Bankruptcy Law Commons^™

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 …

Creditor Equality In Transnational Bankruptcies: The United States Position, Ulrich Huber

Vanderbilt Journal of Transnational Law

In addition to giving a fresh start to the debtor, a primary goal of bankruptcy law (at least of liquidation bankruptcy) is to distribute equally the debtor's assets to his creditors. Although the Bankruptcy Reform Act of 1978 and its 1984 Amendments (collectively "the Code") provide many ways of achieving this goal in domestic bankruptcies, these methods often prove to be of little help when a debtor's assets are located in more than one country.

Equality of creditors regardless of their origin, however, is considered essential for the development of international trade. International trade has grown substantially, if not explosively, …

The Enterprise Bankruptcy Law Of The People's Republic Of China (For Trial Use): A Translation, Henry R. Zheng

Vanderbilt Journal of Transnational Law

Art. 1. This law is enacted to meet the need for development of the planned socialist commodity economy and for economic reform, to promote the independence of business management of the enterprises under the ownership by the whole people, to strengthen the system of economic responsibility and democratic management, to improve business management and economic performance, and to protect the lawful rights and interests of debtors and creditors. Art. 2. This law applies to enterprises under the ownership of the whole people.

Art. 3. Enterprises that sustain serious loss due to inappropriate management and that are unable to pay off …

Case Comment, Laura F. Howard

Vanderbilt Journal of Transnational Law

SCOPE OF REVIEW IN EXTRADITION PROCEEDINGS: The Government Cannot Appeal A Denial of Extradition Request Based on the Declaratory Judgment Act --United States v. Doherty, 786 F.2d 491 (2d Cir. 1986).

BANKRUPTCY--Section 304 Of The Bankruptcy Code Is Not An Exclusive Remedy In A Nonbankruptcy Court, Cunard Steamship Co.Ltd. v. Salen Reefer Serv. A.B., 773 F.2d 452 (2d Cir. 1985).

Bankruptcy Law Of The People's Republic Of China: Principle, Procedure & Practice, Henry R. Zheng

Vanderbilt Journal of Transnational Law

The Enterprise Bankruptcy Law of the People's Republic of China (For Trial Use) (the National Act), promulgated on December 2, 1986, is the first bankruptcy legislation applicable nationwide in the People's Republic of China (PRC or China). At the same time, some regional governments have also enacted regional bankruptcy laws with very limited geographic application. The National Act applies only to state-owned Chinese enterprises, while one regional bankruptcy regulation applies exclusively to foreign investment enterprises." The PRC thus has developed two parallel bankruptcy regimes. The introduction of a bankruptcy system in China represents a significant development in the economic relationship …

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 …

Bankruptcy: Dischargeability Of Restitutive Conditions Of Probation - Criminals Find Refuge In The Provisions Of The Bankruptcy Reform Act Of 1978, Seamus C. Duffy

Villanova Law Review (1956 - )

No abstract provided.

The Availability Of Injunctions In Bankruptcy To Restrain Collection Of I.R.C. 6672(A) Penalties, Beth K. Neelman

Cardozo Law Review

No abstract provided.

The Outer Limits Of Section 542 Of The Bankruptcy Code: United States V. Whiting Pools, Inc., Revisited, Craig S. Provorny

Cardozo Law Review

No abstract provided.

Timing Of Payments By Check Under Section 547 Of The Bankruptcy Code, Azita Gorton

Cardozo Law Review

No abstract provided.

Midlantic National Bank V. New Jersey Department Of Environmental Protection, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Toxic Torts And Chapter 11 Reorganization:The Problem Of Future Claims, Anne Hardiman

Vanderbilt Law Review

Recently, the toxic tort phenomenon has emerged as a vital concern to manufacturers, employers, and consumers as Agent Orange,' DES, Dalkon Shield, and asbestos victims have litigated toxic tort claims. Toxic torts are unique because any number of victims may be exposed to a toxic substance from which they may contract a disease as far as twenty years in the future. Toxic tort claims typically involve large sums of money and an inestimable number of plaintiffs. The potential for tremendous, financially crippling, liability for these injuries has prompted some asbestos companies to file for reorganization under Chapter 11 of the …

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 …

Leveraged Buyouts In Bankruptcy, David G. Carlson

Articles

No abstract provided.

