Bankruptcy Law Commons^™

Better Than A Discharge, David G. Epstein, Tevin Bowens

Law Faculty Publications

"“It’s the Cadillac of . . .” Chilli Palmer. Traditionally, discharge has been regarded as the “Cadillac” of success in bankruptcy. Getting a discharge is as good as it can get.

When an individual debtor files for Chapter 7 or Chapter 13 and receives a discharge then, in the language of the South, the attorney for that individual has “done good.” Or, in more academic verbiage, the lawyer has achieved Chapter 7 and Chapter 13’s “end goal.” Similarly, if a business entity files for Chapter 11 and its plan is confirmed which triggers a discharge, the attorney for the business …

Corporate Restructuring Under Relative And Absolute Priority Default Rules: A Comparative Assessment, Jonathan M. Seymour, Steven L. Schwarcz

Faculty Scholarship

The European Union recently adopted a Restructuring Directive intended to facilitate the reorganization of insolvent and other financially troubled firms. Although the central goal of the Directive parallels that of chapter 11 of U.S. bankruptcy law—to protect and maximize the value of financially distressed but economically viable enterprises by consensually reorganizing their capital structure—the Directive introduces an innovative but controversial option: that EU Member States can decree that reorganization negotiations should be subject to a relative priority default rule, in contrast to the type of absolute priority default rule used by chapter 11. EU officials argue that relative priority is …

The Settlement Trap, Lindsey Simon

Scholarly Works

Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.

Setting aside the perceived unfairness of taking desperately needed money from tort victims, …

A New Approach To Executory Contracts, John A.E. Pottow

Book Chapters

Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under section 365 of the Bankruptcy Code. The case law is "hopelessly convoluted" and a "bramble-filled thicket." While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law and commentary, all would agree Jay Westbrook has been at the modern vanguard of this Sisyphean task. (1 assign Westbrook to the "modern" forefront, thereby relegating Vern Countryman, whose legacy in this domain rightly persists, to the annals of history, choosing as my perhaps arbitrary dividing line the adoption …

Bad Business, Bumble Bee And Bankruptcy, Andrew Gaither, Michael Trotter, William Salisbury

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Consumer Bankruptcy And Race: Current Concerns And A Proposed Solution, Edward J. Janger

Faculty Scholarship

No abstract provided.

Bankruptcy, Honorable Harlin D. Hale, Grayson W. Williams

SMU Annual Texas Survey

This article is a survey of relevant developments in bankruptcy law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Postpetition Proceeds Of Exempt Interests In Property – Who Owns The Appreciation?, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Raw And Pure Education In The Society, Iwasan D. Kejawa

Department of Educational Administration: Dissertations, Theses, and Student Research

What does education mean to individuals in the world today? Education is a way one can attain or improve his or her ability to lead and survive in the society of ours. Without educational training of the mind, it may be impossible to realize the importance of adaptability of living in the environment. Without education, It may also be difficult to embellish the use of both the mental and physical attributes possessed by individual beings.

What really is education? Education is the training of the mind to perform desire functions or to perpetuate the modality of obtaining an end or …

Emerging Circuit Split Over Modification Of Mortgages On Multi-Use Real Properties, Michal Zabadal

Fordham Journal of Corporate & Financial Law

For many decades, healthy levels of residential mortgage loans (“RMLs”) and their regulation have been among the major drivers of the economy. Because of the importance of RMLs for the condition of the national financial system and the general well-being of the society, it is essential that lenders are reasonably incentivized to originate these loans. A well-designed promise of higher recovery on RMLs in times of distress can be a compelling motivator. The Bankruptcy Code seeks to deliver on that promise by treating RMLs more favorably. It does that by barring the debtor-in-bankruptcy from modifying a claim secured by a …

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

Scholarly Works

This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Debt’S Emotional Encumbrances, Pamela Foohey

Scholarly Works

This chapter focuses on the role of emotions in the theory and practice of commercial and consumer credit laws, including bankruptcy, in the United States. It assesses knowledge about people’s emotions regarding personal and business financial problems, and evaluates how “money law” systems account for these emotions. This assessment finds that emotions surrounding taking on and being able to pay back debt differ between business leaders and people who shoulder household debt. These differences are traceable in large part to historical understandings of the respectability of incurring debt. This history has shaped the development of bankruptcy, commercial, and consumer credit …

In Re Kapsinow, 220 A.3d 1231 (R.I. 2019), Drew E. Bartlett

Roger Williams University Law Review

No abstract provided.

Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq.

Touro Law Review

No abstract provided.

Private Equity & Industries In Transition: Debt, Discharge & Sam Gerdano, Edward J. Janger

Faculty Scholarship

No abstract provided.

Enterprise Group Restructuring: Dutch Options And United States Enforcement, G. Ray Warner, Michael Veder

Faculty Publications

On 1 January 2021 the Dutch Wet Homologatie Onderhands Akoord, also referred to as the Dutch scheme, entered into force. The Dutch scheme represents a robust restructuring framework that incorporates many of the main restructuring concepts from both the English scheme of arrangement and US chapter 11. It also adds a few new restructuring tools that will make it easier to restructure enterprise group debt by expressly providing that a restructuring plan may include the release of group guarantees and by adopting liberal jurisdictional rules that should permit proceedings to be opened in the Netherlands for all members of …

Providing Relief After A Natural Disaster Through Credit Reports, Katherine Wecker

Seattle University Law Review

The COVID-19 pandemic forced the world to re-think systems that have been in place for decades, quickly adapting—at least temporarily— to the new normal. Among those systems was the credit reporting system. In response to the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act; an act that, among other things, amends the Fair Credit Reporting Act in regard to how credit reporting agencies should respond to delinquencies resulting from the pandemic.

This Note argues that to adapt to the increasing occurrence of natural disasters, the U.S. government must implement a system in which a consumer can …

On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo

Scholarship@WashULaw

As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered …

Racialized Bankruptcy Federalism, Rafael I. Pardo

Scholarship@WashULaw

Notwithstanding the robust national power conferred by the U.S. Constitution’s Bankruptcy Clause, the design and administration of federal bankruptcy law entails choices about the extent to which non-bankruptcy-law entitlements will remain un-displaced. When such entitlements sound in domestic nonfederal law (i.e., state or local law), displacing them triggers federalism concerns. Considerations regarding the relationship between the federal government and the nation’s smaller political subdivisions might warrant preserving nonfederal-law entitlements even though their displacement would be authorized pursuant to the bankruptcy power. But such considerations might also suggest replacing those entitlements with bankruptcy-specific ones. Some scholarship has theorized about the principles …

Policy Considerations Regarding Student Loan Debt And Higher Education, Todd R. Niemczyk Esq.

UNF Graduate Theses and Dissertations

Within the last 30 years, the policy considerations regarding student loan debt and higher education have become a series of strong opinions, heated debate, and partisan politics. Key stakeholders including the United States Government, both for-profit and traditional higher- educations institutions, financial organizations, special interest groups, and students all have interests. More so, all branches of Government, the Legislative, Judicial, and Executive, are areas where policy is both born and challenged. Some are aligned, and some are competing such that crafting sound policy regarding the lending and management of student loan debt has created a difficult situation that may well …

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron Ament, Daniel Zibel

Scholarly Works

Our nation’s consumer bankruptcy system supposedly gives “honest but unfortunate” individuals “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Access to bankruptcy’s discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase consumer bankruptcy filings. The people who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes. Student loan borrowers will find a system with even more …

The Growth Of Vancouver As An Innovation Hub: Challenges And Opportunities, Camden Hutchison, Li-Wen Lin

All Faculty Publications

This article assesses the development of Vancouver as an entrepreneurial region. Using data collected from commercial startup databases, we find that Vancouver produces more startups and receives more venture capital financing per capita than any other major Canadian city. However, we also find that Vancouver lags many U.S. cities on these same metrics. In light of our empirical findings, we explore whether differences in entrepreneurial activity between Canada and the United States are due to differences in the countries’ legal environments. We conclude that legal differences do not explain observed economic disparities, and that differences in entrepreneurial activity are due …

The Differing Standards To Obtain A Student Loan Debt Discharge, Nicholas Bonelli

Bankruptcy Research Library

(Excerpt)

Discharging student loans in a bankruptcy case is often an uphill battle. Under section 523 of title 11 of the United States Code (the “Bankruptcy Code”), student loans are presumed nondischargeable. Thus, a discharge is generally unavailable for student loans “[u]nless excepting such debt from discharge . . . would impose an undue hardship on the debtor and the debtor's dependents.” To obtain a discharge, a debtor bears the burden of showing “undue hardship” by a preponderance of the evidence. In determining “undue hardship,” a majority of courts use the Brunner Test. A minority of courts use the more …

