Bankruptcy Law Commons^™

Choosing The "Per-Debtor" Approach To Plan Confirmation In Multi-Debtor Chapter 11 Proceedings, Suzanne T. Brindise

Northwestern University Law Review

No abstract provided.

Feeling Insecure—A State View Of Whether Investors In Municipal General Obligation Bonds Have A Mere Promise To Pay Or A Binding Obligation, Randle B. Pollard

Scholarly Articles

The City of Detroit's filing for municipal bankruptcy in July, 2013, has added to a continuing controversy of whether general obligation bondholders have a secured lien. The City of Detroit claimed its general obligation bondholders did not have a fully secured lien because the law of the state of Michigan did not create a statutory lien. Without the creation of a lien by state law, during the insolvency or bankruptcy of municipalities, general obligation bondholders will potentially have a mere promise to pay versus a binding obligation to pay, and therefore, will not have a secured lien. Treating otherwise secured …

In Re Tellico Landing, Llc, Richard E. Graves, Lee T. Nutini

Chapter 11 Bankruptcy Case Studies

No abstract provided.

The Enforceability Of Abatement Provisions, Shantel Castro

Bankruptcy Research Library

(Excerpt)

The moment a lease is executed, a set of obligations and rights are created between the landlord and tenant. In exchange for the payment of rent, the landlord is required to provide a space suited for the intended purpose of the rental. In addition, both parties are obligated to abide by any specific terms in the lease. Among those terms may be an abatement provision. An abatement provision is a clause in the lease that releases a lessee from the obligation to pay rent when a particular event occurs. The specific triggering event is usually listed in the lease. …

The Permissibility Of Chapter 11 Non-Debtor Release Provisions, Ashraf Mokbel

Bankruptcy Research Library

(Excerpt)

Generally speaking, bankruptcy proceedings do not impact non-debtor third parties liabilities. However, bankruptcy courts are courts of equity. This raises the issue of what provisions may be included in a confirmable plan. Specifically, there is the issue of whether a bankruptcy court can confirm a plan if it contains a non-debtor release provision which impacts non-debtor third party liabilities.

A non-debtor release provision shields third parties who share an identity of interest with the debtor, usually corporate officers and directors in a Chapter 11 proceeding, from any claim, obligation, cause of action, or liability to any party in interest …

Bankruptcy And Higher Education Institutions, St. John’S University School Of Law Symposium, Scott F. Norberg

Faculty Publications

No abstract provided.

The Logic And Limits Of Liens, Edward J. Janger

Faculty Scholarship

No abstract provided.

Despite A Very High Income, Chapter 7 Debtor’S May Succeed, Pamela Frederick

Bankruptcy Research Library

(Excerpt)

Section 707 of the Bankruptcy Code governs when a court may dismiss a chapter 7 bankruptcy case. Under section 707(a), a court may dismiss a chapter 7 case “for cause.” In 2005, Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) and amended section 707(b) to include the so-called “means test,” which provides a formula for determining whether “cause” exists to dismiss (or convert with the debtor’s consent) the debtor’s case. Courts split as to whether this amendment to section 707(b) permits a court to consider the debtor’s income when deciding whether to dismiss the debtor’s chapter …

Whether Rejection Of A Trademark License Agreement Terminates The Licensee's Rights To Use The Trademark, Crystal Lawson

Bankruptcy Research Library

(Excerpt)

Section 365(a) of the Bankruptcy Code sets forth the basic power of a trustee in bankruptcy or a debtor in possession to assume or reject an executory contract. A debtor's ability to assume or reject an executory contract allows a debtor to keep favorable contracts and to discard burdensome contracts, subject to the bankruptcy court’s approval. The bankruptcy court will apply a two-part test to determine whether assumption or rejection should be allowed. First the court will determine whether the contract is executory. If the court determines that the contract is executory, the court will then determine whether assumption …

Determining The Meaning Of “Instrumentality” In The Bankruptcy Code, Nicholas Panzarella

