Bankruptcy Law Commons^™

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

Scholarship@WashULaw

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

Treatment Of Assignment Of Rents In Bankruptcy Under New York Law, James Agoglia

Bankruptcy Research Library

(Excerpt)

Assignments of rents are a common feature of commercial real estate financing in New York. In connection with a mortgage or other secured loan, a borrower that owns income-producing property typically grants the lender an assignment of rents as additional security, entitling the lender to rental income generated by leases at the property upon the borrower’s default. These assignments are intended to protect the lender’s interest by providing an alternative source of repayment and by limiting the borrower’s ability to divert rental income during periods of financial distress.

Disputes concerning assignments of rents often arise when a borrower defaults …

Corporate Evolution, Omari Scott Simmons

Cardozo Law Review

Political entrepreneurs have declared war on environmental, social, and governance policies ("ESG"), going so far as to attempt to criminalize ESG-influenced investing. They seek a return to some real or imagined past. They amplify and elevate their efforts into mainstream public discourse. They pursue extraordinary goals and tactics to disrupt and even dismantle institutional structures, norms, and established processes. The contemporary anti-ESG backlash is not simply a battle over corporate purpose and the dueling perspectives of shareholder primacy versus stakeholderism or disputes concerning sustainable investment and operational strategies. It reflects aggressive political entrepreneurship and the tension between competing narratives: stasis, …

Equity And Clarity: The Impact Of Tyler V. Hennepin County On Property Taxation And Homeowners’ Rights, Analy Feigel

Cardozo Law Review

This Note explores the implications ofthe U.S. Supreme Court's ruling in Tyler v. Hennepin County, which significantly impacts property taxation and foreclosure laws. The Court ruled that property owners are entitled to surplus proceeds following a tax foreclosure, setting a new precedent by deeming it unconstitutional for governments to retain surplus proceeds without just compensation. Tyler clarified property rights under the Fifth Amendment, affirming that owners have a constitutional right to the surplus value of their foreclosed properties, even if local statutes do not explicitly allow it.

Further, this Note also addresses unresolved issues following Tyler's ruling, including how the …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A.E. Pottow

Cardozo Law Review

In the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial “sanction”) but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its “selectivity.” It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular—so …

Behaviour Of Creditors And Involved Stakeholders In Corporate Insolvency Resolution Process (Cirp) In India: An Economic Perspective, Hiteshkumar Thakkar, Pranay Agarwal, Randall K. Johnson

Faculty Works

IBC has long clarified its purpose of achieving efficiency in the resolution procedure along with the welfare of the stakeholders. In order to achieve it, the code introduced Corporate Insolvency Resolution Process (CIRP) as a group solution mechanism in insolvency cases. While there is a plethora of studies focusing on the procedural and substantive working of the process, its influence over the behaviour and conduct of the stakeholders and its impact on its success has been ignored. Through this study, the author aims to develop a comprehensive economic model to explain the impact of CIRP on the creditor’s behaviour and …

Foreclosure Sales As Fraudulent Transfers, David G. Carlson

Articles

The Supreme Court has declared that noncollusive, regularly conducted foreclosure sales are not “constructive” fraudulent transfers voidable by a bankruptcy trustee Uniform state legislation ratifies this instinct for private creditor enforcements. But collusive or irregular foreclosure sales or sales that are intended to hinder, delay, or defraud creditors are subject to creditor attack, even though unsecured creditors are not proper parties to the foreclosure process. In such cases, unsecured creditors can cloud the title obtained from foreclosure in the cases of collusion, irregularity or fraudulent intent. This article examines precisely when foreclosure sales can be avoided by unsecured creditors of …

Right For Any Reason, Jeffrey M. Anderson

Cardozo Law Review

The chances of winning an appeal in federal court are slim. One reason for that is an array of rules of appellate review that “stack the deck” in favor of the appellee and the lower court’s judgment. One such rule of review is “right for any reason,” the rule that an appellee may defend a lower court’s judgment on any grounds supported by the record—even grounds that the lower court rejected or ignored. The judgment may be right, even if the reasons are wrong. In 1924, the Supreme Court described the rule as “settled”—and felt no need to cite authority …

The Revival Of Student Loan Discharge In Bankruptcy By The Tenth And Second Circuits, Biqi Chen

Cardozo Law Review

No abstract provided.

