Bankruptcy Law Commons^™

The Applicability Of The Eleventh Amendment In Chapter 9 Cases, Christopher J. Pedraita

Bankruptcy Research Library

(Excerpt)

The sovereign immunity of the states, or the freedom of a state from suit by its citizens, became constitutionally protected in the late eighteenth century through the passage and ratification of the Eleventh Amendment. In particular, the Eleventh Amendment protected states from suits “commenced or prosecuted…by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Notwithstanding the plain language, the Supreme Court has held that the Eleventh Amendment also bars suits against a state that are commenced by citizens of its own state. Moreover, the Eleventh Amendment also bars suits by municipalities brought against the …

Defining Residency Under The Federal Homestead Exemption, Sally Profeta

Bankruptcy Research Library

(Excerpt)

The homestead exemption is a longstanding doctrine in American jurisprudence that protects the interest debtors have in their dwelling when filing for bankruptcy. Section 522(d)(1) of the Bankruptcy Code’s federal exemption scheme provides debtors with the opportunity to preserve the interest they have in their residence, with outside limits on the amount that interest is valued. However, courts are divided on the interpretation of the word “residence,” and have struggled to determine whether “residence” requires actual occupancy of the claimed property at the date of filing.

There are two cannons of statutory interpretation that are used in this context, …

Legitimizing Bankruptcy Petition Preparers: A Sociolegal Prescription For Change, 89 American Bankruptcy Law Journal 269 (2015) (Peer-Reviewed Journal), Michael D. Sousa

Sturm College of Law: Faculty Scholarship

Individuals who need to file for bankruptcy often find themselves confronted with the very real dilemma of desperately needing financial relief on the one hand and affording the high costs of accessing the bankruptcy law system on the other. The decision to resort to bankruptcy comes at a financially precarious time in most peoples’ lives and often after an exogenous life event pushes them over the financial precipice. Given that many consumer debtors come from the lower middle class and working class, many have a difficult time finding the funds to pay for the necessary access costs, most notably, attorney …

The Logic And Limits Of Liens, Edward Janger

Faculty Scholarship

No abstract provided.

Getting More Than Justice On Paper: Bankruptcy Priorities And The Crisis Of Unpaid Wages, Omer Kimhi

Hofstra Law Review

The article discusses the legal aspects of bankruptcy wage priorities and unpaid wage claims in America as of 2015, and it mentions the U.S. Bankruptcy Code, as well as justice and the author's support for the adoption of an insurance-based model to help protect the legal rights of employees, employers, and unsecured creditors in America. Bankruptcy-related costs are examined, along with legal remedies and the problems associated with employees' efforts to collect unpaid wages from employers.

Symposium Foreword, J. Rich Leonard

Campbell Law Review

No abstract provided.

The Disguise Of Municipal Bonds: How A Safe Bet In Investing Can Become An Unexpected Uncertainty During Municipal Bankruptcy, Maryjane Richardson

Campbell Law Review

No abstract provided.

Pensions Or Paintings?: The Detroit Institute Of Arts From Bankruptcy To Grand Bargain, 24 U. Miami Bus. L. Rev. 1 (2015), Maureen Collins

UIC Law Open Access Faculty Scholarship

This article examines the issues faced by the City of Detroit and the Detroit Institute of Arts when Detroit filed for municipal bankruptcy. Creditors called for the sale of the highly esteemed DIA art collection to pay outstanding municipal pension obligations. The DIA and the Michigan Attorney General viewed the collection not as an asset, but as a charitable public trust. Simply put, the City faced the question of what mattered most – pensions or paintings? Along the way, the parties and courts struggled with valuation of the art collection, a history of judicial decisions and lawmaking regarding charitable trusts …

Chapter 9 Plan Confirmation Standards And The Role Of State Choices, Juliet M. Moringiello

Campbell Law Review

No abstract provided.

