Bankruptcy Law Commons^™

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, 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 …

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 …

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, 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, 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, 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, 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, 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, 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, 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, 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 …

Foreign Debt - Act Of State Doctrine - Unilateral Deferral Of Obligations By Debtor Nations Is Inconsistent With United States Law And Policy: Allied Bank International V. Banco Credito Agricola De Cartago, Marc J. Lewyn

Georgia Journal of International & Comparative Law

No abstract provided.

Restructuring A Sovereign Bond Pari Passu Work-Around: Can Holdout Creditors Ever Have Equal Treatment?, Natalie A. Turchi

Fordham Law Review

    The rise of vulture fund investing in sovereign bonds has created additional hurdles to successful restructuring in an already fragile ad hoc process. Recent litigation in NML Capital, Ltd. v. Argentina has proven courts’ willingness to utilize powers of equity to enforce a ratable payment interpretation of the pari passu clause—the equal treatment provision commonly found in sovereign bond contracts—creating much uncertainty on how the ruling will affect future restructuring efforts. By looking to the tension in interpretations of the pari passu clause, discrepancies in remedial relief awarded, and international institutions’ proposed solutions, this Note analyzes the role of the …

Tools Of Ignorance: An Appraisal Of Deficiency Judgments, Alan M. Weinberger

Washington and Lee Law Review

While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of property he was unable to develop or market during the Great Recession. Matheny’s failure to succeed in real estate was the proximate cause of his return to baseball as manager of the St. Louis Cardinals.

Matheny’s story provides the backdrop for examining the methods by …

Municipal Bonds In Bankruptcy § 902(2) And The Proper Scope Of “Special Revenues” In Chapter 9, Alexander D. Flachsbart

Washington and Lee Law Review

No abstract provided.

Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Himes Iversen

Law & Economics Working Papers

This book review probes Michael Waibel’s new book, Sovereign Defaults Before International Courts and Tribunals. Waibel's project is ambitious, exploring international attempts to address sovereign defaults over the past century and a half. Through painstaking and comprehensive historical analysis, Waibel shows how we've been here before -- a sober reminder for those thinking Argentina is simply part of a new fad in financial default. With the UN now turning its attention to sovereign debt issues, this study is especially timely. Although somewhat disappointing in the lightness of its normative content, the book should nevertheless prove helpful to those considering the …

The Geography Of Bankruptcy, Laura N. Coordes

Vanderbilt Law Review

Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of sophisticated parties; and (3) shuts out parties who have a right to participate in bankruptcy proceedings, which contravenes due process and raises fairness concerns. To solve these problems, this Article proposes new procedures that mandate a thorough discussion of venue considerations in bankruptcy cases. By requiring parties to justify their …

Bank Of America, N. A. V. Caulkett, Et Al.: Brief Of Bankruptcy Law Professors Robert M. Lawless, Bruce A. Markell, And John A. E. Pottow As Amici Curiae In Support Of Affirmance, John A. E. Pottow

Appellate Briefs

Amici curiae are three leading scholars of bankruptcy, commercial, and business law who have been teaching, researching, and writing about bankruptcy law for decades. They seek to provide the Court with a fuller description of the legal rules, history, and policies affected by this case.

Brief Of Professor Margaret Howard As Amicus Curiae In Support Of Respondents: Bank Of America, N.A. V. Caulkett, Margaret Howard

Scholarly Articles

None available.