Principles of Bankruptcy Law
Authors:
Epstein, David G. / Nickles, Steve H.
Edition:
2nd
Copyright Date:
2017
29 chapters
have results for bankruptcy
Unit 1 Question One: What Is Bankruptcy Law? 106 results (showing 5 best matches)
- Bankruptcy law is federal law. Article I of the Constitution empowers Congress to “establish uniform laws on the subject of Bankruptcies throughout the United States.” For most of the 20th century, bankruptcy law was the Bankruptcy Act of 1898, commonly referred to as the “Bankruptcy Act.” It was replaced in 1978 by a law commonly referred to as the “Bankruptcy Reform Act of 1978” or “Bankruptcy Code.” The Bankruptcy Code has been regularly amended; the most comprehensive bankruptcy amendments were enacted in 2005.
- 3, and 5 of the Bankruptcy Code
- Bankruptcy law is also in large part state law. We are not here suggesting that there are state bankruptcy laws. Since Article I of the Constitution empowers Congress to enact uniform laws of bankruptcy and Congress has enacted such laws, principles of federal supremacy preclude state legislatures from enacting bankruptcy laws. Rather, bankruptcy law is in large part state law because (1) in places, the Bankruptcy Code expressly incorporates state law [every time you see the phrase “applicable law” in the Bankruptcy Code, think state law and, to a lesser extent, federal law other than the Bankruptcy Code] and (2) in other places, courts applying the Bankruptcy Code look to state law to determine questions such as what are the property rights of the debtor and what are the claims of the creditors to that property.
- Third, the vocabulary of bankruptcy law is different from the vocabulary of state collection law. The Bankruptcy Code uses technical terms such as “property of the estate” and “automatic stay” that are not a part of state law. And the Bankruptcy Code uses other terms that are a part of state law such as “claim” and “secured claim” differently than state law. Accordingly, it is very important that you consistently and persistently check for the Bankruptcy Code’s definition of terms used in the Bankruptcy Code.
- Look first to the language of the federal statute, the Bankruptcy Code, for answers to bankruptcy questions. It will also be necessary to look to case law for answers to questions that are (1) not addressed by any language in the Bankruptcy Code, (2) addressed by less than clear language in the Bankruptcy Code.
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Unit 4 Question Four: How Does an Individual Bankruptcy Case Begin? 18 results (showing 5 best matches)
- Any bankruptcy case, individual debtor or business entity debtor, begins with the filing of a bankruptcy petition. More than 99% of the bankruptcy petitions are filed by the person seeking bankruptcy relief, by the “debtor.” Remember that these bankruptcy cases are called “voluntary cases” by both section 301 and law professors.
- Less than 1% of the bankruptcy petitions are filed by creditors against a debtor. And, these bankruptcy cases are called “involuntary cases” by both section 303 and law professors. Both sections 301 and 303 provide that the case is “commenced” when a petition is filed by or against an eligible debtor.
- Credit counseling is what an individual debtor has to do before bankruptcy. BAPCPA adds a requirement of prebankruptcy credit counseling. Section 109(h) makes an individual ineligible to file for bankruptcy under any of the chapters unless within 180 days before her bankruptcy filing she received credit counseling from an agency approved by the United States Trustee. This “counseling” can be a group briefing and can be by telephone or on the internet.
- Again, subject to a very limited statutory exception, this credit counseling must be done before the bankruptcy filing. Courts routinely dismiss bankruptcy petitions filed by individual debtors who are unable to file with their bankruptcy petitions a certificate of briefing by an approved credit counseling agency. And, such a dismissal has continuing practical consequences. If after dismissal the debtor obtains the counseling and files another bankruptcy petition, she will have only a 30 day automatic stay which can be extended only on stringent terms, section 362(b)(3).
- For some law professors, however, railing against the credit card issuers and the rest of the consumer finance industry, their lobbyists, and their “bought Congress” is a cause. If your professor is in that group, then you need to read carefully the next two parts on what an individual has to do (and not do) before filing for before bankruptcy and what an individual must file with her bankruptcy petition because it might be on you exam.