Review Of Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Iversen

Reviews

This book review probes Michael Waibel’s new book, Sovereign Defaults Before International Courts and Tribunals. Waibel's project is ambitious, exploring international attempts to address sovereign defaults over the past century and a half. Through painstaking and comprehensive historical analysis, Waibel shows how we've been here before -- a sober reminder for those thinking Argentina is simply part of a new fad in financial default. With the UN now turning its attention to sovereign debt issues, this study is especially timely. Although somewhat disappointing in the lightness of its normative content, the book should nevertheless prove helpful to those considering the …

Fair And Unfair Discrimination In Municipal Bankruptcy, Richard M. Hynes, Steven D. Walt

Campbell Law Review

No abstract provided.

The Problem Of Local Methods In Cross-Border Insolvencies, Andrew B. Dawson

Articles

No abstract provided.

Fraud And Defalcation By A Fiduciary: The Amorphous Exception To Bankruptcy Discharge, H.C. Jones Iii

University of Baltimore Law Review

No abstract provided.

Derivatives And Collateral: Balancing Remedies And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This Article examines whether exempting those transactions from bankruptcy’s automatic stay, including the stay of foreclosure actions against collateral, is necessary or appropriate in order to minimize systemic risk.

A Model-Law Approach To Restructuring Unsustainable Sovereign Debt, Steven L. Schwarcz

Faculty Scholarship

Unresolved sovereign debt problems are hurting debtor nations, their citizens and their creditors, and also can pose serious systemic threats to the international financial system. The existing contractual restructuring approach is insufficient to make sovereign debt sustainable. Although a more systematic legal resolution framework is needed, a formal multilateral approach, such as a treaty, is not currently politically viable. An informal model-law approach should be legally, politically and economically feasible. This informal approach would not require multilateral acceptance. Because most sovereign debt contracts are governed by either New York or English law, it would be sufficient if one or both …

The Failed Reform: Congressional Crackdown On Repeat Chapter 13 Bankruptcy Filers, Sara Sternberg Greene

Faculty Scholarship

After decades of lobbying to “get tough” on bankruptcy repeat filers, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The Bankruptcy Code now requires that the automatic stay, which prevents creditors from pursuing the property of bankruptcy debtors, expires after thirty days for petitioners who file for bankruptcy within one year of a previously failed petition. Debtors can file a motion to extend the stay, but there is a presumption of a bad faith filing, only overcome if a debtor can show there has been a “substantial change in his or her financial or personal …

Secured Credit In Religious Institutions' Reorganizations, Pamela Foohey

Articles by Maurer Faculty

Scholars increasingly assume that most businesses enter Chapter 11 with a high percentage of secured debt, which leads to a high percentage of cases ending in the sale of the debtor’s assets under section 363 of the Bankruptcy Code rather than with confirmation of a reorganization plan. However, evidence and discussions about “the end of bankruptcy” center on secured creditors’ role in the reorganizations of very large corporations. The few analyses of cross-sections of Chapter 11 proceedings suggest that secured creditor control is not nearly as omnipresent as asserted and that 363 sales are not as dominant as assumed.

This …

Bankruptcy Protection Of Retirement Plan Beneficiaries After Clark V. Rameker, Karen K. Suhre, Courtney M. Vormund, Christopher R. Hoyt

Faculty Works

No abstract provided.

Producing Better Mileage: Advancing The Design And Usefulness Of Hybrid Vehicles For Social Business Ventures, John E. Tyler, Evan Absher, Kathleen Garman, Anthony J. Luppino

Faculty Works

Since 2008 approximately half of the states in the U.S. have enacted statutes permitting “hybrid” business forms that blend aspects of traditional for-profit ventures with characteristics normally associated with traditional non-profit entities. This article analyzes theoretical, academic, practical, legal, and regulatory questions regarding the extent to which the existing hybrids are suited to achieving social purposes objectives, including in comparison to modified traditional forms of business organization. Finding the current fleet of hybrids an innovative, useful start, but with need to evolve, this article proposes statutory language (set forth in a detailed appendix, and summarized in the article text), and …

