy Code And Bankruptcy Rule 4001(B), Albert A. Ciardi Iii

Villanova Law Review (1956 - )

No abstract provided.

Re Sefel Geophysical Ltd.: A Canadian Approach To Some Specific Problems In The Adjudication Of International Insolvencies, Sarah K. Harding

Dalhousie Law Journal

The collapse of a corporation which carries on business and trade on an international scale, usually spawns an array of legal disputes and presents some unique problems in the conflict of laws.1 Unlike a private commercial contractual dispute in which the competing interests are primarily, although rarely solely, defined by the parties themselves, bankruptcy law is infused with an element of public policy. The fact that bankruptcy legislation sets out a scheme of priorities and explicitly provides the basis upon which a court may assume jurisdiciton to declare a bankruptcy and appoint a trustee, is in itself an indication of …

The Collapsed Leveraged Buyout And The Trustee In Bankruptcy, James F. Queenan Jr.

Cardozo Law Review

Leveraged buyouts bring about concentration of a corporation's ownership in the hands of a few stockholders. This permits the stockholders to control the corporation with the incentive to operate it efficiently in order to realize the entire profit for themselves. Such a joinder of control and ownership, however, is produced at great cost to the corporation, which provides most of the funds used to purchase the stock from the selling shareholders. There is, therefore, the danger of prejudice to a non-stockholder constituency-the corporation's creditors, employees, customers, and the community in which it is located. It is the thesis of this …

Equitable Distribution Requires Equitable Valuation: A Proposal For Amending New York's Equitable Distribution Law, Jacqueline B. Stuart

Cardozo Law Review

No abstract provided.

Why The Bankruptcy Course Ought To Be Mandatory, Morris G. Shanker

Journal of Legal Education

No abstract provided.

Bankruptcy As An Alternative To The Statute Of Limitations For Relief From Overdue Income Taxes, Harold E. Wolfe Jr.

Akron Tax Journal

This article analyzes the situations in which a bankruptcy filing could be used as an alternative to the expiration of the statute of limitations on collections and sets forth various considerations that should be reviewed by the practitioner prior to a bankruptcy filing. Practitioners are cautioned that there are many collateral consequences resulting from a taxpayer's bankruptcy petition filing and each case must be analyzed carefully in light of the interplay of the Bankruptcy Code, the Internal Revenue Code and the sparse case law available in this area.