Bankruptcy Law Commons^™

The Various Methods Circuit Courts Use To Define "Initial Transferee" In Fraudulent Transfers, Anthony J. Crasto

Bankruptcy Research Library

(Excerpt)

Transfers of a debtor's interest or obligation in property to a third party, made to prevent creditors from reaching assets in a bankruptcy case, are known as fraudulent transfers. Under current law, there are two types of fraudulent transfers: actual fraud and constructive fraud. Actual fraud requires findings of a debtor's "intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted." Constructive fraud does not require a finding of intent and occurs when a debtor receives "less than …

Erisa Withdrawal Liability Claims Unlikely To Receive Administrative Expense Priority Status In A Chapter 11 Reorganization, Bridget Golden

Bankruptcy Research Library

(Excerpt)

An employer who withdraws their participation in a multi-employer defined benefits plan is statutorily required to pay the plan a withdrawal liability. Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), provides a number of formulas to assist a multi-employer defined benefits plan's actuary with calculating the withdrawal liability amount. Congress imposed withdrawal liability on withdrawing employers "(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) ... to ensure benefit security to plan participants." An employer's ability-and willingness-to pay withdrawal liability …

Enforceability Of Third-Party Releases In Foreign Proceedings Under Chapter 15, Anastasia Greer

Bankruptcy Research Library

(Excerpt)

In our increasingly globalized world, cross-border insolvency proceedings brought under chapter 15 (herein "Chapter 15") of title 11 of the United States Code (the "Bankruptcy Code") are on the rise - with over 100 additional filings in 2020 alone. Third-party releases are provisions in bankruptcy plans intended to release non-debtors (including shareholders, directors, officers, and affiliates) from claims creditors hold against other members of their class. A third­ party release can "act as a complete release, waiver, and discharge of that party ... arising out of or in connection with the debtor and its plan of reorganization." While the …

A Debtor's Eligibility For Relief Under Subchapter V Of Chapter 11, Nicholas Hasbún

Bankruptcy Research Library

(Excerpt)

In February of 2020, the Small Business Reorganization Act of 2019 ("SBRA") became effective and added a new subchapter ("Subchapter V") to title 11 of the United States Code (the "Bankruptcy Code"). Subchapter V, which is incorporated into chapter 11 of the Bankruptcy Code, was established to create an efficient process for small business debtors to "reorganize quickly, inexpensively, and efficiently." To proceed under Subchapter V, a debtor must meet the definition of a debtor under section 1182(1) of the Bankruptcy Code and must elect its application pursuant to section 103(i) of the Bankruptcy Code. Under Subchapter V, an …

The Approval Of Retirement Contributions In Chapter 13 Payment Plans, Jennifer Hepner

Bankruptcy Research Library

(Excerpt)

In the United States, employees often contribute a portion of their annual income to their 401(k) retirement plans. These contributions may fluctuate based on age, income, or additional contributions by employers. At the same time, chapter 13 debtors are often required to pay at least a portion of what is owed to creditors as part of their court-approved payment plans. A court will only approve a debtor's chapter 13 payment plan if a debtor contributes all of his "projected disposable income" to pay creditors over the "applicable commitment period." While disposable income is defined as the "current monthly income …

Assessing The Two Tests Courts Use To Determine Dischargeability Of Student Loan Debt, Sean B. King

Bankruptcy Research Library

(Excerpt)

The purpose of bankruptcy is to give honest debtors a “fresh start.” For debtors with student loans this purpose is not automatic, rather, the viability of the student loan programs takes precedence. For student loans, the default rule is they are not dischargeable in bankruptcy. Title 11 of the United States Code (the “Bankruptcy Code”) spells this out. Under section 523(a)(8) of the Bankruptcy Code, student loans must create an “undue hardship” to be discharged.

The issue is how courts determine undue hardship under section 523(a)(8). The term “undue hardship” is not defined in the Bankruptcy Code, rather, it …

The Split In The Application Of Section 109(A) Requirements To Chapter 15 Cases, Kate Long

Bankruptcy Research Library

(Excerpt)

Chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”) governs recognition of foreign bankruptcy, insolvency, and debt-restructuring proceedings. Section 1517 of the Bankruptcy Code generally sets forth the requirements for recognition. In addition to those requirements, some courts have held that a foreign debtor must satisfy traditional debtor eligibility requirements for a debtor’s foreign proceeding to be recognized under Chapter 15. Other courts disagree and hold that a foreign debtor does not need to meet the traditional requirements for its foreign proceeding to be recognized under Chapter 15.

This memorandum explores the applicability of the …

Age As A Factor In Determining Discharge Of A Debtor’S Student Loan Debt, Julia Merani

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides for debtors a “fresh start” by allowing the discharge of most debt. To obtain a discharge of student loan debt, a debtor must demonstrate “undue hardship.” If the debt is not discharged, it must still be paid. The phrase “undue hardship” is not defined in the “Bankruptcy Code and congressional record provides little guidance as to what constitutes undue hardship . . . .” Even though Congress created a single standard for discharging student loan debt; the circuit courts have adopted different tests to determine if the undue …

Quitclaim Deeds, Divorce Decrees: Homestead Exemptions For Transferred Marital Property Across “Tenancy By The Entirety” And “Community Property” Jurisdictions, Elijah Newcomb

Bankruptcy Research Library

(Excerpt)

