Emory Bankruptcy Developments Journal

Volume 28Issue 2
The Ninth Annual Emory Bankruptcy Developments Journal Symposium
Symposium

Introduction

Jeremy Zisholtz | 28 Emory Bankr. Dev. J. i (2012)

The Emory Bankruptcy Developments Journal hosted its Ninth Annual Symposium on March 1, 2012. The Corporate Panel addressed three recent developments in regard to chapter 11 plans. The Stern v. Marshall Panel examined the convoluted 2011 Supreme Court decision in Stern and the bankruptcy court decisions throughout the United States since the Stern decision. The Consumer Panel analyzed a variety of hypothetical situations to highlight recent chapter 13 plan issues.

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Welcome

Dean Robert Schapiro | 28 Emory Bankr. Dev. J. 281 (2012)

To mark the occasion of the Emory Bankruptcy Developments Journal Ninth Annual Symposium, Dean Robert Schapiro gave a rousing welcome to the audience and highlighted the Stern v. Marshall case that is being presented in one the symposium panels.

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The Corporate Bankruptcy Panel: Hot Chapter 11 Issues

Scott Alberino, The Honorable Judith Fitzgerald, Scott Greenberg, Gary Marsh | 28 Emory Bankr. Dev. J. 283 (2012)

The Corporate Panel looked at hot chapter 11 topics such as In re Washington Mutual, Inc. [WaMu] and In re Tribune Co.

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Stern v. Marshall Panel

Bernard Bo Bollinger, Daniel Bussel, The Honorable James E. Massey | 28 Emory Bankr. Dev. J. 309 (2012)

The Stern v. Marshall Panel discussed the issues of the case and its potential impact on practitioners.

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The Consumer Bankruptcy Panel: Hot Consumer Bankruptcy Plan Issues

Brian Cahn, Adam Goodman, Karen Visser, Melissa Youngman | 28 Emory Bankr. Dev. J. 333 (2012)

The Consumer Panel focused on student loan debt, featuring judicial, academic, and practical insights and a call to action to help consumers.

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Note

An International Approach to Breaking the Core of the Bankruptcy Code and FAA Conflict

Polina Kushelev | 28 Emory Bankr. Dev. J. 355 (2012)

This Note will focus on the enforceability of arbitration clauses in bankruptcy proceedings under the FAA, New York Convention, and chapter 11 of the Bankruptcy Code, using international approaches as support. It will begin by identifying the current foundational analyses used in this controversial area and explaining why arbitration agreements should not always be enforced in core bankruptcy proceedings in Part I. Next, the Note will outline in Part II why the current regime is flawed and in need of an overhaul. Lastly, the Note will recommend in Part III a viable solution that is in the best interests of the parties, FAA, and Bankruptcy Code.

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Article

Stern v. Marshall: A Dead-End Marathon?

Kent L. Richland | 28 Emory Bankr. Dev. J. 393 (2012)

This article will focus on the Stern holding and its potentially serious implications both inside and outside of bankruptcy. It will consider perhaps the most troubling question inherent in the Stern holding: what are its implications in light of the established principle that, because of Article III’s structural, separation-ofpowers aspect, its application cannot be waived by the parties? Within the answer to that question may lie the future effectiveness of not just the bankruptcy courts, but of federal magistrates, federal arbitration, and other non-Article III adjudicative bodies.

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Comments

Defining the Close Nexus: An Analysis of a Bankruptcy Court’s Chapter 11 Postconfirmation Jurisdiction

Timothy A. Davis | 28 Emory Bankr. Dev. J. 419 (2012)

The Comment analyzes the various areas of bankruptcy court jurisdiction with a specific emphasis on postconfirmation “related to” jurisdiction in chapter 11 cases. The Comment also provides recommendations for courts and legislators to consider in clarifying the scope of postconfirmation “related to” jurisdiction. These recommendations include the Supreme Court granting a writ of certiorari to provide guidance to the lower courts on postconfirmation jurisdiction, a statutory amendment, and the revision of the current jurisdictional scheme to create Article III bankruptcy judges.

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Strip-Off: What is the Correct Procedure to Avoid a Wholly Unsecured Junior Mortgage?

Anthony McCready | 28 Emory Bankr. Dev. J. 463 (2012)

The Comment argues in favor of the position taken by a majority of bankruptcy courts that strip-off does not require an adversary proceeding. To strip off, a debtor must file a motion separate from the plan confirmation pursuant to Rule 3012. The United States Supreme Court recently ruled on the issue of adversary proceeding requirements in bankruptcy. In United Student Aid Funds, Inc. v. Espinosa, the Court decided two important issues applicable to whether strip-off requires an adversary proceeding: (1) the Supreme Court’s decision in Mullane v. Central Hanover Bank & Trust Co. sets the constitutional requirement for due process in bankruptcy; and (2) res judicata can bar the appeal of a confirmed plan even though an adversary proceeding was not initiated as required by the Bankruptcy Rules. The Supreme Court’s decision in Espinosa reinforces the Comment’s interpretation that a motion is required for a strip-off.

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Bankruptcy-Remote Special Purpose Entities and a Business’s Right to Waive Its Ability to File for Bankruptcy

Forrest Pearce | 28 Emory Bankr. Dev. J. 507 (2012)

The Comment argues that the SPE presents a limited situation in which bankruptcy courts should enforce a waiver of bankruptcy eligibility. Specifically, it argues that a firm’s promise not to file for bankruptcy should be enforceable if that firm is not insolvent. The Comment also argues that the SPEs in In re General Growth present an example of cases where bankruptcy courts should relax the rule that waivers of bankruptcy eligibility are generally non-enforceable.

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Walking the Tight Rope and Not the Plank: A Proposed Standard for Second-Level Appellate Review of Equitable Mootness Determinations

Matthew D. Pechous | 28 Emory Bankr. Dev. J. 547 (2012)

The Comment proposes that, for doctrinal and practical reasons, determinations of equitable mootness should be reviewed for an abuse of discretion. However, numerous scholars have recognized that the deference granted under the abuse of discretion standard is more of a spectrum than a single, easily definable standard. Therefore, the Comment also suggests that courts of appeals should be more willing to overturn determinations of equitable mootness than other issues reviewed for an abuse of discretion.

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Defeating the Preference System: Using the Subsequent New Value Defense and Administrative Expense Claims to “Double Dip”

Nick Sears | 28 Emory Bankr. Dev. J. 593 (2012)

The Comment refers to the use of the § 547(c)(4) subsequent new value defense for the same goods that a creditor claims a § 503(b)(9) administrative expense for as “double dipping,” a term used by some in the bankruptcy community to describe this issue. The Comment also addresses two primary issues: whether courts should allow creditors to double dip and, if not, what legal tools judges and lawyers can use to fight the practice.

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They’re Just Letting Anyone In These Days: The Expansion of § 523(a)(5)’s “Domestic Support Obligation” Exception to Discharge

Becker McKay Wyckoff | 28 Emory Bankr. Dev. J. 637 (2012)

The Comment offers a uniform approach to the interpretation of the domestic support obligation “payee requirement” by analyzing the various interpretive strategies courts have used both pre- and post-2005 and carefully considering the policy and the corresponding congressional intent of the amendments related to domestic support. Ultimately, the Comment suggests a solution that provides courts with a process of deciding domestic support obligation cases more uniformly and comprehensively: the judicially developed exception to the plain meaning rule.

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