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Unit 16. A Typical Chapter 7 Case 138 results (showing 5 best matches)
- Technically, federal district courts have jurisdiction of bankruptcy cases. However, “[e]ach district court may provide that
- “Your bankruptcy case may also involve litigation. You are generally permitted to represent yourself in litigation in bankruptcy court, but only attorneys, not bankruptcy petition preparers, can give you legal advice.”
- Payments related to debt counseling or bankruptcy. List all payments made or property transferred by or on behalf of the debtor to any persons, including attorneys, for consultation concerning debt consolidation, relief under the bankruptcy law or preparation of the petition in bankruptcy within one year immediately preceding the commencement of this case.
- It creates an injunction against creditors acting to collect debts that are discharged. So, if a creditor sues the debtor after bankruptcy in state or nonbankruptcy, federal court, the debtor will assert the bankruptcy discharge as a defense. If the creditor responds that her claim was not discharged because it’s not a debt that fits section 524 or 727
- “IMPORTANT INFORMATION ABOUT BANKRUPTCY ASSISTANCE SERVICES FROM AN ATTORNEY OR BANKRUPTCY PETITION PREPARER.
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Unit 3. Question Three: Where Do Lawyers Do Bankruptcy? 48 results (showing 5 best matches)
- Under the Bankruptcy Act of 1898, bankruptcy courts had limited jurisdiction. This jurisdiction was commonly referred to as “summary” jurisdiction. (The phrase summary jurisdiction is somewhat misleading. First, it incorrectly implies that under the Bankruptcy Act of 1898, bankruptcy courts had a second, nonsummary form of jurisdiction. Bankruptcy courts had only summary jurisdiction; other courts had plenary jurisdiction. Second, it incorrectly implies that in resolving controversies, the bankruptcy judge always conducted summary proceedings.)
- , Congress was urged to solve the constitutional dilemma by establishing bankruptcy courts as Article III courts. Congress rejected this solution. Instead, Congress in 1984 made the bankruptcy court a part of the federal district court, conferred jurisdiction in bankruptcy on the district court, and allocated judicial power in bankruptcy matters between the federal district judge and the bankruptcy judge.
- In understanding the present law allocating judicial powers over bankruptcy matters, it is necessary to understand three separate sections in title 28: (1) § 151, (2) § 1334, and (3) § 157. By understanding these three provisions you will understand that (1) bankruptcy courts are a part of the United States District Court but bankruptcy judges are different from district court judges, (2) bankruptcy cases are different from bankruptcy proceedings, (3) bankruptcy cases can be handled by either bankruptcy judges or federal district judges (depending on withdrawal of the reference), but not by state court judges and (4) bankruptcy proceedings can be tried by bankruptcy judges or federal judges (depending on withdrawal of the reference) or even state court judges (depending on where the lawsuit was filed and removal and abstention). To
- Section 151 refers to a bankruptcy judge and a bankruptcy court as a “unit” of the district court. It is important to keep this reference in mind when reading other sections in title 28 dealing with the allocation of judicial power in bankruptcy matters. When the term “district court” appears in section 1334 or section 157, it could be referring to the United States district judge and/or the bankruptcy judge. After all, the bankruptcy judge is a part of the district court—a “unit” of the district court.
- Clearly, section 1334 confers jurisdiction over bankruptcy matters to the district court. It is equally clear that most federal district judges have neither the time nor the inclination to exercise this bankruptcy jurisdiction. Accordingly, section 157 empowers the district judge to refer bankruptcy matters to a bankruptcy judge. And, in every district, the federal district judges have issued a “blanket reference,” referring all bankruptcy cases and proceedings to the bankruptcy judge.
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Unit 6 Question Six: What Are the Immediate Legal Consequences of a Bankruptcy Filing? 18 results (showing 5 best matches)
- What is important for you to remember is that for voluntary bankruptcy cases, i.e., the more than 99% of all bankruptcy cases in which the debtor filed the bankruptcy petition, the date of the filing the bankruptcy petition is BOTH the date of the commencement of the case and the date of the order for relief. If
- Similarly, the automatic stay protecting the property of the estate from creditors becomes legally effective from the moment that a bankruptcy petition is filed. Not the time that a creditor learns of the bankruptcy filing but the time of the bankruptcy filing.
