In Re Montierth, 131 Nev. Adv. Op. 55,
2015
Nevada Law Journal
In Re Montierth, 131 Nev. Adv. Op. 55, Walter Fick
Nevada Supreme Court Summaries
The Court held that the separation of a promissory note, held by a principal, and the deed of trust, held by an agent of the principal, does not render either instrument “void,” or require the reunification of the note and the deed of trust in order to foreclose. The Court further held that, under Nevada law and in the case of a contractual principal-agent relationship, the recordation of an assignment of a deed of trust is a “ministerial act.”
The Timing Of Perfection Of Security Interests Under The Uniform Commercial Code And The Bankruptcy Reform Act,
2015
The University of Akron
The Timing Of Perfection Of Security Interests Under The Uniform Commercial Code And The Bankruptcy Reform Act, Richard A. Mann, Michael J. Phillips
Akron Law Review
This article will examine this new relationship as it applies to a specific problem created by the interaction between Article 9 and bankruptcy law: the timing of a "transfer" when a security interest is challenged as preferential in a bankruptcy proceeding. Resolution of this question is often critical for determining the secured party's ability to recover assets pledged as collateral when the debtor goes into bankruptcy. The article will begin by explaining the "timing of transfer" problem as it arose under Article 9 and the Bankruptcy Act. Then it will describe and evaluate the new solution provided by the Bankruptcy …
The Rejection Of Collective Bargaining Agreements Within Bankruptcy Reorganization: Reconciling A Legislative Dilemma,
2015
The University of Akron
The Rejection Of Collective Bargaining Agreements Within Bankruptcy Reorganization: Reconciling A Legislative Dilemma, Gust Goutras
Akron Law Review
In 1981, a Dallas based conglomerate, LTV Corporation, spun-off a subsidiary known as Wilson Foods. The purpose for this action was that Wilson Foods, the nation's fifth largest meat packer was suffering from financial difficulties. Shortly after the spin-off, Wilson Foods entered into a collective bargaining agreement with its unionized employees, initiating a wage freeze through 1985. Under this arrangement, Wilson Foods' losses continued to escalate.
Commodity Futures Trading Commission V. Weintraub,
2015
The University of Akron
Commodity Futures Trading Commission V. Weintraub, Thomas R. Himmelspach
Akron Law Review
After presenting a general discussion of the attorney-client privilege, this casenote will discuss the facts underlying Weintraub and then review the rationales of the Seventh Circuit and the Supreme Court in their respective holdings. This casenote will discuss other arguments which have been raised in support of the trustee's authority over the privilege. The casenote will conclude with a discussion of other policy and precedent arguments which urge that the trustee should not be given this authority.
Adequate Assurance Of Payment Under Section 366 Of The Bankruptcy Code: A Term For Interpretive Flexibility Or Judical Confusion?,
2015
The University of Akron
Adequate Assurance Of Payment Under Section 366 Of The Bankruptcy Code: A Term For Interpretive Flexibility Or Judical Confusion?, Veryl Victoria Miles
Akron Law Review
This article will focus on the interpretive struggle that the courts have encountered in making determinations of what constitutes adequate assurance of payment under section 366 and how this struggle might be eliminated so as to make compliance with the requirements of adequate assurance of payment less of a problem for the utility and bankrupt debtor. It is the thesis of this article that section 366 determinations of adequate assurance have resulted in interpretive confusion, leaving debtors and creditors with little guidance as to what criteria should be considered in negotiating an adequate assurance of payment. The recommended solution to …
Section 542(C) Of The Bankruptcy Reform Act Of 1978 And Section 4-303 Of The Ucc: A Less Than Perfect Fit?,
2015
The University of Akron
Section 542(C) Of The Bankruptcy Reform Act Of 1978 And Section 4-303 Of The Ucc: A Less Than Perfect Fit?, John P. Finan
Akron Law Review
The Uniform Commercial Code (UCC) 4-303 addresses two areas where the UCC and the Bankruptcy Code intersect. The first relates to the vulnerability of drawee banks that honor checks after their customer has taken bankruptcy (has filed a voluntary petition or is the defendant in an involuntary case); the second relates to the timing of transfers made by check under 547 of the Bankruptcy Code (the preference section). In both areas there is a less than perfect fit between the Bankruptcy Code and UCC 4-303. The first area poses problems for practitioners whose clients have received notice of bankruptcy in …
