Bankruptcy Law Commons^™

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …

Sovereign Debt Restructuring: A Model-Law Approach, Steven L. Schwarcz

Faculty Scholarship

The existing contractual framework for sovereign debt restructuring is sorely inadequate. Whether or not their fault, nations sometimes take on debt burdens that become unsustainable. Until resolved, the resulting sovereign debt problem hurts not only those nations (such as Greece) but also their citizens, their creditors, and—by posing serious systemic risks to the international financial system—the wider economic community. The existing contractual framework functions poorly to resolve the problem because it often leaves little alternative between a sovereign debt bailout, which is costly and creates moral hazard, and a default, which raises the specter of systemic financial contagion.

Most observers …

Of Progressive Property And Public Debt, Christopher K. Odinet

Faculty Scholarship

Debt is property, and, because of this, property law has a lot to say about how debts are resolved. Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars. The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law. However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized. This is particularly true, as this Article …

Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles

Articles

In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The enormous concentration of economic power in the top 1% is the culmination of decades of significant income and wealth gains for the top, combined with stagnant or decreasing growth for the majority - a trend that continues apace. But nowhere is the gap more glaring than in the civil docket, where class actions brought by or on behalf of low-income consumers and employees are on the verge of disappearing.

To be sure, the decline in class actions is only …

The Value Of A Life Story And Why The Right To An Individual's Life Story Should Not Escape Bankruptcy, Robert Sutton

Barry Law Review

No abstract provided.

Horton V. O'Cheskey Opinion, Fifth Circuit Court Of Appeals

Historical and Topical Legal Documents

No abstract provided.

Of More Than Usual Interest: The Taxing Problem Of Debt Principal, Charlene D. Luke

Seattle University Law Review

Leverage is an essential but often troubling component of the U.S. market. The financial crisis highlighted the risks and complexity of a leverage web that includes flesh-and-blood people from all walks of life and paper people from all corners of the business and investment world. In the tax area, the potentially problematic incentive effects of interest deductibility have long engaged a wide array of tax commentators and policymakers. While interest deductibility rightly receives widespread scrutiny, a more comprehensive approach to leverage is needed. This Article focuses on the surprisingly complicated tax treatment of cash (and cash equivalent) borrowings. This Article …

Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown

Fordham Law Review

    Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their citizens. Should sovereigns be obligated to pay these debts? Were the debts really incurred by the sovereign or were they incurred by the governing regime in question? What if the lender knew in advance what the proceeds would be used for? …

Book Review - Letters Of Credit: The Law And Practice Of Compliance, Benjamin Geva

Articles & Book Chapters

Letters of Credit: The Law and Practice of Compliance, by Ebenezer Adodo, is reviewed.

Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer

University of Richmond Law Review

This article will cover both consumer and business bankruptcy issues, and is limited primarily to decisions by courts within the Fourth Circuit since mid-2012. Despite these general parameters, because bankruptcy is federal law, there are some cases outside the Fourth Circuit that are included due to their influential and instructive nature. The intention of this update is to provide bankruptcy practitioners in Virginia with concise, yet compre-hensive, case summaries that will prove to be a valuable researchtool.

Becker V. Becker, 131 Nev. Adv. Op. 85 (Oct. 29, 2015), Paul George

Nevada Supreme Court Summaries

In response to a certified question by the United States Bankruptcy Court for the District of Nevada, the Court concluded that under NRS 21.090(1)(bb) a debtor can exempt his stock in the corporations described in NRS 78.746(2), but his economic interest in that stock is still subject to the charging order remedy in NRS 78.746(1).

A New Fulcrum Point For City Survival, Samir D. Parikh

William & Mary Law Review

Municipalities have historically enjoyed immense stability. This era of tranquility is over, and fiscal deterioration is accelerating. Policymakers and scholars have struggled to formulate debt restructuring options; almost all have embraced federal bankruptcy law. But this resource-draining process is not the fulcrum point for any meaningful solution to municipal demise. Indeed, for the vast majority of distressed municipalities, the lever of municipal recovery will not turn on the solutions that have been offered to date. This Article radically shifts the municipal recovery debate by arguing that state law is the centralized point at which officials can exert the necessary amount …