Section 546(E) Redux—The Proper Framework For The Construction Of The Terms Financial Institution And Financial Participant Contained In The Bankruptcy Code After The U.S. Supreme Court’S Holding In Merit, Peter V. Marchetti

Cardozo Law Review

This Article discusses and analyzes the proper framework for the construction of the terms “financial institution” and “financial participant” as defined in Sections 101(22)(A) and 101(22A) of the Bankruptcy Code (the Code), as they work in tandem with Section 546(e) of the Code. In 2018, the U.S. Supreme Court issued its long awaited decision in Merit, which held that the language regarding transfers “made by or to (or for the benefit of) . . . a financial institution” contained in Section 546(e) does not insulate the ultimate transferee of a constructive fraudulent action (a CFTA) simply because the company being …

Retiring Life Tenure: On Term Limits And Regular Appointments At The Supreme Court, Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, Amanda Pescovitz

Cardozo Law Review

No abstract provided.

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

Articles

The United States' 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 bankruptcy filings by people struggling to recover. Those 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 …

Bankruptcy, Taxes, And The Primacy Of Irs Refund Offsets: Copley V. United States, Michelle Lyon Drumbl

South Carolina Law Review

No abstract provided.

The Settlement Trap, Lindsey Simon

Indiana Law Journal

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, …

Police Prosecutions And Punitive Instincts, Kate Levine

Articles

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal …

Bankruptcy And The Deceased Debtor: Rule 1016 In Practice, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Asset Partitioning And Financial Innovation, Christopher Bruner

Scholarly Works

Review of the article by Ofer Eldar and Andrew Verstein titled “The Enduring Distinction between Business Entities and Security Interests”, 92 Southern California Law Review, no. 2 (2019).

Section 707(B) Standing For Parties In Interest - Who Cares, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Tax Foreclosures As Fraudulent Transfers - Are Auctions Really Necessary, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Stern Claims And Article Iii Adjudication - The Bankruptcy Judge Knows Best, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

The Challenges And Implications Of Fiscal Health, Bruce D. Mcdonald Iii

South Carolina Journal of International Law and Business

No abstract provided.

How Far Does The Rabbit Hole Go: The Interaction Between Set-Off Rights And The Voidable Preference Hypothetical In Chapter 7 Liquidation, Josh Rutstein

Cardozo Law Review de•novo

This Note highlights the tension between Section 547 and Section 553 of the Bankruptcy Code, with specific attention paid to the interaction between set-off rights and the hypothetical liquidation invoked by a court in a voidable preference action, and proposes adopting the Ninth Circuit’s reasoning as a bankruptcy court standard when confronted with a similar conflict between the formalized tests in Sections 547 and 553, in an attempt to achieve a more equitable outcome.

Section 704(B)(2) - The Back Door Into Chapter 7 For The Above-Median Debtor, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Reforming The True-Sale Doctrine, Heather Hughes

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott

Utah Law Review

This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically, four …

Rethinking Preemption And Constitutional Parameters In Bankruptcy, Michelle M. Harner

William & Mary Law Review

Chapter 11 of the U.S. Bankruptcy Code allows financially distressed businesses to reorganize and emerge from bankruptcy free of their pre-bankruptcy debts and obligations. In general, a business can achieve this kind of “fresh start” by confirming a plan of reorganization or pursuing a going-concern sale that typically facilitates a change in ownership, a reduction in leverage, and the elimination of most claims against the company’s assets. Through these kinds of transactions, a business can emerge from bankruptcy with a stronger balance sheet and often a new ownership structure. It also can streamline operations by, for example, assuming valuable contracts …

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …

Restructuring Municipal Bankruptcy, Laura Napoli Coordes

Utah Law Review

What sorts of legal relief should be available to a municipality in financial distress? Chapter 9 of the Bankruptcy Code has served as an option of last resort for many municipalities over the years. But as this Article illustrates, Chapter 9 arguably falls short of an effective solution and at times seems to contravene the foundational principles underlying bankruptcy law. By examining recent Chapter 9 filings, this Article presents a comprehensive analysis of how and why Chapter 9 has failed to address the problems that characterize municipal insolvencies. It argues that Chapter 9, in both practice and principle, has proved …

Disciplining The Financial Failure: An Exploration Of Bankruptcy Law As An Active Discourse In Market Capitalism, Linda E. Coco

Faculty Scholarship

No abstract provided.

What Are The Article Iii Limits To Bankruptcy Court Jurisdiction, And Can Parties Consent To Expanded Jurisdiction: Wellness International Network V. Sharif (13-935), Marshall E. Tracht

Articles & Chapters

No abstract provided.