Emory Bankruptcy Developments Journal

Volume 29Issue 1

Section 363 Sales: Mooting Due Process?

Alla Raykin | 29 Emory Bankr. Dev. J. 91 (2012)

The use of § 363 sales has become immensely popular. The mechanism is no longer used just to get cash funding through the reorganization, but to dispose of the bankruptcy petition altogether. The primary benefit of § 363 sales is their speed. The Lehman Brothers, Chrysler, and General Motors bankruptcies demonstrated exigent situations in which courts approved quick § 363 sales to avoid the risk of allowing such large companies to fail.

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Responding to Stern v. Marshall

Stephanie J. Bentley | 29 Emory Bankr. Dev. J. 145 (2012)

Stern v. Marshall is the most recent decision in a series of cases decided by the Supreme Court that involves the doctrine of public rights. The Court found that although 28 U.S.C. § 157(b)(2)(C) permits a bankruptcy court to enter final judgments on all counterclaims, Article III of the Constitution does not. The Court reiterated that Article III, Section 1 of the Constitution mandates the judicial power of the United States “be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The judges for these courts must have constitutionally protected salaries and tenure. Bankruptcy judges do not enjoy these protections, and so, may not hear matters that must come before Article III courts.

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Educational Expense Deductions from the Chapter 13 Plan: Creating a “Reasonably Necessary” Standard

Dominick Capotosto | 29 Emory Bankr. Dev. J. 195 (2012)

The current state of bankruptcy law concerning chapter 13 educational expense deductions from a debtor’s disposable income is cloudy at best. The vague guidelines provided by the drafters of the Bankruptcy Code have created a system where this issue is analyzed on a case-by-case basis. Bankruptcy judges possess great discretion in deciding whether a particular tuition deduction is “reasonably necessary,” as required by 11 U.S.C. § 1325(b)(2), creating inconsistent decisions across jurisdictions. BAPCPA created even more chaos in this context, as it split debtors into two groups depending on their income and forced judges to use the new “means test” to evaluate certain debtors’ tuition claims.

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Termination of the Stay for Successive Filers: Interpreting § 362(c)(3)

Kimberly Lehnert | 29 Emory Bankr. Dev. J. 243 (2012)

In bankruptcy, the automatic stay thwarts the attempts of eager creditors to collect their debts, offering debtors in bankruptcy much-needed breathing space and providing for the most equitable distribution of estate property. It is no surprise that debtors remain eager to take advantage of the stay¿s vast protection, and for some time, repeated filings merely to access the stay were a major problem in this country. Congress responded by enacting § 362(c)(3)(A) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Section 362(c)(3)(A) mandates that the automatic stay terminate, “with respect to the debtor,” thirty days after the petition is filed if the debtor has had a prior case dismissed within one year of filing. A split of authority currently exists regarding the proper interpretation of this provision of the Bankruptcy Code.

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Bankruptcy Stigma and Vulnerability: Questioning Autonomy and Structuring Resilience

Yvana L.B.H. Mols | 29 Emory Bankr. Dev. J. 289 (2012)

Stigma is an enduring byproduct of bankruptcy, both as felt by the debtor and as perceived by society. The stigma exists even though some have declared its demise, and is certainly present after the BAPCPA amendments aimed at action intended to revive the stigmatic effect of filing for bankruptcy. Bankruptcy stigma may be a useful tool when it prompts individuals to make wiser fiscal decisions, but for debtors who face uncontrollable financial circumstances, this same stigma is burdensome and does not provide a social benefit.

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