- Property of the estate is one of the important bankruptcy concepts that uses “commencement of the case,” i.e., the date that the bankruptcy petition, was filed as a point of reference. Under section 541 an estate is created the instant the bankruptcy petition is filed regardless of whether the petition is for Chapter 7 relief, Chapter 11 relief, or Chapter 13 relief.
- A payment obligation that arose before the bankruptcy filing is often treated different from a payment obligation in applying basic bankruptcy concepts For example,
- Trailer Park’s bankruptcy, it owes Nickles $100. Nickles continues to work as a security guard after
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First Comments to Students 9 results (showing 5 best matches)
- We understand that different teachers teach and test bankruptcy law differently. We have taught at 20 different law schools, and we teach and test the basic bankruptcy/creditors course differently each time that we teach. We have taught courses that separate business bankruptcy from consumer bankruptcy and courses that combine business bankruptcy and consumer bankruptcy; we have taught courses primarily from problems and courses primarily from cases; we have used take-home exams and in-class exams and essay questions, multiple choice questions and true-false questions.
- three-volume bankruptcy treatise, does not cover all of bankruptcy law. We just cover all of the bankruptcy law that your exam is going to cover.
- what legal issues can arise in a business bankruptcy case and what legal issues can arise In a consumer bankruptcy case and
- We think that this book can be helpful to the lawyer who wants to excel in her law firm bankruptcy work or the law student who still wants to be a “gunner” in his third year of law school. That is not why we wrote the book though. Again, we have written the book with the primary objective of making your grade on your bankruptcy/creditors rights test, your best grade in law school.
- of basic bankruptcy concepts
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Unit 5. Question Five: How Does a Business Bankruptcy Case Begin? 18 results (showing 5 best matches)
- Any bankruptcy case begins with the filing of a bankruptcy petition. Recall from Unit 4 that most bankruptcy petitions involving individuals are filed by the debtor under section 301. Similarly, most bankruptcy petitions involving businesses are filed by the debtor.
- Generally, any business entity can file for bankruptcy under Chapter 7 or Chapter 11. More specifically, here are the three things that you need know for your exam about which businesses can file for bankruptcy.
- Second, eligibility for bankruptcy never depends on insolvency. Even if a business entity is solvent, it can file for bankruptcy.
- Third, business entities are not eligible to file for bankruptcy under Chapter 13. Only individuals can file for bankruptcy relief under Chapter 13.
- Again, most of what businesses do before filing for bankruptcy are business decisions, not legal decisions. The legal consequences of a bankruptcy filing of course obviously affect these decisions. We will be covering these legal consequences in later chapters.
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Unit 10. Question Ten: What Does a Law Student Need to Know About the Avoiding Powers in a Bankruptcy Case ? 13 results (showing 5 best matches)
- In the absence of bankruptcy, some transfers of a debtor’s property can be invalidated under state laws, such as state fraudulent conveyance laws. The Code incorporates these state laws in section 544(b) so that a transfer of a debtor’s property that can be invalidated under state law in the absence of bankruptcy can be invalidated under section 544(b) in the event of bankruptcy.
- When the bankruptcy trustee avoids an absolute transfer of property, that property then becomes property of the estate. Assume that
- files for bankruptcy on July 13, 2016, that payment cannot be avoided under section 547—transfer occurred more than 90 days before bankruptcy. If, however,
- ’s bankruptcy filing. Again, if the bankruptcy trustee is able to avoid the payment and recover the $12,000
- files for bankruptcy, (4) the gift of Blackacre from
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Unit 9 Question Nine: What Happens During a Business Chapter 11 Case? 50 results (showing 5 best matches)
- In the equipment example, assume further that the court concludes that the value of the equipment is declining by $10,000 a month. Under sections 361 and 363, the bankruptcy court could require the debtor to make monthly payments to
- files for bankruptcy owing
- The phrase “First Day Orders” does not appear in either the Bankruptcy Code or the Bankruptcy Rules. Nonetheless, “First Day Orders” appear in virtually every Chapter 11 case.
- Adequate protection works so long as the bankruptcy judge correctly foresees the future of the encumbered property. What if the value of the creditor’s interest in property drops more significantly than the bankruptcy judge anticipated?
