Bankruptcy Law Commons^™

The Search For More Fairness In The Fair Debt Collection Practices Act, Elwin Griffith

University of Richmond Law Review

No abstract provided.

Bankruptcy Empiricism: Lighthouse Still No Good (Reviewing Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbook, The Fragile Middle Class: Americans In Debt (2000)), Margaret Howard

Scholarly Articles

Not available.

Will Exploding Guaranties Bomb?, Marshall E. Tracht

Articles & Chapters

Springing and exploding guaranties - insider guaranties that will become due ifand when a borrower files for bankruptcy - have become popular as "bankruptcy-proofing" devices, yet there is little case law or literature on their enforceability. This article reviews the limited existing law on these bankruptcy-contingent guaranties and examines some of the arguments against their enforceabiltiy that can be expected to be made in the future.

Options In Consumer Bankruptcy: An American Perspective, Jean Braucher

Osgoode Hall Law Journal

In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …

Failure And Forgiveness: A Review, James J. White

Reviews

In Failure and Forgiveness, Professor Karen Gross has written two books about bankruptcy. The first book, found in the first nine chapters, describes the bankruptcy law, the bankruptcy system, its operation, and the policies that support that law and system. This first book is written for a lay audience, and it is an admirable exposition of the law and policy. The second book, chapters ten to fifteen, contains several proposals for change in the bankruptcy law and states arguments to justify those proposals. The second book shows Professor Gross to be a kindly socialist, deeply suspicious of free markets and …

The Wisconsin Exemption Clause Debate Of 1846: An Historical Perspective On The Regulation Of Debt, Bernard R. Trujillo

Law Faculty Publications

No abstract provided.

The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael

Law Faculty Scholarly Articles

An important part of the law of creditors' remedies is the ability of creditors to recover property formerly held by the debtor, but transferred to others under circumstances that are considered to be unfair or inequitable. There are two principal ways a creditor can seek to have a debtor's transfer characterized as unfair in order to recover it. First, a transfer to another creditor or a third party can be fraudulent as to one or all of the remaining creditors, or may be deemed to be fraudulent because of the circumstances surrounding the transfer, such as a transfer made by …

To Love, Honor, And (Oh) Pay: Should Spouses Be Forced To Pay Each Other's Debts?, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Corporate Judgement Proofing: A Response To Lynn Lopucki's 'The Death Of Liability', James J. White

Articles

In "The Death of Liability" Professor Lynn M. LoPucki argues that American businesses are rendering themselves judgment proof.- Using the metaphor of a poker game, Professor LoPucki claims American businesses are increasingly able to participate in the poker game without putting "chips in the pot." He argues that it has become easier for American companies to play the game without having chips in the pot because of the ease with which a modern debtor can grant secured credit, because of the growth of the peculiar form of sale known as asset securitization, because foreign havens for secreting assets are now …

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 …

Rethinking Absolute Priority After Ahlers, John D. Ayer

Michigan Law Review

There was no evident reason why the Supreme Court granted certiorari in Norwest Bank Worthington v. Ahlers. It can be conceded that the issue was important: in the midst of an agricultural depression, a farmer was trying to hang onto his farm without paying the full amount of his bank debt. The farmer argued that he ought to be able to do so because he was offering to contribute "new value" beyond what he was obliged to contribute - specifically, his efforts as a farmer.

For Ahlers is a case with a past, as well as a future. Thus, in …

Constitutional Law—Due Process—Garnishment Procedures Must Provide For Notice To Postjudgment Debtor, Kathleen A. Hillegas

University of Arkansas at Little Rock Law Review

No abstract provided.

The Transformation Rule Under Section 522 Of The Bankruptcy Code Of 1978, Raymond B. Check

Michigan Law Review

This Note rejects the statutory arguments that have been advanced in favor of the transformation rule, and argues that the rule is inconsistent with both the policies motivating section 522 of the Bankruptcy Code and the overall purposes of the U.C.C. priority system. Part I examines the treatment of purchase money security in the U.C.C. scheme. It also describes the exemption provisions of the 1978 Bankruptcy Code and the legislative concerns that shaped those provisions. Part II summarizes the judicial adoption of the transformation rule and the statutory basis relied upon by courts in applying it. Part III argues that …

Recent Developments, Various Editors

Villanova Law Review (1956 - )

No abstract provided.