The quit claim deed is an instrument that transfers a property interest from a grantor to a grantee, without making any other representations. Quit claim deeds are common among spouses and divorcing couples as concerns regarding title defects are mitigated. These transfers have resulted in bankruptcy cases where a recipient-spouse receives a property interest encumbered by a lien, and tries to evade liability. A debtor can attempt to avoid a lien through an exemption. Exemptions are statutory provisions which can protect qualified property in a bankruptcy action. Section 522 of Title 11 of the United States Code (the “Bankruptcy …

Are Nonconsensual Third-Party Releases Acceptable In United States Courts, Megan O’Connor

Bankruptcy Research Library

(Excerpt)

Under Title 11 of the United States Code (the “Bankruptcy Code”), a debtor will generally be released or discharged from certain liabilities. In addition, a plan confirmed under Chapter 11 of the Bankruptcy Code may provide for a “third-party release,” pursuant to which a non-debtor, like a senior officer or shareholder, may be released from certain liabilities by creditors. There is currently a split between United States Courts of Appeals regarding the scope of who can be bound by a release by creditors: some courts permit such a release in the plan where each creditor has affirmatively consented to …

A Non-Party’S Ability To Assert A Cure Claim Under 365(B)(1)(A) In New York, Brendan Shaw

Bankruptcy Research Library

(Excerpt)

Under section 365 of title 11 of the United States Code (the “Bankruptcy Code”), “[a] trustee [or debtor], subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.” Before assumption, a debtor must promptly cure or provide adequate assurance that it will promptly cure any defaults that existed at the time of assumption. Under New York law, an intended third-party beneficiary of a contract can enforce the terms of that contract.

This Article discusses how the Southern District of New York dealt with the issue of whether an intended third-party beneficiary …

The Prospect Of A Debtor’S Future Employment Is A Factor Courts Consider When Discharging Student Loan Debt, Joe Pizzingrillo

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a debtor’s student loan debt is not dischargeable unless “excepting such debt from discharge . . . would impose an undue hardship on the debtor.” A majority of courts apply a three-prong test, known as the Brunner test, to determine if student loan debt may be discharged. Under this analysis, courts will generally consider a debtor’s prospects for future employment in deciding whether a student loan debt should be discharged. In connection therewith, courts will often take into account a debtor’s educational background and possession of a professional …

Subsequent Transferee’S Good Faith For Value Defense: The Second And Ninth Circuit’S Perspective, Alexa Schimp

Bankruptcy Research Library

(Excerpt)

Under section 548(a)(1) of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may “avoid any transfer . . . incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition” if there is either an “actual intent” fraudulent transfer or a “constructive” fraudulent transfer. The trustee, however, may not recover if a subsequent transferee can satisfy the good faith for value defense and demonstrate that it “t[ook] for value . . . in good faith, and without knowledge of the voidability of the …

The Role A Debtor’S Age Plays When Determining Whether To Discharge Student Loan Debt, Joseph Wales

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) generally provides for a broad discharge of pre-petition debts, resulting in a “fresh start” for debtors post-bankruptcy. However, section 523 of the Bankruptcy Code provides that a debtor may not be discharged from student loans unless there is a showing of “undue hardship.”

“Undue hardship” is a term of art largely dependent on the circumstances of the debtor. One common circumstance is the age of the debtor. The effect of a debtor’s age on their ability to pay can vary, so the role age plays in undue hardship analyses …

An Innovative Framework: Evaluating The New German Business Stabilization And Restructuring Law (Starug), Andreas Rauch

Northwestern Journal of International Law & Business

This comment examines the restructuring framework, restrukturierungsgesetz (“StaRUG”), and argues that this new law represents an effective—albeit radical—departure from Germany’s previous, conservative insolvency regime. Passed in response to a 2019 EU Directive aimed at modernizing restructuring law Union-wide, and integrated into the German legal system against the backdrop of the COVID-19 pandemic, StaRUG and its ancillary reforms in other areas of German law create a restructuring proceeding that places a premium on a debtor’s continued business operations. Thus, in a striking shift from the traditional German approach to business distress, which strongly emphasized creditor rights, the new StaRUG focuses on …

Bankruptcy, Harlin D. Hale, Grayson Williams

SMU Annual Texas Survey

No abstract provided.

A Process For Politics, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

I argue that consistent and public process observance has a distinctly valuable function in sovereign debt restructuring, with no precise equivalent in national insolvency regimes. National regimes reflect the distribution bargains of their enactment, presumptively legitimate and binding. Debtors and creditors allocate insolvency losses in their shadow, with liquidation as a backstop and politics just outside the frame. All else equal, the restructuring process has a harder job with sovereign debt. There is no liquidation backstop and no default distribution scenario. Each crisis resolution episode must allocate losses from scratch among the country’s citizens, foreign and domestic creditors, and other …

Blurring The Line Between Student And Employee: Exploitation Of For-Profit College Students, Michele Abatangelo

Touro Law Review

For decades, for-profit colleges throughout the United States have exploited their students through a predatory business model. In February 2022, the Education Department approved $415 million in borrower defense claims for nearly 16,000 students who attended for-profit schools finding that these schools misrepresented post-graduation employment prospects. For-profit colleges also use manipulative recruitment tactics such as targeted advertising of low-income and minority students and providing false information to prospective students about loan repayment obligations post-graduation. Some for-profit institutions also rely on student labor in their facilities rather than hiring paid employees. This review discusses why it is imperative that courts scrutinize …

Brief Of Amica Curiae Deborah A. Demott In Support Of Petitioner, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Against Bankruptcy Exceptionalism, Jonathan M. Seymour

Faculty Scholarship

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to …