- There is no provision of the Bankruptcy Code that expressly states that a Chapter 11 debtor cannot pay prebankruptcy claims until confirmation of a plan. Nonetheless, lawyers, their clients and bankruptcy judges know that this is how Chapter 11 works. Now you do too.
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Unit 14 Question Fourteen: What Does a Law Student Need to Know About Leases and “Executory Contracts”? 38 results (showing 5 best matches)
- An understanding of the bankruptcy law of leases and executory contracts requires an understanding not only of rejection, assumption and assignment, the three different elections available to the debtor under the Bankruptcy Code, but also an understanding of the election that is not available to the debtor under the Bankruptcy Code. A debtor does not have a legal right under the Bankruptcy Code to modify or change the terms of an unexpired lease or an executory contract.
- You need to think about both the basic bankruptcy concept of “property of the estate” and the basic bankruptcy concept of “claim” when you think about leases and “executory contracts”.
- [The previous statement in the previous paragraph is both correct and misleading. There are only the three possible choices under the Bankruptcy Code. A debtor does not have a right under the Bankruptcy Code to change the terms of an unexpired lease or executory contract. Nonetheless, a debtor is often able to use its bargaining power and other legal rights under the Bankruptcy Code to “persuade” the other party to the lease or contract to “agree” to modifications in the lease or contract. For example,
- To review, look primarily to section 365 to determine the effect of bankruptcy on a debtor’s leases and executory contracts. Under section 365, a bankruptcy trustee can either:
- There is always going to be some gap period between the filing of a bankruptcy petition and action on a contract or lease. Accordingly, it is necessary to consider the rights and responsibilities of the debtor and nondebtor party during the interim between the commencement of the bankruptcy case and the assumption or rejection decision.
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Unit 2. Question Two: Why Do People Do Bankruptcy (Requiring You to Be Able to Do Bankruptcy Law)? 14 results (showing 5 best matches)
- Third, the debtor might file for bankruptcy before its property is seized and sold. Bankruptcy law is the third reason for the decline in lawyers’ use of (and professors’ instruction in) state collection law. As we have seen, bankruptcy law only stops (i.e., “stays”) not yet completed collection efforts. As we will see, bankruptcy law also often undoes (i.e., avoids) completed state collection actions.
- We have already considered two of the three principal advantages of bankruptcy to debtors: (1) the automatic stay which protects the debtor from creditor collection efforts during the bankruptcy case, (2) the discharge which, if obtained, protects the debtor from creditor efforts to collect from them personally after the bankruptcy case. The third principal reason that debtors file for bankruptcy is to reduce the amount that they have to pay to their creditors.
- Less obvious are the possible advantages of bankruptcy to creditors. It should be obvious from the fact that less than 1% of the bankruptcy cases are filed by creditors that most creditors in most situations believe that they do not want to deal with the restrictions and costs of bankruptcy. Possible advantages to creditors of bankruptcy are (1) judicial supervision of the debtor’s use of property of the estate protects creditors from fraud or waste and (2) the aggregate costs to all creditors of a bankruptcy are less than the total costs to individual creditors of individual collection efforts.
- WHY DO PEOPLE DO BANKRUPTCY
- Possible “Legal” Solutions to the Debt Default Problem Outside of Bankruptcy
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Unit 11 Question Eleven: What Does a Law Student Need to Know About Fraudulent Transfers and Obligations ? 18 results (showing 5 best matches)
- In bankruptcy, both
- And, state fraudulent conveyance can become a part of bankruptcy law by reason of section 544(b). Section 544(b) does not specifically provide for the avoidance of fraudulent conveyances. Rather, it empowers the bankruptcy trustee to avoid any prebankruptcy transfer that is “voidable under applicable law by a creditor holding an unsecured claim that is allowable.”
- . Only transfers of the debtor’s property that occurred within two years before the date of the bankruptcy petition or obligations incurred by the debtor within two years before the filing are within the scope of
- . If the transfer occurred or the obligation was incurred more than two years before bankruptcy,
- files a bankruptcy petition.
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Unit 13 Question Thirteen: What Does a Law Student Need to Know About the Other Avoiding Powers? 59 results (showing 5 best matches)
- The word “recoupment” does not appear in the Bankruptcy Code. The word “setoff” does. The Bankruptcy Code, however, does not create any rights of setoff. Instead, the Code, with limited (but important) exceptions recognizes whatever right of setoff a creditor would have outside of bankruptcy.
