Bankruptcy Law Commons^™

(Part 2) Chapter 7 Cases: Do Erisa And The Bankruptcy Code Conflict As To Whether A Debtor's Interest In Or Rights Under A Qualified Plan Can Be Used To Pay Claims, Donna Litman

Faculty Scholarship

No abstract provided.

Article Iii And The "Related To" Bankruptcy Jurisdiction: A Case Study In Protective Jurisdiction, Thomas C. Galligan, Jr.

Seattle University Law Review

Section II of this paper briefly sets out the jurisdictional scheme of the 1984 Act. Section III presents and describes the argument that the "related to" bankruptcy jurisdiction is unconstitutional. Statements in the legislative history indicate that some legislators believed it would be unconstitutional for a federal court to take jurisdiction in a non-diversity case with Marathon-type state law issues. Several cases have adopted this reasoning and have held that in order for a federal court to have "related to" bankruptcy jurisdiction there must be an independent basis for federal jurisdiction. The Supreme Court cases supporting "related to" jurisdiction are …

Basics Of Business Reorganization In Bankruptcy, Steven L. Schwarcz

Faculty Scholarship

In this article, Steven Schwarcz offers an overview of Chapter 11 bankruptcy. In addition to beginning a Chapter 11 case, he also discusses administration of these cases and the plan of reorganization that a debtor must consider.

Bankruptcy Law - Rejection Of Collective Bargaining Agreements - Section 1113 Of 1984 Bankruptcy Amendments Permits Rejection Of Collective Bargaining Agreements Only If Debtor's Proposed Modifications To Agreement Are Necessary To Prevent Liquidation And Treat All Affected Parties Fairly And Equitably, Pamela A. Casey

Villanova Law Review (1956 - )

No abstract provided.

United States Judicial Assistance In Cross-Border Insolvencies, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Taking From Farm Lenders And Farm Debtors: Chapter 12 Of The Bankruptcy Code, James J. White

Articles

In passing Chapter 12 of the Bankruptcy Reform Act, Congress has effectively invalidated certain important provisions of existing farm mortgages. Equally significant, Congress has disabled farmers from granting binding mortgages on the full, value of their property. Although no court is likely to find the Chapter to violate the fifth amendment, the Chapter constitutes a substantial and retroactive alteration of the rights of existing mortgagees and a restriction on the powers of prospective mortgagors to grant valid mortgages. The thesis of this paper is that Congress was both wrong and shortsighted in its enactment of Chapter 12. Congress was wrong …

Bankruptcy Valuation Under Selected Liquidation Provisions, Steven L. Pottle

Vanderbilt Law Review

Chapter 7 of the Bankruptcy Code' (the Code) serves a distributive function; it is designed to distribute equitably a debtor's assets from the bankruptcy estate to creditors. All nonexempt as-sets owned by a debtor at the time of filing a petition for bankruptcy become part of the bankruptcy estate and subsequently are distributed to creditors. Generally, debtor transactions prior to the filing escape the purview of Chapter 7. If, however, a debtor distributes assets during the applicable statutory period, giving preference to some creditors' or defrauding other creditors,' the Code empowers the bankruptcy trustee to avoid those transfers.After filing, a …

Rejection Of Computer Software Licensing Agreements In Bankruptcy, Viktoria L. Gres

Cardozo Law Review

No abstract provided.

Preemption Of State Law Notice Provisions Governing The Recovery Of Attorneys' Fees By Section 506(B) Of The Bankruptcy Code, R. Wilson Freyermuth

Faculty Publications

This note provides a framework for courts and attorneys faced with the issue whether section 506(b) preempts state law notice provisions. The note studies the language and legislative history of section 506(b), pointing out the inconsistencies and ambiguities that make it difficult to determine congressional intent. The note then surveys the various rationales advanced by the lower courts in resolving this issue. Using the recent Fourth Circuit case of Unsecured Creditors' Committee v. Walter E. Heller & Co. to illustrate several of these rationales, the note suggests that a more consistent approach to this issue is needed. After examining the …

The Availability Of Injunctions In Bankruptcy To Restrain Collection Of I.R.C. 6672(A) Penalties, Beth K. Neelman

Cardozo Law Review

No abstract provided.

