Bankruptcy Law Commons^™

Fresh Start, False Start, Or Head Start?, Douglass Boshkoff

Indiana Law Journal

No abstract provided.

The Denial Of Future Tort Claims In In Re Piper Aircraft: Will The Court's Quick-Fix Solution Keep The Debtor Flying High Or Bring It Crashing Down?, Michelle M. Harner

Faculty Scholarship

No abstract provided.

Clueless On Classification: Toward Removing Artificial Limits On Chapter 11 Claim Classification, Bruce A. Markell

Articles by Maurer Faculty

No abstract provided.

Attorney's Fees In Chapter 11 Reorganization: A Case For Modified Procedures, Brenda Hacker Osborne

Indiana Law Journal

No abstract provided.

Property Of The Bankruptcy Estate After A Conversion From Chapter 13 To Chapter 7: The Need For A Definite Answer, Robert J. Volpi

Indiana Law Journal

No abstract provided.

Annual Survey Of Virginia Law: Bankruptcy Law, Michael A. Condyles

University of Richmond Law Review

This article is intended to advise the general practitioner of significant recent developments that have occurred in the bankruptcy area during the period April 1992 through April 1993. Virginia and federal decisions issued by the Court of Appeals for the Fourth Circuit involving bankruptcy related matters are the main focus of this article.

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 …

Environmental Impediments To Bankruptcy Reorganizations, James K. Mcbain

Indiana Law Journal

No abstract provided.

Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein

Law Faculty Publications

If the priorities provided by section 364(c) are insufficient to entice potential lenders to provide sufficient :financing to a Chapter 11 debtor, the debtor may, with the court's approval, obtain credit by granting the lender a lien on property of the debtor that is senior to existing liens on such property (a "priming lien"). The granting of such a priming lien, however, is subject to several statutory conditions. First, as with section 364(c), the debtor must prove that it cannot obtain credit on any less intrusive basis (i.e., through the use of section 364(a), (b), or (c)). Second, the debtor …

A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris

Michigan Law Review

This Note examines whether the new value exception remains part of the revised Bankruptcy Code. Part I discusses the background of the new value exception. Part II traces the development of the conflict concerning the survival of the new value exception subsequent to the adoption of the Code. It then discusses the Supreme Court's opinions in Mid/antic National Bank v. New Jersey Department of Environmental Protection and its progeny, which established the methodology for determining the impact of the revised Bankruptcy Code on preexisting bankruptcy law. Based on an analysis of the Midlantic doctrine, Part II concludes that Congress did …

Annual Survey Of Virginia Law: Bankruptcy Law, Michael A. Condyles

University of Richmond Law Review

This survey article reviews and analyzes legislative and judicial developments that have occurred in bankruptcy law between April 1989 and April 1991. This article intends to alert the general practitioner to significant recent developments in the bankruptcy area. The article focuses on legislative changes that have been made to the Bankruptcy Code and to Virginia statutory law, along with federal bankruptcy decisions issued within the Fourth Circuit. Where appropriate, Virginia state court cases dealing with bankruptcy issues are also addressed.

Adequate Protection And Administrative Expense: Toward A Uniform System For Awarding Superpriorities, Julia A. Goatley

Michigan Law Review

Part I of this Note reviews the legislative history of relevant Code sections and the Code language that pertain to the granting of adequate protection. Section 361 of the Code provides for three types of adequate protection. Sections 362, 363, and 364 set out instances when actions by the trustee that result in a decrease in the value of a secured party's interest require the provision of adequate protection. Finally, sections 503 and 507 designate circumstances when prepetition secured creditors are eligible to receive administrative expenses. Section 507(b) authorizes allowance of an administrative expense claim when the adequate protection provided …

Re-Vision Of The Bankruptcy System: New Images Of Individual Debtors, Karen Gross

Michigan Law Review

A Review of As We Forgive Our Debtors: Bankruptcy and Consumer Credit in American by Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrene Westbrook

Determining Whether Property Is Necessary For An Effective Reorganization: A Proposal For The Use Of Empirical Research, Charles Shafer

All Faculty Scholarship

The automatic stay is considered to be one of the most important provisions of the Bankruptcy Code for Chapter 11 debtors. It is the shield behind which the debtor may go about the process of reorganization using the mechanisms provided by the other sections of the Code. The stay permits a debtor the time to formulate a repayment or reorganization plan.

Resisting a challenge to the stay is, therefore, often crucial to the reorganizing debtor. By preventing the initiation or pursuit of legal action against a debtor, the stay allows the debtor to devote its limited time and resources to …

Has The Time Come To Repeal Chapter 13?, William C. Whitford

Indiana Law Journal

Symposium: As We Forgive Our Debtors

Women In Bankruptcy And Beyond, Zipporah Batshaw Wiseman

Indiana Law Journal

Symposium: As We Forgive Our Debtors

The Role Of Empirical Data In Developing Bankruptcy Legislation For Individuals, Marjorie L. Girth

Indiana Law Journal

Symposium: As We Forgive Our Debtors

Annual Survey Of Virginia Law: Creditors' Rights, Joseph E. Ulrich

University of Richmond Law Review

This article addresses developments in Virginia creditors' rights from April 1988 to April 1989. It is aimed at the non-specialist who nonetheless handles creditors' rights problems in practice. The following will describe the more important holdings and offer some comments about these holdings.