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code dictates who is eligible to be a debtor in bankruptcy. Section 109(a) generally provides that “a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under [the Bankruptcy Code].” Although a debtor that is a “person” or a “municipality” maybe eligible to file for bankruptcy, section 109 restricts which chapters that a debtor may file under. In particular, subject to various restrictions, a “person” may be a debtor under chapter 7, 11, 12, or 13. A municipality, however, is only eligible …

The Applicability Of The Eleventh Amendment In Chapter 9 Cases, Christopher J. Pedraita

Bankruptcy Research Library

(Excerpt)

The sovereign immunity of the states, or the freedom of a state from suit by its citizens, became constitutionally protected in the late eighteenth century through the passage and ratification of the Eleventh Amendment. In particular, the Eleventh Amendment protected states from suits “commenced or prosecuted…by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Notwithstanding the plain language, the Supreme Court has held that the Eleventh Amendment also bars suits against a state that are commenced by citizens of its own state. Moreover, the Eleventh Amendment also bars suits by municipalities brought against the …

Defining Residency Under The Federal Homestead Exemption, Sally Profeta

Bankruptcy Research Library

(Excerpt)

The homestead exemption is a longstanding doctrine in American jurisprudence that protects the interest debtors have in their dwelling when filing for bankruptcy. Section 522(d)(1) of the Bankruptcy Code’s federal exemption scheme provides debtors with the opportunity to preserve the interest they have in their residence, with outside limits on the amount that interest is valued. However, courts are divided on the interpretation of the word “residence,” and have struggled to determine whether “residence” requires actual occupancy of the claimed property at the date of filing.

There are two cannons of statutory interpretation that are used in this context, …

Legitimizing Bankruptcy Petition Preparers: A Sociolegal Prescription For Change, 89 American Bankruptcy Law Journal 269 (2015) (Peer-Reviewed Journal), Michael D. Sousa

Sturm College of Law: Faculty Scholarship

Individuals who need to file for bankruptcy often find themselves confronted with the very real dilemma of desperately needing financial relief on the one hand and affording the high costs of accessing the bankruptcy law system on the other. The decision to resort to bankruptcy comes at a financially precarious time in most peoples’ lives and often after an exogenous life event pushes them over the financial precipice. Given that many consumer debtors come from the lower middle class and working class, many have a difficult time finding the funds to pay for the necessary access costs, most notably, attorney …

The Logic And Limits Of Liens, Edward Janger

Faculty Scholarship

No abstract provided.

Getting More Than Justice On Paper: Bankruptcy Priorities And The Crisis Of Unpaid Wages, Omer Kimhi

Hofstra Law Review

The article discusses the legal aspects of bankruptcy wage priorities and unpaid wage claims in America as of 2015, and it mentions the U.S. Bankruptcy Code, as well as justice and the author's support for the adoption of an insurance-based model to help protect the legal rights of employees, employers, and unsecured creditors in America. Bankruptcy-related costs are examined, along with legal remedies and the problems associated with employees' efforts to collect unpaid wages from employers.

Symposium Foreword, J. Rich Leonard

Campbell Law Review

No abstract provided.

The Disguise Of Municipal Bonds: How A Safe Bet In Investing Can Become An Unexpected Uncertainty During Municipal Bankruptcy, Maryjane Richardson

Campbell Law Review

No abstract provided.

Pensions Or Paintings?: The Detroit Institute Of Arts From Bankruptcy To Grand Bargain, 24 U. Miami Bus. L. Rev. 1 (2015), Maureen Collins

UIC Law Open Access Faculty Scholarship

This article examines the issues faced by the City of Detroit and the Detroit Institute of Arts when Detroit filed for municipal bankruptcy. Creditors called for the sale of the highly esteemed DIA art collection to pay outstanding municipal pension obligations. The DIA and the Michigan Attorney General viewed the collection not as an asset, but as a charitable public trust. Simply put, the City faced the question of what mattered most – pensions or paintings? Along the way, the parties and courts struggled with valuation of the art collection, a history of judicial decisions and lawmaking regarding charitable trusts …

Chapter 9 Plan Confirmation Standards And The Role Of State Choices, Juliet M. Moringiello

Campbell Law Review

No abstract provided.

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

Reviews

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 …