Torts - Joint Tortfeasors - Release In Favor Of Joint Tortfeasor Who Files Petition In Bankruptcy Before Paying Agreed Settlement Will Be Applied As Pro Rata Reduction Of Plaintiff's Judgment Against Nonsettling Joint Tortfeasors, Lisa A. Demarco

Villanova Law Review (1956 - )

No abstract provided.

The Automatic Stay In Bankruptcy, John Francis Murphy

Cleveland State Law Review

This article describes the automatic stay in bankruptcy proceedings. Section I explains the purpose of the automatic stay, lays out the history and scope of the stay, and lists parties that can be protected by the stay. Section II briefly describes how the scope of the automatic stay may be increased by a party’s motion, under 11 USC 105(A). Section III discusses the effects of violations of the stay, and gives remedies for such violations. Section IV gives a detailed explanation of possible modifications of the automatic stay, as well as how it may be terminated. Finally, Section V rounds …

The Enterprise Bankruptcy Law Of The People's Republic Of China (For Trial Use): A Translation, Henry R. Zheng

Vanderbilt Journal of Transnational Law

Art. 1. This law is enacted to meet the need for development of the planned socialist commodity economy and for economic reform, to promote the independence of business management of the enterprises under the ownership by the whole people, to strengthen the system of economic responsibility and democratic management, to improve business management and economic performance, and to protect the lawful rights and interests of debtors and creditors. Art. 2. This law applies to enterprises under the ownership of the whole people.

Art. 3. Enterprises that sustain serious loss due to inappropriate management and that are unable to pay off …

Case Comment, Laura F. Howard

Vanderbilt Journal of Transnational Law

SCOPE OF REVIEW IN EXTRADITION PROCEEDINGS: The Government Cannot Appeal A Denial of Extradition Request Based on the Declaratory Judgment Act --United States v. Doherty, 786 F.2d 491 (2d Cir. 1986).

BANKRUPTCY--Section 304 Of The Bankruptcy Code Is Not An Exclusive Remedy In A Nonbankruptcy Court, Cunard Steamship Co.Ltd. v. Salen Reefer Serv. A.B., 773 F.2d 452 (2d Cir. 1985).

Timing Of Payments By Check Under Section 547 Of The Bankruptcy Code, Azita Gorton

Cardozo Law Review

No abstract provided.

The Outer Limits Of Section 542 Of The Bankruptcy Code: United States V. Whiting Pools, Inc., Revisited, Craig S. Provorny

Cardozo Law Review

No abstract provided.

Toxic Torts And Chapter 11 Reorganization:The Problem Of Future Claims, Anne Hardiman

Vanderbilt Law Review

Recently, the toxic tort phenomenon has emerged as a vital concern to manufacturers, employers, and consumers as Agent Orange,' DES, Dalkon Shield, and asbestos victims have litigated toxic tort claims. Toxic torts are unique because any number of victims may be exposed to a toxic substance from which they may contract a disease as far as twenty years in the future. Toxic tort claims typically involve large sums of money and an inestimable number of plaintiffs. The potential for tremendous, financially crippling, liability for these injuries has prompted some asbestos companies to file for reorganization under Chapter 11 of the …

Erisa Retirement Plans In Individual Bankruptcy, John Minton Newell

University of Michigan Journal of Law Reform

When an employee covered by an ERISA retirement plan files a petition in bankruptcy, the court is presented with a number of complex issues regarding the relationship among ERISA, the Bankruptcy Code (Code), and the state law of creditors' rights. Three issues have emerged in these cases, and the courts have divided on the proper resolution of each of these issues. First, is the debtor's interest in an ERISA retirement plan "property of the estate," and thus available for distribution to creditors? Second, if the debtor's interest is property of the estate, and the debtor uses the state exemption scheme, …