"Deemed" Security Interests In Ucc Article 9: Avoiding Traps For The Unwary, 14 Depaul Bus. & Com. L.J. 79 (2015), Paul T. Wangerin

UIC Law Open Access Faculty Scholarship

Uniform Commercial Code (“UCC”) Section 1-201(35) provides in its detailed definition of security interests that “security interest” means “an interest in personal property or fixtures which secures payment or performance of an obligation.” Other parts of the UCC demonstrate that two relatively distinct kinds of security interests exist. First, the UCC notes that parties to transactions can create security interests by executing “security agreements.” For convenience sake, the security interests created by security agreements can be called “conventional” or “agreed upon” security interests. Second, various sections of the UCC describe security interests that come into existence by operation of law …

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

Faculty Scholarship

No abstract provided.

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn

UIC Law Open Access Faculty Scholarship

No abstract provided.

Who Bears The Burden? The Place For Participation Of Municipal Residents In Chapter 9, C. Scott Pryor

Campbell Law Review

No abstract provided.

Is The § 943(B)(7) Feasibility Requirement Feasible? Why Congress Should Clarify Its Chapter 9 Bankruptcy Plan Requirements, Anderson M. Shackelford

Campbell Law Review

No abstract provided.

Recent Developments In Estoppel And Preclusion Doctrines In Consumer Bankruptcy Cases; Volume Ii Of Ii: Preclusion, Kevin M. Lewis, Paul M. Lopez, Scott Lawrence, Tim Springer

Oklahoma Law Review

No abstract provided.

Letter To Judge Rhodes: An Evaluation Of The Expert Report Of Martha E.M. Kopacz Regarding The Feasibility Of The City Of Detroit Plan Of Adjustment, Peter J. Hammer

Law Faculty Research Publications

No abstract provided.

Stay Imposed - The Failed Policy Of Section 362(C)(4), Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

The Chapter 13 Debtor's Absolute Right To Dismiss, Daniel J. Sheffner

Cleveland State Law Review

This Article discusses the current state of the Chapter 13 dismissal circuit split, providing an overview of 1307(b) and other relevant sections of the Bankruptcy Code, illustrative pre Marrama case law on either side of the divide, and the Marrama decision itself. This Part examines Marrama’s role in shifting the debate from one based primarily on 1307’s text to that of the bankruptcy courts’ general powers to sanction bad faith conduct, as well as lower courts’ responses to that decision. Part III examines Law, paying special attention to the Court’s discussion of the limitations placed on bankruptcy courts’ statutory and …

Changes In Chapter 11 Success Levels Since 1980, Lynn M. Lopucki

UF Law Faculty Publications

This Article revisits the nine measures of success that Bill Whitford and I reported on in Patterns in the Bankruptcy Reorganization of Large, Publicly Held Companies, with twenty-six additional years of experience and data on 964 additional cases. My principal objective has been to determine whether Chapter 11 has become more or less successful by those measures. I conclude that Chapter 11 has become less successful by three of the seven LoPucki-Whitford criteria for which data are available. The courts confirm plans in a significantly smaller proportion of cases, a significantly smaller proportion of companies survive, and a significantly smaller …

Bankruptcy Survival, Lynn M. Lopucki, Joseph W. Doherty

UF Law Faculty Publications

Of the large, public companies that seek to remain in business through bankruptcy reorganization, only 70% succeed. The assets of the other 30% are absorbed into other businesses. Success is important both because it is efficient and it preserves jobs, communities, supplier and customer relationships, and tax revenues. This Article reports the findings of the first comprehensive study of the division into successful and failed reorganizations. Eleven conditions best predict companies’ survival prospects. First, a company that even hints in the press release announcing its bankruptcy that it intends to sell its business is highly likely to fail. Second, reorganizations …