Baankruptcy-Usury-Plaintiff's Claim For Compound Interest Ruled Usurious; Simple Interest Disallowed To Give Effect To State's Deterrence Policy, Gerald Bohm

Fordham Urban Law Journal

Usury is the charging of interest for the use of money as a rate in excess of that permitted by statute. The Bankruptcy Act allows the trustee-in-bankruptcy to plead the defense of usury to a creditor's claim. A debtor-in-possession in a Chapter XI proceeding, who has all the rights and powers of the trustee, may also assert the defense of usury. There is, however, no federal usury statute and the Bankruptcy Act defines neither usury nor its effect. To resolve the usury issue the bankruptcy court has to look to the law of the jurisdiction in which the loan arose. …

Municipal Bankruptcy Under The 1976 Amendments To Chapter Ix Of The Bankruptcy Act, Kenneth W. Bond

Fordham Urban Law Journal

This articles examines the new Chapter IX of the Bankruptcy Act, particularly its effectiveness in providing insolvent or financially distressed municipalities with a simpler and more efficient method of obtaining financial relief. The articles discusses the differences under the new Chapter IX as compared to the old Chapter IX and argues that the new Chapter IX, although not designed to accomplish more than its predecessor, is a better tool for financially distressed municipalities because it simplifies the bankruptcy process while increasing the changes of a successful reorganization of debt.

Feasibility In Chapter X Reorganizations, David R. King

Villanova Law Review (1956 - )

No abstract provided.

The Relative Priority Of Small Business Administration Liens: An Unreasonable Extension Of Federal Preference?, Ronald L. Olson

Michigan Law Review

During the past three decades, the priority of the federal government as against state and private creditors competing for the assets of debtors has been greatly strengthened. In terms of relative growth, the expansion of federal priority has been comparable to the increased commercial involvement of the United States. In more recent years, Congress and the judiciary have recognized that this increased governmental commercial activity necessitates a restriction in sovereign prerogatives. However, contrary to this general trend toward the contraction of sovereign prerogatives and for reasons appearing unsatisfactory to most commentators, the "sovereign prerogative" of priority to the assets of …

Bankruptcy-Prior Discharge Within Six Years As Bar To Wage Earner's Extension Plan, Anthony Lynch

Michigan Law Review

Appellant, a debtor, sought confirmation of a wage earners' extension plan pursuant to Chapter XIII of the Bankruptcy Act. Section 656 prohibits confirmation of a plan under Chapter XIII if the debtor would have been denied an ordinary discharge in bankruptcy had he been seeking one. A discharge within six years prior to the date of filing constitutes a bar to such discharge. The referee, finding that the debtor had obtained a discharge within six years, dismissed the proceedings. On appeal from the district court's affirmance, held, affirmed. Since a wage earner's extension plan clearly contemplates a discharge of …

The Wage Earner's Plan In Practice, Reginald W. Mcduffee

Vanderbilt Law Review

In this article Judge McDuffee discusses the present use of the Wage Earner's Plan, the need for its extension, and the potential which this provision possesses for benefiting both debtor and creditor. He documents his commentary both with statistical data and with statements made by referees throughout the nation.

Bills And Notes-Discharge-Intentional Destruction Due To Mistake As A Discharge, Richard S. Weinstein S.Ed.

Michigan Law Review

The holder of sixteen bonds issued by defendant destroyed the bonds believing them to be worthless after they had been in default as to both principal and interest for six years. Ten years later the defendant went into bankruptcy for reorganization and the holder learned that under the plan of reorganization the bonds were exchangeable for $400 in cash and $600 in preferred stock. When defendant refused to recognize the indebtedness even though the holder tendered an indemnity bond against wrongful payment, the holder instituted suit to recover the value of the bonds. The lower court denied relief to the …

Sales - Chattel Mortgages Under The Bulk Sales Statutes

Michigan Law Review

Gessaman, who was a dealer in new and used automobiles, was indebted to the bank and other creditors. While so indebted, he executed and delivered to the acceptance corporation a chattel mortgage upon all the furniture, fixtures, equipment and supplies used in the business. Later the mortgagee took possession of the chattels without suit, and immediately afterward Gessaman was adjudged a bankrupt. The trustee, in behalf of the bank and other creditors, seeks to subject the chattels to a trust in the hands of the acceptance corporation upon the claim that the chattels were taken under a sale in violation …