Bankruptcy Debtors Are Ineligible For Ppp Loans, Laura Chambers

Bankruptcy Research Library

(Excerpt)

During the COVID-19 pandemic, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which established the Paycheck Protection Program (“PPP”). Under the PPP, the United States Small Business Administration (“SBA”) declared small businesses—including nonprofits, veterans’ organizations, and tribal enterprises that employ 500 people or less—as potential eligible borrowers. A borrower can use a PPP loan for a variety of purposes, such as general business costs like payroll and rent, or payments toward preexisting debts.

However, there has been some debate as to whether a debtor in a case under title 11 of the United States Code …

A Receiver Lacks Standing To Recover Fraudulent Transfers Under Ufta When Corporation Has Not Been Adequately Cleansed From Fraudulent Actions Of Ponzi Schemers, Chelsea Mcgee

Bankruptcy Research Library

(Excerpt)

A court-appointed receiver is charged with collecting the assets of an entity for the benefit of creditors. A receiver, however, only has standing to bring claims that the party in the receivership possessed. In determining whether a receiver has standing to bring a claim, it is necessary to differentiate between the types of claims that can be asserted on behalf of a corporation. First, there are actions that a receiver may bring directly against the principals of a corporation or the recipients of fraudulent transfers. Second, are common law tort claims that can be brought against a third party, …

Two Approaches For Evaluating A Debtor’S “Additional Circumstance” Under The Brunner Test To Qualify For A Hardship Discharge Of Student Loan Debt, Julie Aberasturi

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), student loan debt is typically non-dischargeable in bankruptcy, except for circumstances in which the failure to discharge “would impose an undue hardship on the debtor and the debtor’s dependents.” However, the Bankruptcy Code does not define “undue hardship.” Instead, Congress “left it up to the various Bankruptcy Courts to utilize their discretion in defining what that term means after an analysis of the statute and a review of applicable legislative history.”

In determining what constitutes an “undue hardship,” a majority of courts rely on the three-prong Brunner test …

Unqualified Student Loans Are Likely Dischargeable In Bankruptcy, Cristian Catanese

Bankruptcy Research Library

(Excepr)

As a general matter, most student loans are excepted from discharge under section 523 of title 11 of the United States Code (the “Bankruptcy Code”). The Bankruptcy Code prohibits discharge of certain student loans unless doing so “would impose undue hardship on the debtor and [their] dependents . . . .” Student debtors seeking to discharge student loan debt must file an adversary proceeding and demonstrate “undue hardship” — a difficult burden to meet. However, not all student loans may be subject to this requirement.

Jurisdictions are divided on whether unqualified student loans, i.e., loans outside the cost of …

Standing To Challenge Bankruptcy Court’S Approval Of Retiree Benefits Settlement, Inkook Choi

Bankruptcy Research Library

(Excerpt)

Section 1114 of title 11 of the United States Code (the “Bankruptcy Code”) provides in relevant part that: “the debtor in possession shall timely pay and shall not modify any retiree benefits” unless “the court, on the motion of the [debtor] or authorized representative [of the retirees,]” orders or the debtor and the authorized representative agree to the modification of such benefits. A bankruptcy court may, after notice and hearing, approve a settlement, including a settlement of retiree benefit claims, under Federal Rule of Bankruptcy Procedure 9019. Consequently, creditors and other parties in interest may voice their views on …

Bankruptcy Courts Are Divided On Reducing A Debtor’S Obligation To Pay Rent When Government Regulations Restrict A Debtor’S Ability To Generate Income, Brittany M. Clark

Bankruptcy Research Library

(Excerpt)

Many indoor retail establishments and restaurants that faced shutdowns due to the COVID-19 pandemic (the “Pandemic”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), and subsequently requested rent abatement under § 365(d)(3) of the Bankruptcy Code or state law. Notwithstanding the unique and extreme circumstances caused by the Pandemic, not all bankruptcy courts agree on the extent to which judges have the discretion to grant abatement motions for rent payments that are otherwise due under § 365(d)(3). Some bankruptcy courts have granted debtors the ability to defer post-petition …