Bankruptcy Law Commons^™

The Long And Winding Road To The Small Business Reorganization Act: Why Our Next Stop Should Be Simplicity And Accessibility, Daniel O'Hare

West Virginia Law Review

No abstract provided.

When Is A Debt "Obtained By" Fraud?: Reconsideration Of The Fraud Nondischargeability Exception Under Section 523(A)(2) Of The Bankruptcy Code, Theresa J. Pulley Radwan

West Virginia Law Review

No abstract provided.

Bankruptcy, John T. Laney Iii, Victoria Barbino Grantham

Mercer Law Review

Following the pandemic-related drop in bankruptcy filings during 2020, bankruptcy filings for both individuals and corporations continued to decline in 2021. Experts disagree about the cause of the decrease of filings during a period many believed would see a windfall. Some cite government stimulus programs for both individuals, and corporations, others low-lending rates which allowed companies to access capital more freely, and some believe court closures and backlogs have discouraged parties from formal judicial restructuring. No matter the cause, all experts expect filings to increase in 2022.

The United States Court of Appeals for the Eleventh Circuit issued several notable …

Fred M’Membe And Post Newspapers Limited (In Liquidation) V. Abel Mboozi And Others Scz Appeal No. 07/2021, Chanda Chungu

SAIPAR Case Review

The Supreme Court in this case dealt with the liquidation of the Post Newspapers, a company which was responsible for publishing the popular The Post newspaper. A group of people who claimed to be creditors of the Post filed a petition in the High Court for the winding up of the company. Mr. Lewis Chisanga Mosho was subsequently appointed as the provisional liquidator.

The appeal before the Supreme Court dealt with issues and questions relating to the proper procedure and process relating to the liquidation and the liquidator, the role of the court and the rights of shareholders and directors …

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Benign Language On Letters From Debt Collectors And Avoiding Violations Of The Fair Debt Collection Practices Act, Sebastian West

University of Cincinnati Law Review

No abstract provided.

The Great Escape: Exploring Chapter 11’S Allure To Mass Tort Defendants, Natalie R. Earles

Louisiana Law Review

The article explores Chapter 11 bankruptcy proceedings as a defense strategy used by mass tort defendants to escape unfavorable litigation and proposes the U.S. Congress to revise the Bankruptcy Code to disincentivize the misuse of bankruptcy power.

Reigning In Regulatory Overreach: Ferc’S Role In Bankruptcy, Bradley G. Oster

Louisiana Law Review

The article examines points of law governing the role and jurisdiction of the U.S. Federal Energy Regulatory Commission (FERC), including the Federal Power Act's (FPA) field rate doctrine and Mobile-Sierra doctrine and the Bankruptcy Code, in bankruptcy-related litigations.

Federally Mandated Online Sales Tax: A Logistical Solution For The Future Of E-Commerce, Daniel O'Connor

DePaul Business & Commercial Law Journal

No abstract provided.

Economic Structural Transformation And Litigation: Evidence From Chinese Provinces, To Economic Change And Restructuring, Doug Bujakowski, Joan Schmit

DePaul Business & Commercial Law Journal

No abstract provided.

The "Business Interruption" Insurance Coverage Conundrum: Covid-19 Presents A Challenge, Paul E. Traynor

DePaul Business & Commercial Law Journal

No abstract provided.

Misalighned Incentives In Markets: Envisioning Finance That Benefits All Of Society, Dr. Ryan Clements

DePaul Business & Commercial Law Journal

No abstract provided.

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 …

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

True Sales Or Secured Transactions? The Contract Is Not Dispositive, Daniel Mosayov

Bankruptcy Research Library

(Excerpt)

Receivables are debts owed to a company for goods or services. A company seeking liquidity may sell the future interest in receivables generated through operations or use the future interest in receivables as collateral to secure a loan. The parties’ rights will vary depending on whether the receivables are sold or used as collateral. If sold, the buyer holds absolute ownership of the acquired receivables protected from other interests. If the transaction is a loan, the lender holds a security interest in the receivables, which may be junior to other interests.

A bankruptcy court can recharacterize a transaction as …

A Foreign Debtor Who Lacks Permanent Residence In The U.S. May Qualify For Florida’S Homestead Exemption, Jenna Kirkland

Bankruptcy Research Library

(Excerpt)

The home has special significance under Florida law, as public policy favors property ownership, citizen independence, and preserving a home where a family can be sheltered and “live beyond the reach of economic misfortune.” Generally, once an individual files for bankruptcy, all property of the debtor becomes property of the estate. However, Section 522 of title 11 of the United States Code (“Bankruptcy Code”) allows a debtor to exempt certain property from the estate. The Bankruptcy Code permits states to opt out of the federal exemption scheme provided. Florida is one of the states that has opted out, therefore …

The Features And Limitations Of Asbestos Settlement Trusts: A Primer, Michael Quintman

Bankruptcy Research Library

(Excerpt)