The Concept Of A Voidable Preference In Bankruptcy, Vern Countryman

Vanderbilt Law Review

A bankruptcy trustee is armed by statute with a number of powers to avoid prebankruptcy transfers made by the now bankrupt debtor. Probably none of these powers is of more concern to prebankruptcy transferees than the trustee's power to avoid preferential transfers. This Article examines the content of and the reasons for the concept of a preferential transfer as it has evolved over the centuries.We inherited the notion of the preferential transfer from Eng-land; but, as elsewhere, we frequently have concluded that we could improve on the English model. Substantial differences exist,therefore, between the English law of voidable preferences and …

Belly Up Down In The Dumps: Bankruptcy And Hazardous Waste Cleanup, Katherine S. Allen

Vanderbilt Law Review

In recent years, the critical risks of improper storage and disposal of hazardous and toxic substances have become frighteningly apparent,' and the regulation of hazardous waste disposal has become increasingly comprehensive and complex, on both the federal and state level. On the federal level, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Super fund Act) together provide a comprehensive statutory and regulatory scheme designed to cleanup existing hazardous waste disposal sites and to prevent the growth of future dangerous sites. Other federal statutes address in a more general way …

Insolvencies In Farming And Agribusinesses, Stewart E. Bland

Kentucky Law Journal

No abstract provided.

Is An Ira Exempt Property Under The Kentucky Exemption Statute Krs Section 427.150(1)(B)?, Kevin Charles Dicken

Kentucky Law Journal

No abstract provided.

Marshaling Assets In Bankruptcy: Recent Innovations In The Doctrine, Moses Lachman

Cardozo Law Review

No abstract provided.

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Duress is Available Defense in Mitigation of Charges of Illegally Transporting Aliens into the United States--Pollgreen v. Morris slip op. No. 84-5217 (11th Cir. Sept. 17, 1985).

Foreign Debtor not Compelled to File for Ancillary Proceeding under Bankruptcy Code; Court may grant Comity to Pending Foreign Bankruptcy Proceeding--Cunard SteamshipCo. Ltd. v. Salen Reefer Services A.B., 773 F.2d 452 (2d Cir.1985).

Forum Selection Clause in Contract between Two Sovereigns is not Waiver of Right to Remove--Proyecfin de Venezuela v. Banco Industrial de Venezuela, 760 F.2d 390 (2d Cir.1985).

Fifth Circuit Overrides Admiralty Rule and Invokes Provisions of Arbitration Treaty--Sedco, Inc. v. …

Standby Letters Of Credit And Fraud (Is The Standby Only Another Invention Of The Goldsmiths In Lombard Street?), John F. Dolan

Cardozo Law Review

No abstract provided.

Chapters 11 And 13 Of The Bankruptcy Code--Observations On Using Case Authority From One Of The Chapters In Proceedings Under The Other, David G. Epstein

Law Faculty Publications

This Article will focus on the relationship between Chapter 11 and Chapter 13 of the Bankruptcy Code. A number of issues are similar or identical in Chapter 11 and Chapter 13. Furthermore, much of the language of Chapter 13 mirrors that of Chapter 11. This Article explores whether courts should apply case law and concepts of one chapter when similar issues arise in proceedings under the other chapter. Parts II and III of this Article address basic similarities and differences between Chapters 11 and 13. Parts IV, V, and VI examine three issues governed by statutory language common to both …

The Preemption Of Bankruptcy-Only Exemptions, Joseph Lamport

Cardozo Law Review

No abstract provided.

The Voidability Of Security Interests In Tax Refunds Under Section 547 Of The Bankruptcy Code, Howard Kern

Cardozo Law Review

No abstract provided.

Tacking A True Course For Maritime Liens On Freight, Uriel P. Bauer

Cardozo Law Review

No abstract provided.

Garnishment Payments: Voidable Preferences In Bankruptcy?, Susan J. Samuels

Cardozo Law Review

No abstract provided.