Unfair Practices And Practicing Attorneys: Should The Fair Debt Collection Practices Act Apply To Communications Between Debt Collectors And Debtors' Attorneys?, Yosefa A. Englard

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I discusses the history of the Act and Congress's intent behind its enactment. Part I also analyzes some of the Act's provisions relating to debt collectors. Part II examines in detail the three current approaches taken by the circuit courts for determining the applicability of the Act to communications between debt collectors and debtors' attorneys. Part III argues that none of the current approaches appropriately resolves the issue. Additionally, Part III proposes a simple two-step inquiry for courts to employ when attempting to resolve whether communications toward a debtor's attorney are actionable …

Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Insolvency, Edward Janger

Faculty Scholarship

No abstract provided.

Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley

Law Faculty Popular Media

This short article discusses the Bankruptcy Code's unusual treatment of certain intellectual property licenses. First, it gives a brief overview of § 365(n) of the Bankruptcy Code. It then provides a short analysis of a difficult but important question: If a licensee of a debtor’s intellectual property opts to retain its license rights under § 365(n), who should receive the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor in bankruptcy? The answer that has emerged in some of the case law is somewhat surprising -- after providing nuanced …

The Secured Party And His Nemesis, The Trustee In Bankruptcy: After-Acquired Property, Unidentified Proceeds, And Selected Preference Problems, John P. Finan

Akron Law Review

A trustee in bankruptcy, in addition to succeeding to the rights of the bankrupt,' has several avoiding powers. Some of these avoiding powers are based on practices which, like vice, are of "so frightful mien that to be hated [need] but to be seen." Preferences may not be included among such practices. Indeed, the English view exhibits ambivalence towards preferences. At one time it regarded "preferences [as] the good fortune of the creditor." A later view was "that the preferring of one creditor over others within a short time of bankruptcy and in contemplation thereof, was a 'fraud on the …

Access To Civil Courts - Indigents - Filing Fee; United States V. Kras, William I. Arbuckle

Akron Law Review

Robert William Kras presented his voluntary petition in bankruptcy to the United States District Court for the Eastern District of New York in May of 1971. With the petition his Legal Aid Society Attorneys filed a motion for leave to proceed without prepayment of any of the filing fees required as a prerequisite to discharge. Kras alleged that he was unable to pay the fees, even in installments, and that they should not be required of him either because (1) he was entitled to proceed in forma pauperis under the Federal Statute, or (2) because the provisions of the Bankruptcy …

Section 17a(2) Objections To Discharge Filed By Small Loan Companies In Consumer Bankruptcies: A Practical Analysis, David L. Herbert

Akron Law Review

THE ULTIMATE PURPOSE of the Bankruptcy Act' has been correctly characterized as being twofold: to distribute the bankrupt's assets fairly among his creditors and to "[Rielieve the honest debtor from the weight of oppressive indebtedness...,, thereby to accomplish the debtor's economic rehabilitation. Problems arise, however, when the debtor has not been honest in his efforts to obtain money or property on credit.

A Reappraisal Of The Indigent's Right Of Access To Bankruptcy Proceedings, Timothy E. Gammon

Akron Law Review

IN 1963, Robert F. Kennedy stated, "To a serious extent, the scales of justice in this country are weighed against the poor"' One year later, the Office of Economic Opportunity was created, which helped balance the scale in some areas by providing legal service programs2 for indigents. Nevertheless, the enormous need of legal service for indigents has not and cannot be met under present programs.' The 1964 legal service program failed to provide money for fees and court costs in judicial and administrative proceedings so petitioners who could not proceed in jorma pauperis were denied access to those proceedings. No …

Exemptions And Lien Avoidance Under The Bankruptcy Reform Act Of 1978 And Ohio Law, Karen L. Edwards

Akron Law Review

Specified property of a debtor is exempt from the bankruptcy estate. State law has generally specified the property of a bankrupt which may be exempted from the estate. The Bankruptcy Reform Act of 1978 institutes a new federal policy regarding exemptions. The new federal provisions, however, are under attack. Currently in Ohio, the applicability of the federal avoidance power contained in section 522(f) of the Bankruptcy Code is being questioned. This section provides for the avoidance of certain liens encumbering property otherwise exemptable. Legislation in Ohio specifically provides that the exemption provisions do not affect a security interest of personal …