Bankruptcy Law Commons^™

Foreclosure Sales As Fraudulent Transfers, David G. Carlson

Articles

The Supreme Court has declared that noncollusive, regularly conducted foreclosure sales are not “constructive” fraudulent transfers voidable by a bankruptcy trustee Uniform state legislation ratifies this instinct for private creditor enforcements. But collusive or irregular foreclosure sales or sales that are intended to hinder, delay, or defraud creditors are subject to creditor attack, even though unsecured creditors are not proper parties to the foreclosure process. In such cases, unsecured creditors can cloud the title obtained from foreclosure in the cases of collusion, irregularity or fraudulent intent. This article examines precisely when foreclosure sales can be avoided by unsecured creditors of …

Murder On The Chapter 13 Express, David G. Carlson

Articles

In Mortgage Corp. of the South v. Bozeman (2023), the Eleventh Circuit Court of Appeals ruled that a confirmed chapter 13 plan was unworthy of res judicata respect. In so ruling, it held itself not bound by the Supreme Court’s super-finality opinion in United Student Aid Funds v. Espinosa. The Eleventh Circuit thought that it was preventing the chapter 13 plan from “murdering” the home mortgage. In reality, the plan was lawful and upheld payment in full of the mortgage. The debtor was actually trying to end the plan early before the mortgage was paid. The Bozeman court should have …

Punishing Debtors In Bankruptcy During Covid-19, David Y. Kamins

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2019 Coronavirus Pandemic (COVID-19) led to widespread government-mandated lockdowns, causing numerous businesses to close their doors permanently. To assist financially distressed businesses and individuals during the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The Small Business Administration (SBA)—the agency tasked with implementing the CARES Act—distributed funds to individuals and businesses through the Paycheck Protection Program (PPP). Part of the SBA’s eligibility requirements to receive funding through the PPP included an exclusion provision that barred debtors presently involved in any bankruptcy proceeding from receiving any PPP funding. Many debtors in bankruptcy filed suits in …

Understanding The Neutrals In Canadian Insolvency Proceedings, Stephanie Ben-Ishai, Meena Alnajar

Articles & Book Chapters

No abstract provided.

Johnson, John T., 1820-1875 (Sc 3699), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid and scan (Click on "Additional Files" below) for Manuscripts Small Collection 3699. Case file for T. T. Melburn v. John T. Johnson, U.S. District Court for the District of Kentucky, filed 26 May 1870. Petitioner Melburn, a carpenter and stair builder of Bowling Green, Kentucky, sought an accounting for transactions during his 1869-1870 partnership with Johnson, also a carpenter, of Woodburn, Kentucky, claiming that Johnson had misappropriated assets of the firm and had committed an act of insolvency by transferring land to a relative. The inquiry, conducted by Warner Underwood as Register in Bankruptcy, included depositions from …

A Revised Perspective On Non-Debtor Releases, Joshua M. Silverstein

Law Faculty Scholarship

“Non-debtor releases” are bankruptcy orders that extinguish claims against a party other than a bankrupt debtor over the objection of the creditor. Also known as “third-party releases,” the legality of these orders is one of the most important and controversial issues in bankruptcy law specifically and business law generally. The split in the courts over the propriety of non-debtor releases stretches back thirty-five years. However, the United States Supreme Court is poised to resolve the split this term in the Purdue Pharma bankruptcy. In two prior articles published in 2006 and 2009, I argued that third-party releases are permissible under …

Divide, "Two-Step," And Conquer: How Johnson & Johnson Spurred The Bankruptcy System, Patrick Maney

University of Cincinnati Law Review

No abstract provided.

Coordination Of The Uniform Commercial Code And Common Law, Kenneth C. Kettering

University of Cincinnati Law Review

Deciding whether an issue that is in the ambit of a statute should be resolved by reference to the statute alone, or whether other sources of law should be applied, is a common interpretative task. The Uniform Commercial Code ("UCC") contains rules of interpretation that address the subject, and those rules have not been altered since the UCC was first generally enacted. Nevertheless, questions often arise on the subject under the UCC. This paper examines the UCC rules on point. The analysis is germane to the interpretation and drafting of other statutes that codify rules of private law.

