Bankruptcy Law Commons^™

Section 1112(B) Of The Bankruptcy Code Allows A Bankruptcy Court To Dismiss A Case Filed In Bad Faith, Antonio Sciarrotta

Bankruptcy Research Library

(Excerpt)

The United States Bankruptcy Code (the “Bankruptcy Code”) offers a wide range of instances where a bankruptcy court can dismiss a case. Section 1112(b) of the Bankruptcy Code provides that “the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause . . . .” Section 1112(b)(4) lists different scenarios that constitute “for cause.” Although not explicitly within the statutory scheme, a requirement that the debtor files his bankruptcy petition in good faith is one …

The Debtor’S Conduct At The Time Of Filing Controls In Determining Whether A Debtor Is Eligible To Convert Their Existing Case To A Case Under Subchapter V Of The Bankruptcy Code, Eric Silverstein

Bankruptcy Research Library

(Excerpt)

Congress passed the Small Business Reorganization Act of 2019 (the “SBRA”) to give small businesses a better chance to successfully reorganize under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). One of the SBRA’s most important amendments was the addition of Subchapter V to Chapter 11 of the Bankruptcy Code, which was designed to reduce the cost and complexity of a small business reorganization. Because the statute’s express terms do not address its application to existing debtors, courts have been forced to address issues of conversion and eligibility. Generally, conversion of a case is …

Do Parents Receive Reasonably Equivalent Value For Paying College Tuition For Their Children Making Such Payments Avoidable, Alexandria Stiteler

Bankruptcy Research Library

(Excerpt)

Under section 548 of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may avoid a transfer by a debtor that was an actual or constructive fraud. An actual fraudulent transfer is a transfer made with actual intent to hinder, delay, or defraud creditors. In general, a constructive fraudulent transfer is a transfer or the incurrence of an obligation by a debtor that was made within two years before the date of filing the bankruptcy petition, for less than reasonably equivalent value, at a time when the debtor was insolvent and could not pay its debts …

Timing And Location Of Comi Determined At The Timing Of Filing Chapter 15 Petition, Priya Suresh

Bankruptcy Research Library

(Excerpt)

A debtor’s center of main interest (“COMI”) is not defined under title of 11 of the United States Code (the “Bankruptcy Code”). As a result, bankruptcy courts have taken a number of different approaches to determining a debtor’s COMI. The starting place for determining COMI is the statutory rebuttable presumption that a debtor’s registered office, or habitual residence is the debtor’s COMI. If the presumption is rebutted, the party seeking recognition as a foreign main proceeding must prove by a preponderance of the evidence that the debtor's COMI is in the jurisdiction where the proceeding is pending. Under chapter …

How Courts In The Second Circuit Decide On A Stay Pending Appeal In Bankruptcy Actions, Valerie Timmerman

Bankruptcy Research Library

(Excerpt)

Absent a stay, an appeal may be mooted by actions taken while the appeal is pending. The Federal Rules of Bankruptcy Procedure permit a court to grant “a stay of a judgment, order, or decree” pending an appeal. The purpose of a stay “is to preserve the status quo pending appeal and to protect the rights of all parties in interest.” The standard for a grant or denial of a stay under Bankruptcy Rule 8007 has historically differed among courts, with some favoring the “judicial discretion” test and others opting for the “preliminary injunction” test, depending on the nature …

City’S Retention Of Impounded Vehicle Not Violation Of Automatic Stay, Alexis Zobeideh

Bankruptcy Research Library

(Excerpt)

Upon the filing of a petition under title 11 of the United States Code (the “Bankruptcy Code”), creditors and other parties in interest are generally automatically stayed from taking any action against a debtor or property of the estate. The estate includes “all legal or equitable interests of the debtor in property as the commencement of the case,” with some exceptions. The automatic stay is “one of the most important protections and powerful tools available to a debtor in a bankruptcy.”

It is well established that a creditor cannot take affirmative steps against a debtor or estate property. Prior …

Are Settlement Agreements Executory Contracts? Courts That Say “No” Give More Power To Creditors In Bankruptcy Actions, Kevin Murray

Bankruptcy Research Library

(Excerpt)

In order to provide for quick and efficient resolutions in bankruptcy cases, courts will often encourage settlement agreements. Settlement agreements are so common that it is unusual for there not to be a settlement between adversaries. Additionally, settlement agreements are favored by law to allow the parties to avoid the expense and burdens that are associated with litigating claims.

Courts have taken two approaches when analyzing disputes that involve settlement agreements. Some courts have held that a settlement agreement is a court approved contract between two adversarial parties and its interpretation is governed by the general provisions of contract …

Bankruptcy, 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.

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 …

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.

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 …

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 …

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 …

Please Recognize Me: The United Kingdom Should Enact The Uncitral Model Lawon Recognition And Enforcement Of Insolvency-Related Judgments, John A. Churchill Jr.

Brooklyn Journal of International Law

Since 1995, the United Nations Commission on International Trade Law (UNCITRAL), has been developing tools to meet the challenges of having different insolvency laws managing a single cross-border insolvency. By 1997, UNCITRAL’s Working Group V completed the Model Law on Cross-Border Insolvency. By September 2020, the original model law has been adopted by 48 countries. In Rubin v. Eurofinance SA, the U.K. Supreme Court cited a lack of authority to recognize a U.S. insolvency-related judgment in the Model Law on Cross-Border Insolvency. As a result of this decision, UNCITRAL’s Working Group V developed the Model Law on Recognition and Enforcement …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger

Brooklyn Journal of Corporate, Financial & Commercial Law

Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …

Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey

Brooklyn Journal of Corporate, Financial & Commercial Law

Automobiles have become part of America’s infrastructure. For most people, having access to a car is crucial to their livelihoods and they will take on significant amounts of debt to purchase vehicles. Auto debt is unlike any other consumer debt, both in its structure, which allows creditors to easily seize collateral, and in its lack of regulation. The unique and lucrative nature of auto debt has not gone unnoticed by lenders or by companies leveraging fintech to offer people new ways to purchase cars and car loans. This Article assesses the evolving marketplace for auto sales, leasing, and loans to …

Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …

The Singapore Global Restructuring Initiative, Aurelio Gurrea-Martinez, Smu Office Of Research

Research@SMU Infographics

The SMU School of Law has recently launched the Singapore Global Restructuring Initiative (SGRI) with the support of Ministry of Law. Led by Assistant Professor Aurelio Gurrea-Martinez, the SGRI is working on a variety of projects that seek to promote a better understanding of corporate insolvency laws.

Subchapter V: A Product Of The Small Business Reorganization Act Of 2019, Seth Snyder

Law Student Works

The Small Business Reorganization Act of 2019 (SBRA) went into effect on February 19, 2020 to provide small businesses bankruptcy relief that was previously untenable under a traditional chapter 11 reorganization. The SBRA created subchapter V of chapter 11, codified as 11 U.S.C. §§ 1181 – 1195, that is available for small business debtors with debts less than $2,725,625. The debt limit has been temporarily increased to $7,500,000 until March 26, 2021 by the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act).

The timing of the new law could not have been better considering how small businesses have …