Section 524 of title 11 of the United States Code (“Bankruptcy Code”) prevents creditors from recovering pre-bankruptcy debts after plan approval if their recovery was not already provided for in the approved bankruptcy plan. Subsection (g) of section 524 provides a special procedure for debtors previously engaged in the sale or production of asbestos-containing products to restructure while ensuring those injured through exposure to those products are compensated. In particular, section 524(g) provides for the formation of a trust that can settle asbestos related tort claims after the plan has been confirmed by a bankruptcy court. These trusts are …

Chapter 15 Recognition Is Necessary For Efficient And Consistent Cross-Border Proceedings, Sarah Franzetti

Bankruptcy Research Library

(Excerpt)

When Chapter 15 of title 11 of the United States Code (the "Bankruptcy Code") was adopted in 2005, it repealed the former section 304, which had often led to ad-hoc and inconsistent rulings for foreign debtors seeking assistance in U.S. bankruptcy courts. The new Chapter was passed to achieve greater efficiency on a domestic scale, as well as the "fair and efficient administration of cross-border insolvencies" by promoting greater cooperation between U.S. and foreign courts. For a foreign debtor to reap the benefits of this cooperation, a representative of the foreign bankruptcy proceeding must petition a U.S. bankruptcy court …

Granting Derivative Standing To A Creditors’ Committee, Jordan Milite

Bankruptcy Research Library

(Excerpt)

A party has “standing” (the right to challenge the conduct of another in court) when that person or entity has suffered an “injury in fact.” “Derivative standing” is when a person or entity other than the harmed party steps in to assert the claim in place of the harmed party. In a case under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy court may grant derivative standing to a creditors’ committee or similar body, rather than the bankruptcy estate itself, to bring a claim on behalf of a debtor’s estate. This often …

The Ability To Set And Enforce Bar Dates And Determine Untimely Administrative Expense Claims In A Chapter 11 Case, Kayla Nieves

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) does not expressly provide that bankruptcy courts may set and enforce deadlines, i.e., “bar dates,” for administrative expense claims. The Bankruptcy Code also does not expressly define “timely” or “tardy” administrative expense claims. Courts, however, have interpreted sections 105 and 503 of the Bankruptcy Code as sufficiently broad to provide bankruptcy courts with discretion to establish bar dates and allow untimely filed administrative expense claims “for cause.”

This memorandum explores the decisions that have addressed a bankruptcy court’s ability to set and enforce bar dates and to determine what …

Constitutionality Of Non-Uniform Quarterly Fees, Michael Francis Pecorella

Bankruptcy Research Library

(Excerpt)

In the United States, there are two different government entities entrusted with overseeing the administration of cases under title 11 of the United States Code (the “Bankruptcy Code”). In all but two states, the Office of the United States Trustee, which is a part of the Department of Justice, oversees the administration of bankruptcy cases. In North Carolina and Alabama, the two states that do not have a United States Trustee system, a Bankruptcy Administrator, which is funded by and housed in the Judicial Conference, oversees the administration of bankruptcy cases. The U.S. Trustees and the Bankruptcy Administrators generally …

When A Critical Vendor May Be Insulated From Preference Liability, Michael A. Solimani

Bankruptcy Research Library

(Excerpt)

Under Title 11 of the United States Code (the “Bankruptcy Code”) a trustee or debtor in possession (“DIP”) may avoid certain payments made by the debtor to a creditor within ninety days prior to filing for bankruptcy, or one year if the creditor is an insider. The Bankruptcy Code contains certain defenses to preference claims. A court may also release a creditor from such claims. Such a release may be found in orders approving payment of pre-petition claims to a “critical vendor.” Absent such an express release, it is unclear whether a trustee or DIP is precluded from pursuing …

Circumstances Under Which A Court Will Dismiss A Chapter 11 Filing Made In Bad Faith, Nicholas Wogan

Bankruptcy Research Library

(Excerpt)

Under section 1112(b) of title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy court may dismiss a Chapter 11 filing “for cause.” It is a generally accepted principle that “for cause” dismissal includes dismissal of filings made in bad faith, and this concept originates in a need for bankruptcy courts to uphold the jurisdictional integrity of the Chapter 11 process from those who would seek to abuse it. Courts deciding whether dismissal for bad faith is warranted typically employ a two-step analysis: first to determine whether a bad faith filing is “cause” for dismissal under section …

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

Bankruptcy Grifters, Lindsey Simon

Scholarly Works

Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.

But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …

Cannabis Receiverships: The Alternative For State Legal Cannabis Businesses Seeking Financial Rehabilitation Locked Out Of Bankruptcy Court By The Controlled Substances Act, Ryan C. Griffith

Seattle University Law Review

This article explores how cannabis businesses suffer by being unable to utilize federal bankruptcy and explore state law receiverships as an alternative remedy to help cannabis businesses weather financial storms.

Part I explores the limitations and differences between a receivership and a bankruptcy. Part II discusses how state legal cannabis companies cannot seek financial rehabilitation in bankruptcy court due to cannabis being listed as a schedule I drug federally. Part III explores how receivership be used to help cannabis companies that cannot seek bankruptcy protection to financially rehabilitate themselves. Part IV details how a receiver can help a cannabis company …