Erisa Retirement Plans In Individual Bankruptcy, John Minton Newell

University of Michigan Journal of Law Reform

When an employee covered by an ERISA retirement plan files a petition in bankruptcy, the court is presented with a number of complex issues regarding the relationship among ERISA, the Bankruptcy Code (Code), and the state law of creditors' rights. Three issues have emerged in these cases, and the courts have divided on the proper resolution of each of these issues. First, is the debtor's interest in an ERISA retirement plan "property of the estate," and thus available for distribution to creditors? Second, if the debtor's interest is property of the estate, and the debtor uses the state exemption scheme, …

The Bankruptcy Code And Hazardous Waste Cleanup: An Examination Of The Policy Conflict, Douglas P. Demoss

William & Mary Law Review

No abstract provided.

Substantive Consumer Bankruptcy Reform In The Bankruptcy Amendments Act Of 1984, Jeffrey W. Morris

William & Mary Law Review

No abstract provided.

Ohio V. Kovacs (In Re Kovacs), 105 S. Ct. 705 (1985), Laura Lee Barrrow

Florida State University Law Review

Bankruptcy Law-ENFORCEABILITY OF STATE ENVIRONMENTAL LAWS AGAINST BANKRUPT DEBTORS

The End Of Preference Liability For Unsecured Creditors: New Section 547(C)(2) Of The Bankruptcy Code, Darrell Dunham, Donald Price

Indiana Law Journal

No abstract provided.

The Discharge Of Partnerships And Partners Under The Bankruptcy Code, Frank R. Kennedy

Vanderbilt Law Review

The provisions of the Bankruptcy Act applicable to partnerships, partners, and their creditors were cryptic. Significant changes in these provisions made by the Bankruptcy Reform Act of 1978 have not appreciably diminished the difficulties of administering the estates of partnerships and partners in cases under Title 11 of the United States Code. The rules governing discharge of partnerships and partners and the dischargeability of their debts have given rise to a number of special problems under both the Bankruptcy Act and the Bankruptcy Reform Act. This Article undertakes to identify and analyze these problems and to suggest solutions.

Symposium On Bankruptcy, Stefan A. Riesenfeld

Vanderbilt Law Review

The Bankruptcy Reform Act of 1978, a.k.a. The Code, has now been in operation for more than a quinquennium. Thus, it is old enough to be the subject of a symposium, even if that expression is used in its original meaning of drinking party or festivity. The editors of the Vanderbilt Law Review deserve high praise for having observed that opportunity and gathered an illustrious panel of guest-participants. Special commendations are due for the hosts'success in enlisting in their offerings the cooperation of the celebrated Triple-K-Trio to regale the readership with their now almost classical performing style. Equally gratifying is …

Jurisdiction And Procedure Under The Bankruptcy Amendments Of 1984, Lawrence P. King

Vanderbilt Law Review

The complexity and possible invalidity of the 1984 amendments arise from Congress' refusal to constitute the bankruptcy courts as article III courts. The only group, if any, that this refusal has aided is the district court bench, by keeping their numbers small (except to the extent that additional bankruptcy duties re-quire additions to their numbers) and their status elite. The congressional action works against the needs of all parties involved in the functioning of the Bankruptcy Code and the judicial system itself. Debtors in Bankruptcy Code cases are left uncertain as to the authority of the bankruptcy courts adjudicating proceedings …

Chapters 11 And 13 Of The Bankruptcy Code -- Observations On Using Case Authority From One Of The Chapters In Proceedings Under The Other, David G. Epstein, Christopher Fuller

