Bankruptcy Law Commons^™

Beyond The Great Divide: Federalism Concerns In Municipal Insolvency, Andrew B. Dawson

Articles

No abstract provided.

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …

Nine Into Eleven: Accounting For Common Interest Communities In Bankruptcy, C. Scott Pryor

Scholarly Works

Ever more Americans live in a common interest community such as a homeowners’ association or condominium. Common interest communities restrict the uses owners may make of their property but provide benefits to the owners. The community association pays for these benefits by levying assessments on the owners’ property. Common interest communities offer a wide variety of benefits that can be divided into two sorts: public and private. Local municipalities typically provide public benefits at taxpayer expense; private entities usually afford private benefits at the consumer’s expense.

Like both public and private entities, common interest communities can experience the problem of …

Very Special Circumstances - The Almost Irrebuttable Presumption Of Abuse Under Section 707(B)(2), Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly

Kentucky Law Journal

Why do some struggling cities file for bankruptcy while others, facing simiar circumstances, do not? This Article builds on the literature examining the causes and consequences ofmunicipal fiscal distress by exploring specific factors that lead municipalities to seek help from the state and federal government. Viewing municipal opportunities and constraints through political, economic, and legal lenses, this Article helps to explain the nuances ofmunicival decision making.

After identifiing eight factors that may serve as predctors of municipal insolvency, the authors studied cities in Fiscal distress with an eye toward uncovering the circumstances that led each of these cities into and—if …

The Fresh Start Canon, Jonathon S. Byington

Faculty Law Review Articles

A primary policy of bankruptcy law is to give consumer debtors a “fresh start” by discharging their debt. A rival policy is that the discharge of debt is a selectively conferred privilege that is not granted in some situations. For example, society is unwilling to pardon debt related to embezzlement or a domestic-support obligation. This “discharge restrictions” policy is manifested in part by the Bankruptcy Code’s exceptions to discharge. The U.S. Supreme Court has repeatedly recognized the tension between the fresh start and discharge restriction policies. It has sought to achieve a fair balance between these policies by applying a …

Guest Editorial: Personal Insolvency – A Fresh Start, Rosalind Mason, Jason Kilborn, Stephanie Ben-Ishai, Joseph Spooner

Articles & Book Chapters

No abstract provided.

The Triage And Treatment Of Healthcare Institutions In Distress: How To Involve State Regulators In Healthcare Bankruptcies And Receiverships, Brian P. Stern, Christopher J. Fragomeni

Roger Williams University Law Review

No abstract provided.

Attorneys' Fees And Chapter Choice: Exploring "No Money Down" Chapter 13 Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter

Articles by Maurer Faculty

In a forthcoming article in the Southern California Law Review, the authors use new data from the ongoing Consumer Bankruptcy Project (CBP) to explore the "no money down" bankruptcy. This article summarizes that article and discusses the law that influenced the creation of "no money down" chapter 13s, which households are more likely to file with "no money down," and why this type of chapter 13 case might be less than optimal for the consumer bankruptcy system. Both studies draw data from a debtor's bankruptcy court records and written questionnaires mailed to the debtors to collect demographic information and details …

Giving And Creating: The Legacy Of Keith J. Shapiro, G. Ray Warner

Faculty Publications

(Excerpt)

Some take; others give. Tonight’s honoree, Keith J. Shapiro, is a giver.

Many of the giants in our field have received this award during its almost 20-year history, and each of them richly deserved it. But of all the recipients, Keith is the person most deserving of this particular award. This is, after all, the Emory Bankruptcy Developments Journal lifetime achievement award and Keith and the Journal are inextricably linked. Not only did this journal launch Keith’s lifetime of stellar bankruptcy achievement, but one of his achievements was pushing this Journal to the success and preeminence that it now …

Golden Creditors, Copper Rules: An Analysis Of Avoidance Actions Under Section 544(B) Of The Bankruptcy Code In Cases Where A Federal Creditor Holds A Claim, John F. Rabe Jr.

Brooklyn Law Review

Section 544(b) of the Bankruptcy Code endows the trustee with the power to avoid fraudulent transfers that an unsecured creditor could have avoided under applicable law. Most states have adopted versions of the Uniform Fraudulent Conveyances Act (UFCA) or Uniform Fraudulent Transfers Act (UFTA) that impose four- or six-year statutes of limitations on private creditors seeking to unwind fraudulent transfers. Certain government creditors, however, have access to longer statutes of limitation than those available to their private counterparts. Federal creditors acting pursuant to the Federal Debt Collection Procedures Act (FDCPA) or Internal Revenue Code (IRC), for example, can avail themselves …

Reexamining The Doctrine Of Equitable Mootness In Light Of The Detroit Bankruptcy, Nicole Langston

Vanderbilt Law School Faculty Publications

Garnering debate, and sometimes harsh criticism, the doctrine of equitable mootness has been a focal point for academic debates among legal scholars for decades. "Unlike the constitutional doctrine of mootness, which bars consideration of appeals because no Article III case or controversy remains, the doctrine of equitable mootness is a pragmatic judicially-created principle, grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable. Applied principally in bankruptcy proceedings because of the equitable nature of bankruptcy judgments, equitable mootness is often …

Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone

SMU Law Review

No abstract provided.

