Emory Bankruptcy Developments Journal

Volume 29Issue 2
The Tenth Annual Emory Bankruptcy Developments Journal Symposium

Installment Land Contracts in Purchaser Bankruptcy

Seong-hee Lee | 29 Emory Bankr. Dev. J. 425 (2013)

The executory contract analysis under § 365 of the Bankruptcy Code has long challenged judges, practitioners, and scholars. The challenge of understanding the purpose of § 365 and reaching an equitable result thereafter is most profound when confronting installment land contracts. The parties to an installment land contract, typically the purchaser, can become insolvent and enter bankruptcy, and consequently, the rights of the parties may be altered dramatically as a result of applying bankruptcy law.

Read More »

Don't Rely on Plain Meaning, Trust Your Intuition: Trustees Are Not “Individuals” Eligible to Recover Punitive Damages Under § 362(k)

Kelly Gould | 29 Emory Bankr. Dev. J. 465 (2013)

To help debtors obtain a fresh start post-bankruptcy, § 362(a) of the Code provides for an automatic stay, which enjoins creditors from taking any collection action against a debtor immediately upon the debtor’s filing for bankruptcy. Originally, victims of a stay violation relied solely on the bankruptcy court’s contempt power to recover damages. In 1984, Congress added a new subsection to § 362, now codified as § 362(k), to specifically authorize bankruptcy courts to award damages to an “individual injured” by a violation of the stay. Most importantly, § 362(k) permits bankruptcy courts to award punitive damages, which typically are not an available remedy for civil contempt.

Read More »

To Include or to Not Include: Examining When Attorneys’ Fees May Be Awarded Under § 362(k)(1)

Anthony Hall | 29 Emory Bankr. Dev. J. 513 (2013)

Although courts are reluctant to shift attorneys’ fees in legal matters, Congress has made special exceptions to protect individuals in unique positions or to discourage certain undesirable behavior. With § 362(k)(1), Congress made an express exception to allow debtors to recover attorneys’ fees after a creditor willfully violates the automatic stay. For nearly twenty-five years, courts have interpreted § 362(k)(1) to allow debtors to recover attorneys’ fees incurred by seeking damages against the automatic stay violator. However, in Sternberg v. Johnston, the Ninth Circuit created a split in authority when it refused to allow a debtor to recover the full extent of his attorneys’ fees under § 362(k)(1).

Read More »

The Bankruptcy Shadow: Section 525(b) and the Job Applicant’s Sisyphean Struggle for a Fresh Start

Samantha Orovitz | 29 Emory Bankr. Dev. J. 553 (2013)

Congress amended § 525 of the Bankruptcy Code in 1984 to expand employment discrimination regulation to private employers. Section 525 prohibits employment discrimination on the basis of bankruptcy status. Section 525(a) prohibits this practice by government employers, and § 525(b) does so with respect to private employers. But there is a key difference between the two sections: only § 525(a), which governs public employers, explicitly prohibits discriminatory hiring on the basis of bankruptcy status.

Read More »