Bankruptcy Law Commons^™

Bankrupting Tribes: An Examination Of Tribal Sovereign Immunity As Reparation In The Context Of Section 106(A), Joshua Santangelo

Emory Bankruptcy Developments Journal

This Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations and the federal …

Continuation Of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors' Cases To Continue Post Plan Confirmation, Alexandra R. Byrne

Emory Bankruptcy Developments Journal

A lack of direct guidance from Rule 1016 of the Federal Rules of Bankruptcy Procedure has created inconsistency among bankruptcy courts regarding whether to continue a chapter 13 case if the debtor dies post plan confirmation but before discharge. Rule 1016 allows a deceased debtor’s chapter 13 case to continue if “further administration is possible” and it is “in the best interests of the parties.” Although dismissal is appropriate if the debtor dies before plan confirmation, continuation after plan confirmation is possible and benefits all parties. The benefits of continuation post plan confirmation stem from the certainty under federal bankruptcy …

Water Under The Bridge? A Look At The Proposal For A New Chapter 16 Of The Bankruptcy Code From A Comparative Law Perspective, Tobias Wetlitzky

Emory Bankruptcy Developments Journal

In light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the inefficiencies in bond workouts by proposing a streamlined debt reorganization procedure for borrowed …

The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson Iii, Joshua A. Esses

Emory Bankruptcy Developments Journal

The purpose of this Article is to summarize the current state of the law regarding appellate standing in bankruptcy appeals within the various sister circuit courts of the United States, and to recommend how the law of appellate review of bankruptcy court orders should be applied. We will begin with a purely descriptive summary of the law of standing in federal courts and of standing to appeal orders of bankruptcy courts specifically. From this discussion it should be clear that courts almost universally limit appellate standing of bankruptcy court orders to parties that can demonstrate that they are a person-aggrieved—in …

Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher

Emory Bankruptcy Developments Journal

Disability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply the federal and state …

List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos

Emory Bankruptcy Developments Journal

This Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test considers four …

The Crypto Quandary: Is Bankruptcy Ready?, Megan Mcdermott

Northwestern University Law Review

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard- hit businesses will need to reorganize to adjust to new conditions, while out- of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer …

Lessons Learned: Robert Hoyt, Esq., Yasemin Esmen

Journal of Financial Crises

Robert Hoyt was General Counsel at the U.S. Department of Treasury between 2006 and 2009. He oversaw legal aspects of policies implemented to manage the crisis, including the rescues of Bear Stearns, AIG, and the U.S. Auto industry, the conservatorship of Fannie Mae and Freddie Mac, and the failure of Lehman Brothers, as well as the creation and implementation of the Troubled Asset Relief Program (TARP.) This Lessons Learned is based on a phone interview with Mr. Hoyt.

The Rescue Of Fannie Mae And Freddie Mac – Module A: The Conservatorships, Daniel Thompson, Rosalind Z. Wiggins

Journal of Financial Crises

Two government-sponsored enterprises (GSEs), the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), dominated the secondary mortgage market during the US housing crisis, collectively holding or guaranteeing $5.3 trillion in mortgage assets by late 2007. As the crisis escalated, the two GSEs began to report substantial losses and their survival became uncertain. On September 6, 2008, the GSEs’ new regulator, the Federal Housing Finance Agency (FHFA), placed the firms into indefinite conservatorships, one step of a four-part government intervention to stabilize the enterprises. This case study evaluates the purpose and efficacy of the …

The Rescue Of American International Group Module F: The Aig Credit Facility Trust, Alec Buchholtz, Aidan Lawson

Journal of Financial Crises

In September 2008, American International Group, Inc. (AIG) experienced a liquidity crisis. To avoid the insurance giant’s bankruptcy, the Federal Reserve Bank of New York (FRBNY) extended an $85 billion emergency secured credit facility to AIG. In connection with the credit facility, AIG issued 100,000 shares of preferred stock, with voting rights equal to and convertible into 79.9% of the outstanding shares of AIG common stock, to an independent trust (the Trust) set up by the FRBNY. Three trustees held the stock for the sole benefit of the US Treasury, exercised the rights, powers, authorities, discretions, and duties of the …

The Rescue Of American International Group Module A: The Revolving Credit Facility, Alec Buchholtz, Aidan Lawson

Journal of Financial Crises

On September 15, 2008, the big three rating agencies downgraded AIG’s credit ratings multiple levels, exacerbating liquidity strains that the company was experiencing due to increasing cash demands by securities borrowers and collateral calls by credit default swap (CDS) customers. To prevent AIG from filing for bankruptcy, the Federal Reserve (the Fed) announced on the following day that, pursuant to its emergency powers, it would provide the company with an $85 billion Revolving Credit Facility (RCF). The RCF was secured by AIG assets and interests in its subsidiaries and required AIG to grant the US Department of the Treasury a …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

The Settlement Trap, Lindsey Simon

Indiana Law Journal

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, …

The “P” Isn’T For Privacy: The Conflict Between Bankruptcy Rules And Hipaa Compliance, Sophie R. Rogers Churchill

Washington and Lee Law Review

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) included a now-ubiquitous provision designed to protect the privacy of patients’ protected health information. The provision prohibits covered entities, including health care providers and their agents, from disclosing any demographic information that may identify a patient and that relates to that patient’s medical care. The provision is broad and can include such simple information as which doctor a patient consults or the date of a patient’s consultation with a physician.

Unfortunately, such protections become impracticable in the bankruptcy setting. When a health care provider files bankruptcy, it files a host …

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review (2017-Present)

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The Court …

Tinjauan Yuridis Mengenai Anjak Piutang: Studi Kasus Tentang Perjanjian Anjak Piutang Antara Pt. A Dengan Pt. B, Lina Novita B.

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Factoring in Indonesia is financing activity in the form of short-term trade receivables purchase a company including management of that receivables. This research is normative juridical research with descriptive conceptual approach. The result in this research is factoring agreement without cessie not void the agreement as long as all the parties include the investor known and agreed with that factory agreement however before the agreement have a notary deed, there is not a prestatie that appear from that agreement. Investo (debt recognition notes) issued by investor have not legitimate and it can not void the agreement because the recognition is …

I Declare Bankruptcy! Clearing The Jurisdictional Bar On Social Security Claims In Bankruptcy Courts, Elyce Ieyoub

Louisiana Law Review

The article explains the necessity for a legislative amendment to harmonize administrative law and bankruptcy jurisdiction on social security claims in the U.S.

Abandonment Of Contaminated Property Under The Bankruptcy Code--From Midlantic To In Re Smith Douglas, What Next?, Brian Cumbo

Journal of Natural Resources & Environmental Law

No abstract provided.

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