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms …

Consumer Bankruptcy Pathologies, Edward R. Morrison, Antoine Uettwiller

Faculty Scholarship

This paper questions several long-standing descriptions of consumer bankruptcy in the United States. We focus on Chapter 13, which discharges debts after consumers pay disposable income to creditors for up to five years. Many studies document pathologies, including high failure rates, racial disparities, low creditor recoveries, and attorney biases. We observe the same patterns in new data drawn from Cook County, Illinois, but show that these pathologies are central tendencies that ignore substantial heterogeneity across consumers. Several pathologies are driven by subsets of consumers; some disappear once we take account of consumer heterogeneity. We present new evidence that some pathologies …

Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra

All Faculty Publications

The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue, …

Nothing Left To Tax Or Cut, The Gate To Chapter 9 Is Shut: The Puerto Rico Debt Crisis, Bianca Ko

Loyola of Los Angeles Law Review

No abstract provided.

Critical Differences Between Key Employee Retention Plans And Key Employee Incentive Plans, Sumaya Ullah Restagno

Bankruptcy Research Library

(Excerpt)

Section 503(c) of the United States Bankruptcy Code (the “Bankruptcy Code”) imposes strict limitations on companies in chapter 11 who want to make bonus payments to retain employees. In particular, section 503(c) limits a chapter 11 debtor’s ability to favor employees over the interests of the estate to ensure that any bonus payment is designed for the overall benefit of the bankrupt estate. This memo details the differences between bonus payments under sections 503(c)(1) and 503(c)(3) and explains how a chapter 11 debtor should design bonus payments to employees to ensure those payments pass scrutiny under these provisions.

Substantive Consolidation Of Debtor And Non-Debtor Entities, Eileen Ornousky

Bankruptcy Research Library

(Excerpt)

Based on section 105’s grant of equitable powers, bankruptcy courts have the power to substantively consolidate debtors. Substantive consolidation pools the assets of separate legal entities and treats them as one, allowing each entity’s liability to be satisfied out of the common pool. Although it has been accepted that courts have the power to consolidate a debtor with other related debtors, it its less clear when courts can consolidate a debtor with a non-debtor, or if courts have the authority to do so at all.

Even though most courts have determined that they do have the power to substantively …

Do Foreign Representatives Need To Satisfy The Recognition Requirement?, Parm Partik Singh

Bankruptcy Research Library

(Excerpt)

A foreign representative must obtain recognition of a foreign proceeding pursuant to section 1517 of title 11 of the United States Code (the “Bankruptcy Code”) prior to applying directly to a court in the United States for any relief such as operating the debtor’s business operations in the U.S. or seeking assets and discovery from U.S. entities. However, under section 1509(f), a foreign representative may sue in a United States court to collect or recover a claim which is the property of the debtor without first obtaining recognition. The scope of this exception, though, remains unclear.

This memorandum explores …

Courts Override Underlying Contractual Obligations In The Chapter 11 Surrender And Abandon Of Aircraft Equipment And Vessels, Lisa Strejlau

Bankruptcy Research Library

(Exceprt)

When chapter 11 airline debtors seek to abandon and surrender collateral under a financing agreement, they are not required to do so in any particular condition under the Bankruptcy Code. This leaves the question of who bears the burden of associated costs unresolved. This memo will discuss how courts interpret the issue of costs associated with the surrender and return of aircraft and related equipment.

Financers of aircraft and related equipment receive special privileges under section 1110 of the Bankruptcy Code (“the Code”). Section 1110 permits a party to take possession of an aircraft in the custody of a …

Creditor’S Failure To File A Proof Of Claim Is Inexcusable Where Potential Danger Of Prejudice To Debtor Exists, Meghan Lombardo

Bankruptcy Research Library

(Excerpt)

The Federal Rules of Bankruptcy Procedure provide that when an act is required … to be done at or within a specified period … the court for cause shown may at any time in its discretion… on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Rule 9006 grants a pardon for late filings that were caused by neglect. The Supreme Court has defined neglect as “‘giv[ing] little attention or respect’ to a matter or… ‘to leave undone or unattended to especially …

Forum Non Conveniens And Chapter 15 Bankruptcy, Tyler Levine

Bankruptcy Research Library

(Exceprt)

When pursuing a case under Chapter 15 of Title 11 in the United States, Code (the “Bankruptcy Code”) a plaintiff can litigate all claims in a single forum or in certain cases they may be able to pursue additional claims stemming from the same case in a foreign forum. Many parties will want to litigate all of the claims in a single forum and will file a forum non conveniens motion when their adversary tries to pursue claims in multiple forums. Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or …

Application Of Safe Harbor Provisions To Early Termination Of Swap Agreement, William Accordino Jr.