A Historical Account Of The Orderly Payment Of Debts Act Reference: Limiting Provincial Efforts To Protect Insolvent Debtors, Thomas Gw Telfer, Virginia Torrie

Dalhousie Law Journal

This paper analyzes the history of the Alberta Orderly Payment of Debts Act and the constitutional controversy that followed. The legislation sought to protect debtors by imposing restrictions on creditors. In 1960, the Supreme Court of Canada in Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta) ruled that the legislation was ultra vires on the basis that it interfered with the federal bankruptcy and insolvency power. The Orderly Payment of Debts Act reference is the capstone in a trilogy of cases in which provincial legislation was invalidated for encroaching upon the federal bankruptcy and insolvency power. The …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Articles

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Enterprise, Liability, And Insolvency: An Essay In Honor Of Aaron Twerski, Edward Janger

Faculty Scholarship

No abstract provided.

Show Me The Money: How Bankruptcy Courts Could Become The Most Equitable Mass Tort Forum, Olivia Maier

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Two-Step has emerged as a dangerous bankruptcy maneuver for companies to defend against mass tort liability. The process allows a company to allocate all of its tort liability to a newly created company which then files for bankruptcy. The Bankruptcy Code provides instantaneous benefits for that new company, which tort victims are left unable to proceed with their claims. This has resulted in an inequitable process, and outcomes, for those victims as seen by the recent Johnson & Johnson Texas Two-Step. While this process is unjust, it has raised an interesting question: could a bankruptcy court become the …

Arguing Arbitration Waiver After Morgan V. Sundance A Path To Hold Debt Buyers Accountable For Abusive Collection Litigation, Noa Gutow-Ellis

Cardozo Journal of Equal Rights & Social Justice

The note examines the impact of the Supreme Court's decision in Morgan v. Sundance on consumers' ability to challenge debt buyers in court under the Fair Debt Collection Practices Act (FDCPA). It argues that Morgan has provided a significant opportunity for consumers to argue that debt buyers have waived their right to arbitration, thereby allowing consumers to pursue FDCPA claims in court rather than being forced into arbitration. The article highlights the abusive practices of debt buyers, particularly their targeting of low-income and minority communities, and proposes strategies to hold debt buyers accountable.

The Housing Bubble And Consumer Banruptcy (Parts Iii And Iv), David G. Carlson

Articles

During the COVID pandemic housing prices have soared. Consumers who have filed for bankruptcy are now looking at enormous realized and unrealized capital gains. This article assesses the chances that these consumer debtors can keep these gains out of the hands of their creditors. Part II of this two-part article addresses chapter 13 issues, which concern plan modification by the chapter 13 trustee to capture realized and unrealized capital gains. It also covers whether a trustee in a converted case can capture these gains. The law of the coverted chapter 7 case is spectacularly contradictory.

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Faculty Scholarship

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Brief For Amici Curiae Bankruptcy Law Professors In Support Of Petitioner, Pamela Foohey

Amicus Briefs

Amici, whose names and affiliations are set forth in alphabetical order on Appendix A, are law professors who study the United States’ bankruptcy system. They have published in some of the nation’s leading academic journals on corporate reorganization issues, including the case sub judice. They write solely based on their concern about the effect that the opinion below will have on this system.

Petitioner argues that the decision of the Second Circuit Court of Appeals in this case should be reversed because the United States Bankruptcy Code does not permit the nonconsensual nondebtor release (“NDR”) of the Debtors’ owners (the …

Brief Of Amici Curiae Law Professors In Support Of Appellant On The Role Of Bankruptcy Examiners In Chapter 11 Reorganization, Pamela Foohey

Amicus Briefs

Amici curiae, whose biographical information appears on Appendix A (“Amici”), are professors at law schools in the Third Circuit and around the nation. They study and write extensively about bankruptcy and related business law subjects. Their work has appeared in many of the nation’s leading academic journals, and includes path-breaking scholarship on the use of bankruptcy examiners in freefall and cryptocurrency cases.

Amici share a commitment to the transparent and efficient administration of the chapter 11 system, and a belief that the interest of the public and creditors in this large and notorious chapter 11 case must be vindicated …

Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

Over the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.

Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact …

Sovereign Debt Speculation: A Necessary Restraint Justified By A Concern For Debt Sustainability, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

The actions of funds speculating in sovereign debt, frequently nicknamed “vulture funds”, are often roundly criticized. These funds purchase distressed debts on the secondary market at reduced prices and then seek payment in court at face value plus interest and fees. Although their actions are legally justified, so-called “vulture funds” are vilified due to the negative impact of their activities on sovereign debtors and their population. While there is a strong demand for regulating sovereign debt speculation, various solutions already exist but are, in many ways, insufficient. This article argues for the adoption of a tailored regulation of the speculative …