Vanderbilt Law Review

This Article will focus on the relationship between Chapter 11 and Chapter 13 of the Bankruptcy Code.' A number of issues are similar or identical in Chapter 11 and Chapter 13. Furthermore,much of the language of Chapter 13 mirrors that of Chapter 11. This Article explores whether courts should apply case law and concepts of one chapter when similar issues arise in proceedings under the other chapter. Parts II and III of this Article address basic similarities and differences between Chapters 11 and 13. Parts IV, V, and VI examine three issues governed by statutory language common to both chapters. …

The Concept Of A Voidable Preference In Bankruptcy, Vern Countryman

Vanderbilt Law Review

A bankruptcy trustee is armed by statute with a number of powers to avoid prebankruptcy transfers made by the now bankrupt debtor. Probably none of these powers is of more concern to prebankruptcy transferees than the trustee's power to avoid preferential transfers. This Article examines the content of and the reasons for the concept of a preferential transfer as it has evolved over the centuries.We inherited the notion of the preferential transfer from Eng-land; but, as elsewhere, we frequently have concluded that we could improve on the English model. Substantial differences exist,therefore, between the English law of voidable preferences and …

A Theory Of Contractual Debt Subordination And Lien Priority, David G. Carlson

Vanderbilt Law Review

Creditors distrust debtors and other creditors. Some of this in-security is dispelled by the two basic priority rules--"first in time"for secured credit and pro rata sharing for general credit. These priorities, however, are merely suppletive rules that replicate what most creditors want.' Individual creditors can have different objectives that call for different priorities. For that reason, creditors vary their rights by contract.'

Two motives exist for subordination agreements. First, a creditor may wish to subordinate its priority to induce another creditor to advance new funds. Second, a junior creditor may wish to advance credit, but the resulting increased leverage of …

The Undersecured Creditor In Reorganizations And The Nature Of Security, Theodore Eisenberg

Vanderbilt Law Review

For better or for worse, bankruptcy law generally recognizes secured creditors' state law rights in collateral. The decision to honor secured creditors' state law interests and the need to modify those interests in bankruptcy generate an essential tension of bankruptcy law. Much of the Bankruptcy Act's complexity and several of its most controversial provisions arise from congressional efforts to resolve this tension.

In trying to walk the fine line between taming and preserving secured creditors' rights, Congress created one of the most extraordinary provisions in the history of bankruptcy law. Section 1111(b) of the Bankruptcy Act of 19781 suspends two …

"Good Faith" And The Discharge Of Educational Loans In Chapter 13: Forging A Judicial Consensus, Jerome M. Organ

Vanderbilt Law Review

In the Bankruptcy Reform Act of 19781 Congress sought to accomplish many goals, some of which appear internally incompatible. For example, Congress enacted section 523(a)(8) to limit the dischargeability of educational loans in Chapter 7 liquidations. At the same time, however, Congress enacted the new Chapter 13 to encourage consumer debtors--including student borrowers--to elect repayment plans whenever feasible. Chapter 13 contains a"superdischarge" provision, which offers debtors a much broader discharge than the discharge that is available under section 523(a) in straight bankruptcy. While section 523(a)(8) excepts educational loans from discharge, section 1328(a) of Chapter 13 does not except them from …

The Undersecured Creditor In Reorganizations And The Nature Of Security, Theodore Eisenberg

Cornell Law Faculty Publications

Belly Up Down In The Dumps: Bankruptcy And Hazardous Waste Cleanup, Katherine S. Allen

Vanderbilt Law Review

In recent years, the critical risks of improper storage and disposal of hazardous and toxic substances have become frighteningly apparent,' and the regulation of hazardous waste disposal has become increasingly comprehensive and complex, on both the federal and state level. On the federal level, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Super fund Act) together provide a comprehensive statutory and regulatory scheme designed to cleanup existing hazardous waste disposal sites and to prevent the growth of future dangerous sites. Other federal statutes address in a more general way …