Section 547(C)(2) Of The Bankruptcy Code: The Ordinary Course Of Business Exception Without The 45 Day Rule,
2015
The University of Akron
Section 547(C)(2) Of The Bankruptcy Code: The Ordinary Course Of Business Exception Without The 45 Day Rule, David J. Desimone
Akron Law Review
This article will look at some of the principles set forth by case law and provide a more structured method of analyzing cases under section 547(c) (2). In addition, it will examine a few problem areas that are certain to arise in section 547(c) (2) litigation in the near future: (1) Does section 547(c) (2) now protect principal payments on long term debt?; and, (2) will section 547(c) (2) protect a payment to one creditor when all or nearly all other creditors were not paid during the preference period? But before doing so, a short explanation of the Code's definition …
Bankruptcy Weapons To Terminate A Zombie Mortgage,
2015
University of Missouri School of Law
Bankruptcy Weapons To Terminate A Zombie Mortgage, Andrea Boyack, Robert Berger
Faculty Publications
Bankruptcy’s strongest public policy is the possibility of a fresh start for a borrower – a way for a debtor to free himself from the burdens of pre-petition obligations and re-commence his or her financial life. A debtor can surrender property burdened by a lien to the lien-holder and thereby release him or herself from ongoing obligations under the loan. This is true even in cases where the collateral’s value is less than the secured loan – for in bankruptcy, a lender’s secured claim is limited to the value of its lien. In chapter 13, a debtor who elects to …
Bankruptcy,
2015
Mercer University School of Law
Bankruptcy, John T. Laney Iii, Daniel Taylor
Mercer Law Review
This Article offers a review of recent bankruptcy-related opinions issued in 2014 by the United States Supreme Court and courts within the Eleventh Circuit. The topics are varied, ranging from the jurisdiction of the bankruptcy courts to the ever-developing law arising from "lien stripping."
More Than Money: Emotional Distress Damages In Bankruptcy Proceedings,
2015
Mercer University School of Law
More Than Money: Emotional Distress Damages In Bankruptcy Proceedings, H. Thomas Shaw
Mercer Law Review
The bankruptcy process is often viewed as purely financial, evoking images of only dollars and cents, secured and unsecured debts, and reorganization. However, there is more involved than purely financial matters. It can be personal, emotional, and leave a lasting effect upon the debtor's life. Historically, bankruptcy could be devastating to an individual, leading to public shame and humiliation. Although the public is now more accepting of a debtor's plight, it is still a harrowing experience. Due in part to the sensitive nature of bankruptcy, the drafters of the Constitution gave Congress the ability to pass uniform bankruptcy laws throughout …
Down The Rabbit Hole: Crawford V. Lvnv Funding, Llc Upends The Role Of The Fair Debt Collection Practices Act In Consumer Bankruptcy,
2015
Mercer University School of Law
Down The Rabbit Hole: Crawford V. Lvnv Funding, Llc Upends The Role Of The Fair Debt Collection Practices Act In Consumer Bankruptcy, Brittany M. Dant
Mercer Law Review
For decades courts have faced the issue of whether the Fair Debt Collection Practices Act (the FDCPA) applies to filing proofs of claims in consumer bankruptcy cases. Courts have historically been cautious of applying the FDCPA in the realm that the Bankruptcy Code covers. As such, the majority of courts faced with this question found the answer to be a resounding "no." However, in Crawford v. LVNV Funding, LLC, the United States Court of Appeals for the Eleventh Circuit turned the tide when it held that the filing of a proof of claim on a timebarred debt in Chapter …
Not So Secure: Should Social Security Benefits Be Considered In The Good Faith Analysis Under 11 U.S.C. § 1325(A)(3)?,
2015
The University of Akron
Not So Secure: Should Social Security Benefits Be Considered In The Good Faith Analysis Under 11 U.S.C. § 1325(A)(3)?, Casey J. Davis
Akron Law Review
Part II of this Comment provides background information about Chapter 13 bankruptcy. This section is important because it provides a foundation for the remainder of this Comment. Part III of this Comment explores the source of this split and how the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) has affected this issue. Within Part III, this Comment will discuss why Congress enacted BAPCPA, the largest overhaul of bankruptcy law since its origin, and why BAPCPA did not affect the good faith requirement under § 1325(a)(3) even though BAPCPA drastically altered bankruptcy law. In addition, this section also …
Templeton V. O'Cheskey Opinion,
2015
Santa Clara Law
Templeton V. O'Cheskey Opinion, Fifth Circuit Court Of Appeals
Historical and Topical Legal Documents
No abstract provided.
Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland,
2015
John Marshall Law School
Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, Jason J. Kilborn
Pace International Law Review
In 2011, the World Bank initiated its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons). This paper describes the two-year process that led to the publication of the World Bank’s landmark Report on the Treatment of the Insolvency of Natural Persons. After examining the key content and three major themes of the Report, three of the most recent new personal insolvency regimes are introduced with an eye to identifying the ways in which the themes of the Report are reflected in these new laws. The personal insolvency provisions in Colombian law most directly …
The Bankruptcy Abuse Prevention And Consumer Protection Act: An Empirical Examination Of The Act's Business Bankruptcy Effects,
2015
Fordham University School of Law
The Bankruptcy Abuse Prevention And Consumer Protection Act: An Empirical Examination Of The Act's Business Bankruptcy Effects, Foteini Teloni
SJD Dissertations
This paper uses a multivariate logistic regression model to examine empirically and quantify for the first time the effect of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) on the Chapter 11 landscape. Two samples are tested: a general sample consisting of firms from various corporate sectors, and a sample consisting only of retailers. Both studies show that the 2005 amendments had a statistically significant effect on traditional Chapter 11 practice. In particular, post-BAPCPA we observe a rise in rapid dispositions through the form of a sale of all or substantially all debtor assets. Indeed, in the post-amendments era, …
Chapter 11 Duration, Preplanned Cases, And Refiling Rates: An Empirical Analysis In The Post-Bapcpa Era,
2015
Fordham University School of Law
Chapter 11 Duration, Preplanned Cases, And Refiling Rates: An Empirical Analysis In The Post-Bapcpa Era, Foteini Teloni
SJD Dissertations
This article empirically examines and quantifies the effect of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on three distinct aspects of the Chapter 11 process: a) the duration of traditional Chapter 11 cases; b) the use of prepackaged and prenegotiated bankruptcies; and c) debtor refiling rates. The sample studied consists of companies with more than $100 million in assets that both filed for and exited Chapter 11 between 1997 and 2014. BAPCPA is found to be associated with shorter Chapter 11 case duration, and an increased use of prepackaged and prenegotiated bankruptcies. Additionally, BAPCPA is found to be …
Preserving Value In The Post-Bapcpa Era — An Empirical Study,
2015
Fordham University School of Law
Preserving Value In The Post-Bapcpa Era — An Empirical Study, Foteini Teloni
SJD Dissertations
Through the use of a multivariate regression model, this article studies the effect on debtor reorganization values of the shortened reorganization timeframe imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). The study shows that BAPCPA is positively correlated at a statistically significant level with higher reorganization recoveries. This result is attributed to the increased proportion of prepackaged and prenegotiated bankruptcies observed in the post-2005 era, as these “fast-track” bankruptcy cases entail lower costs and better preserve the firm’s value.
Two Cheers For Universalism: Nortel's Nifty Novelty,
2015
University of Michigan Law School
Two Cheers For Universalism: Nortel's Nifty Novelty, John A. E. Pottow
Book Chapters
Individuals in the cross-border bankruptcy community hiding under rocks may not have heard about the monumental decisions in the co-trials in the Canadian-United States Nortel bankruptcy proceedings, In re Nortel Networks, Inc and Re Nortel Networks Corp. The decisions are thoughtful, innovative, practical, and important. They warrant a detailed case comment or two in their own right. This brief article, however, will not provide such worthy treatment. Those hungering for in-depth reports of the cases and their holdings may stop reading now and devote their labours elsewhere. What this article will be is an appreciation of Nortel, explaining …
Beyond Carve-Outs And Toward Reliance: A Normative Framework For Cross-Border Insolvency Choice Of Law,
2015
University of Michigan Law School
Beyond Carve-Outs And Toward Reliance: A Normative Framework For Cross-Border Insolvency Choice Of Law, John A. E. Pottow
Law & Economics Working Papers
Choice of law in cross-border insolvency is gaining increased attention, not just by lowly academics but by policymakers who actually matter. I argue it is time to bring some normative guidance to the burgeoning reform efforts. At the highest level of theoretical purity, universalism seems to have (rightly) captured the biggest following. But it has been scaled back by what I call “second-order” considerations of pragmatics to its lesser, modified form. I take that retrenchment as necessary and note how it has been deployed through a carveout-based regime of subject-specific exceptions from lex fori concursus. Given that lay of the …
Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies,
2015
Fordham University School of Law
Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch
Fordham Law Review
Municipal bankruptcies have been making national news since the “Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson County gained notoriety for the record scale of their bankruptcy filings, only to be surpassed by Detroit shortly thereafter as the largest and most populous municipal bankruptcy filing. Historically, municipal bankruptcy occurred infrequently, leaving the nuances of many critical issues, including insolvency, asset utilization, and good faith, unexplored in case law. For example, how should a bankruptcy court analyze Detroit’s cityowned art museum that houses billions of dollars of art when bondholders, pensioners, and other unsecured creditors have unpaid claims? And how should …