Bankruptcy Research Library

(Excerpt)

Credit default swap agreements (“swaps”) are contracts between two entities in which the counterparties are effectively taking opposing positions on the credit worthiness of a debt instrument that acts as the collateral underlying the swap. For example, counterparty A makes payments to counterparty B in the hopes that the debtor defaults or a counterparty commits an event of default specified in the agreement, such as filing for bankruptcy. Swaps are generally executory contracts and thus may generally be rejected by a trustee or a debtor in bankruptcy pursuant to section 365 of the United States Bankruptcy Code (“the Code”). …

Property Of The Estate And Creditors Rights To Bring Individual Suits, Ryan Dolan

Bankruptcy Research Library

(Excerpt)

Once bankruptcy proceedings begin, section 541 of the United States Bankruptcy Code (the “Bankruptcy Code”) defines the scope of a debtor’s property as including all legal and equitable interests of the debtor. Courts have adopted an expansive interpretation of this section, noting that “every conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within reach of the bankruptcy estate.” As a result, a trustee of the debtor’s estate, or a debtor-in-possession, obtains standing to assert general claims which are common to the creditors, and creditors are thus bound by the outcome of the trustee’s actions.

If …

Non-Dischargeability Of Foreign Student Loans, Andrew Brown

Bankruptcy Research Library

(Excerpt)

Educational loans made, insured, or guaranteed by a governmental unit are not dischargeable in a bankruptcy case, unless the debtor obtains a hardship determination. This is true even if the loan is made, insured, or guaranteed by a foreign governmental unit. The rationale behind making it difficult to discharge student loans via the United States Bankruptcy Code (the “Code”) is to prevent abuses of the educational loan system, specifically students filing for bankruptcy shortly after graduation to discharge their loans.

Various circuit courts have adopted two tests when applying the undue hardship provision of section 532(a)(8). In 1987, the …

Bankruptcy Courts May Alter Final Sale Orders And Findings Of Good Faith Purchasers, Louis Calabro

Bankruptcy Research Library

(Excerpt)

For many years, a policy of finality has existed in the legal sphere to protect purchasers after a sale has been completed. This policy serves to create stability and predictability for investors and incentivizes activity in the marketplace. In bankruptcy cases, issues of finality are implicated when a debtor engages in an asset sale, and the court grants a final sale order. The purchasing party wants the sale to be final, so courts have promoted the policy of finality to enhance the efficiency and effectiveness of bankruptcy plans. Sometimes, however, an adverse party claims to have an interest in …

Chapter 11 Liquidation And Its Effect On Collective Bargaining Agreements, Dylan Coyne

Bankruptcy Research Library

(Excerpt)

Sections 1113 and 1114 of title 11 of the United States Code (the “Bankruptcy Code”) allow a debtor to reject its collective bargaining agreements and payment of retiree benefits, subject to certain statutory conditions being met. These provisions apply to companies that employ unionized workers who receive compensation and benefits pursuant to a collective bargaining agreement. Both sections, however, only apply to a debtor that is “reorganizing.” Moreover, courts have held that section 1114, which governs the payment of insurance benefits to retirees, permits modification of obligations under a statute, such as the Coal Industry Retiree Health Benefit Act …

Effects Of Veil Piercing, Alter Ego And Substantive Consolidation On Bankruptcy, Lauren Gross

Bankruptcy Research Library

(Excerpt)

At times, bankruptcy can seem like a game of cat and mouse between debtors and creditors. By filing for bankruptcy in the first place, debtors change the rules of the game with various bankruptcy mechanisms, such as the automatic stay provision set forth in section 361 of the United States Bankruptcy Code (the “Bankruptcy Code”). An important inquiry exists in what creditors can to do promote their interests in bankruptcy. An even more important inquiry lies in determining what doctrines may satisfy generally recognized principles of equity for all.

One option for creditors who deal with corporate entities is …

Creditors Cannot Contract Around Their Fiduciary Duties And Withhold Their Consent From A Debtor To File For Bankruptcy, Samantha Guido

Bankruptcy Research Library

(Excerpt)

Many courts have found that a debtor may not contract away their right to voluntarily file for bankruptcy. However, debtors and creditors have implemented creative measures to avoid this principle. For example, a creditor may seek the appointment of a so-called “blocking director” on a company’s board of directors, who would control the company’s bankruptcy filing. Additionally, some creditors seek a “golden share” in order to have veto power over changes to the company’s charter, including veto power over whether the company can file for bankruptcy. In determining whether these mechanisms are void under public policy, courts will consider …