- Second, the stay of setoff under section 362(a)(7). A creditor who did not do its setoff prior to the debtor’s filing for bankruptcy cannot exercise the right of setoff after the bankruptcy filing without first obtaining relief from the stay from the bankruptcy court.
- Again, there is no bankruptcy law of recoupment. The Bankruptcy Code does not use the word “recoupment,” and the cases consistently hold that the Bankruptcy Code provisions affecting the exercise of a right of setoff do not affect the exercise of a right of recoupment. More specifically,
- Obviously, a postbankruptcy transfer will be effective against the bankruptcy trustee if the transfer was authorized by the Bankruptcy Code or the bankruptcy court. See section 549(a)(2)(B).
- The Bankruptcy Code uses the term “debtor,” not the term “bankrupt.” Nevertheless, in discussing setoffs in which each party is the debtor of the other, it seems less confusing to use the term “bankrupt” to identify the party that filed a voluntary bankruptcy petition (or the party whose creditors filed an involuntary bankruptcy petition).
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Unit 15 Question Fifteen: What Does a Law Student Need to Know About the Bankruptcy Claims Process : A Review and Overview 20 results (showing 5 best matches)
- Every bankruptcy case is about claims. Every Unit of this book is about claims. Every bankruptcy exam question has claims issues. This Unit collects what you need to know about the bankruptcy claims process.
- In all bankruptcy cases, the debtor is required to file a list of its creditors. The bankruptcy court will then send a notice of the bankruptcy to the listed creditors.
- A creditor can participate in bankruptcy distributions (i.e., get paid) only if it has actually filed a proof of claim or is deemed to have filed a proof of claim. Regardless of whether it has filed a proof of claim and participates in bankruptcy payments, a creditor is barred by the automatic stay from trying to get paid by the debtor during
- later files for bankruptcy. At the time of
- In bankruptcy, some claims—secured claims—are treated differently from others because, pursuant to nonbankruptcy law, the holder of the claim has obtained a lien. And, in bankruptcy, some unsecured claims are treated differently from others because the unsecured claims—priority claims—meet the section 507 priorities requirements.
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Summary of Contents 26 results (showing 5 best matches)
Unit 7 Question Seven: What Happens During a Chapter 7 Case? 58 results (showing 5 best matches)
- Only individual debtors have “exempt property” and possible exemptions issues. While exemptions issues are limited to individual debtors, exemptions issues are not limited to individual debtors in Chapter 7 bankruptcy cases or even to individual debtors in bankruptcy cases.
- files a bankruptcy petition in January 2006. In the two years before bankruptcy, she lived in Texas, California and Iowa. Now that we know that
- The Bankruptcy Code does not expressly deal with the consequences of a debtor converting nonexempt property into other forms of nonexempt property. What if just before filing for bankruptcy,
- Generally, an individual debtor is able to retain his or her exempt property. Exempt property is not distributed to creditors in the bankruptcy case and is protected from the claims of
- Note the italicized qualifier “most.” Section 522(c) identifies the prepetition claims that are, in essence, exempt from the exemptions. After bankruptcy, there are basically four groups of prepetition creditors who have recourse to property set aside as exempt in a bankruptcy case:
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Unit 12 Question Twelve: What Does a Law Student Need to Know About Preferences? 41 results (showing 5 best matches)
- Bankruptcy law
- At the time of its bankruptcy petition,
- The purpose of the preference section is two-fold. First, by permitting the trustee to avoid prebankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally.
- files a bankruptcy petition. The property of the estate is sufficient to pay each unsecured creditor 50% of its claim. An unsecured creditor with a $10,000 claim will thus receive $5,000.
- files a bankruptcy petition. The bankruptcy trustee will not be able to void the April 6 pledge under section 547 even though it is a transfer for an antecedent unsecured debt within 90 days of bankruptcy. The transfer is protected by section 547(c)(1).