Toward True And Plain Dealing: A Theory Of Fraudulent Transfers Involving Unreasonably Small Capital, Bruce A. Markell

Articles by Maurer Faculty

No abstract provided.

Down And Out In Richmond, Virginia: The Distribution Of Assets In Chapter 7 Bankruptcy Proceedings Closed During 1984-1987, Michael J. Herbert, Domenic E. Pacitt

University of Richmond Law Review

An explosion of interest in the practical workings and economic significance of the bankruptcy system has, in recent years, led to many efforts to study that system through data other than that contained in reported cases. In some key respects, the mere articulation and analysis of legal rules is no longer satisfactory. Indeed, it has been argued that such analysis is sometimes scarcely relevant. This article is intended to add a little more information to that already compiled regarding the actual nature and function of modern American bankruptcy law. It further attempts to place this information into the context of …

Conversion Of Nonexempt Property To Exempt Property On The Eve Of Bankruptcy In Arkansas, J. Thomas Hardin

University of Arkansas at Little Rock Law Review

No abstract provided.

Debtor-Creditor Relations—Arkansas Fraudulent Transfer Act, Coleen Miller Barger

University of Arkansas at Little Rock Law Review

No abstract provided.

Private Parties And Bankruptcy-Based Discrimination, Douglass Boshkoff

Indiana Law Journal

No abstract provided.

Maginot Line Defenses To A Preference Action? 11 U.S.C. § 547(C )(2) & (C )(4), Charles E. Reynolds

University of Richmond Law Review

Suppliers of goods and services on credit understand that the recipient may be unable to pay for some or all of the goods provided or the services rendered. However, many of these suppliers have a difficult time "giving back" money previously received from a debtor who has filed for protection under the United States Bankruptcy Code. Judicial interpretation of the broadly written bankruptcy law has made it difficult to defeat a preference action instituted by a trustee in bankruptcy or a debtor-in-possession. As a result, any supplier who has several transactions with a debtor during the preference period is particularly …

Section 707(B) Of The Bankruptcy Code: A Roadmap With A Proposed Standard For Defining Substantial Abuse, David L. Balser

University of Michigan Journal of Law Reform

This Note examines these questions and proposes a standard for determining "substantial abuse." Part I provides an overview of Chapter 7 of the Bankruptcy Code. Part II discusses the legislative history of section 707(b). Part III examines the jurisdictional and procedural questions raised by the section and attempts to define what Congress meant by "primarily consumer debts" and "on [a court's] own motion." Part IV proposes a two-part standard for determining "substantial abuse." This standard suggests that courts should find "substantial abuse" whenever a debtor acts in bad faith or is able to repay 100% of his debts over the …

Avoidability Of Intercorporate Guarantees Under Sections 548(A)(2) And 544(B) Of The Bankruptcy Code, Scott F. Norberg

Faculty Publications

No abstract provided.

Consequences Of Converting A Bankruptcy Case, David G. Epstein

Law Faculty Publications

This paper discusses some of the consequences of converting a bankruptcy case from one chapter to another. At present, there are four different forms of bankruptcy: chapter 7, chapter 9, chapter 11, chapter 13. Congress is currently considering creating yet a fifth form of bankruptcy for farmers. Most individual debtors are now eligible for relief under three of the chapters, 7, 11, or 13. Corporate and partnership debtors can now choose between chapter 7 and chapter 11. The various chapters of the Bankruptcy Code differ in both policy and particulars. A chapter 7 case involves liquidation of the "property of …

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 "Fresh Start" Policy In Consumer Bankruptcy: A Historical Inventory And An Interpretive Theory, Charles G. Hallinan

University of Richmond Law Review

In part II, the article traces the historical development of the idea of providing relief to troubled debtors in bankruptcy, an idea usually summarized as the "fresh start" policy of bankruptcy law. The article catalogs and describes the empirical assumptions and normative judgments underlying the various explanations offered for the availability of a discharge or "fresh start" in bankruptcy. In part II, the article examines the existing Bankruptcy Code in the light of these various theories. The article concludes that the Code's debtor relief provisions are best understood as a form of compulsory insurance for debtors. The nature of insurance …

Through Bankruptcy With The Creditors' Bargain Heuristic, Robert E. Scott

Faculty Scholarship

It is a commonplace, but nonetheless true: the study of bankruptcy has attained a new respectability in American law schools. After years of modest enrollments and few genuine scholarly contributions, bankruptcy courses are now fully subscribed and many young academics are turning their attention to the technical complexities and conceptual underpinnings of modern bankruptcy law. A number of factors contribute to this new-found glamour. Most obviously, the enactment of the new Bankruptcy Code has fueled scholarly interest in reporting its modifications and changes and in exploring its theoretical unity. Simultaneously, there has been increasing resort to the bankruptcy process to …