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- UNDERSTANDING WHAT HAPPENS IN YOUR BANKRUPTCY COURSE BY UNDERSTANDING WHAT HAPPENS IN REALISTIC, CONSUMER BANKRUPTCY CASES
- We have not included a unit on a typical business case because (i) real world business bankruptcy cases are much more about “business” than about bankruptcy; (ii) business cases are typically atypical (e.g., cases involving family-owned businesses are dramatically different from cases involving public corporations; cases involving manufacturing businesses with products liability problems are dramatically different from cases involving high tech businesses with cash-flow problems, and so on); and (iii) this book is principally designed for law students, and the typical law school bankruptcy course focuses mostly on consumer cases under Chapters 7 and 13.
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Unit 17 A Typical Chapter 13 Case 70 results (showing 5 best matches)
- U.S. Bankruptcy CourtBankruptcy Petition #: 06–72C818
- We’ll assume that even with Ahmed’s raise, he and Irshad decide to file bankruptcy. Their lawyer, Larry Friedman, whom we also met in Unit 16, will tell the Kaddours that a Chapter 7 case would be dismissed. If they want bankruptcy protection, their only practical option is filing a Chapter 13 case.
- The Kaddours lacked this ability to repay their debts in the original bankruptcy case (Unit 16) and could therefore liquidate under Chapter 7. With Ahmed’s raise, however, they are able to repay enough of their debts so that allowing them to stay in Chapter 7 would be an abuse; and they would be forced to choose between converting to Chapter 13 and foregoing any bankruptcy protection.
- By filing a Chapter 13 case, the Kaddours don’t avoid having to provide Larry with all the information about their assets, liabilities, and incomes. They also don’t avoid having to get a credit counseling briefing before Larry can file their case. The Bankruptcy Code requires such a briefing, within 180 days before the date of filing, for any “individual” filing any kind of bankruptcy case.
- In every kind of bankruptcy case, including the Kaddours’ Chapter 13 case, the filing of the petition “operates as a stay, applicable to all entities.” This section 362 stay enjoins and prevents all creditors from taking or continuing any action in or outside of court (except the bankruptcy court) against the debtors, their property, or property of the estate to collect the creditors’ claims.
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Table of Contents 40 results (showing 5 best matches)
Unit 8 Question Eight: What Happens During a Chapter 13 Bankruptcy Case? 16 results (showing 5 best matches)
- It’s not the Bankruptcy Code that uses the phrase “cram down.” Neither cram down nor cramdown appears anywhere in the Bankruptcy Code. Rather it is the bankruptcy lawyers, judges, and law professors who have come to use the term cram down to describe court approval of a plan provision that effects changes in the payment of a claim that the claim holder objects to.
- The plurality identified three reasons for adopting the formula rate. First, bankruptcy judges should be uniform in their approach to determining interest rates. The formula approach requires less expensive evidentiary hearings than the other approaches, and is familiar to the financial community. Second, the fact that the Chapter 13 debtor has proposed a feasible plan, as determined by the bankruptcy court, and payments are being made through the
- The bankruptcy court may grant a discharge in a Chapter 13 case even though the debtor has not completed payments called for by the plan. Section 1328(b) empowers the bankruptcy court to grant a “hardship” discharge if:
- The 2005 legislation significantly limits a Chapter 13 debtor’s ability to strip down secured loans. No strip down is allowed on any debt incurred within one year prior to the bankruptcy filing. And, no strip down is allowed on a purchase money loan incurred within 910 days before the bankruptcy filing if it is secured by a motor vehicle acquired by the debtor for her personal use.
- WHAT HAPPENS DURING A CHAPTER 13 BANKRUPTCY CASE?
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Last Comments to Students 3 results
- When did this happen, i.e., after bankruptcy or before bankruptcy and, if before, how many days before?
- It has been a pleasure for us to write this book. We hope that it has been a pleasure for you to read the book and that it will be a pleasure to read the grade on your bankruptcy exam.
- Who is the “debtor,” i.e., who is the person in bankruptcy?
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Index 12 results (showing 5 best matches)
Dedication 1 result
- Publication Date: December 13th, 2016
- ISBN: 9781634596220
- Subject: Bankruptcy/Creditors' Rights
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book focuses on the material covered in a typical law school course on Bankruptcy. It covers both business and consumer bankruptcy. The book explains basic bankruptcy concepts and then uses those concepts to make code provisions understandable.
