The following seven BAPCPA-related working papers can be downloaded from the Social Science Research Network:
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University of Arizona Law School’s Jean Braucher, Rash and Ride-Through Redux: The Terms for Holding on to Cars, Homes and Other Collateral under the 2005 Bankruptcy Act
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University of Arizona Law School’s Jean Braucher, Theories of Over-Indebtedness: Interaction of Structure and Culture
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New England School of Law’s Russell Engler, And Justice for All-Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks
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FDIC’s Michael Krimminger, Adjusting the Rules: What Bankruptcy Reform Will Mean for Financial Market Contracts
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Univ. of Illinois Law School’s Charles Jordan Tabb, The Brave New World of Bankruptcy Preferences
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Univ. of Illinois Law School’s Charles Jordan Tabb, Consumer Bankruptcy After the Fall: United States Law Under S.256
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Georgia State Law School’s Jack F. Williams and St. John’s Univ. Law School’s Jacob L. Todres, Tax Consequences of Postpetition Income as Property of the Estate in an Individual Debtor Chapter 11 Case and Tax Disclosure in Chapter 11
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Abstracts for each of these working papers follow:

Continue Reading Seven BAPCPA-Related Working Papers Available for Downloading from SSRN

UAL’s proposed plan of reorganization provides for a modicum of distributions on the plan effective date of UAL’s plan to unionized employees, as required by the terms of revised collective bargaining agreements. UAL, relying upon Bankruptcy Code section 505(a) (which allows the bankruptcy court to “determine the amount or legality of any tax”), sought a declaratory ruling from the bankruptcy court that distributions to employees under the plan cannot be taxed by the IRS as “wages.” This issue is quite significant to UAL because a favorable ruling would save UAL tens of millions of dollars in federal withholding taxes and the like that would have to be paid were the distributions to be characterized as “wages” for federal tax purposes.
The UAL bankruptcy court, however, refused to even reach the merits because it concluded (opinion available here) that it lacked jurisdiction to decide the tax effects of a Chapter 11 plan before it has been confirmed.
In so doing, the Court noted the paucity of cases and consensus on “when a tax issue must arise in order to be subject to adjudication” as compared with “whose tax issues may be adjudicated under looked at the language of Code § 505(a).” The Court stated:

Continue Reading UAL Bankruptcy Court Looks to Context of Specific Code Chapter in Refusing to Exercise Jurisdiction Over Question of Whether Plan Distributions on Union Employee Claims are Taxable as “Wages”

Rutgers Law School’s Professor Keith Sharfman, an outspoken critic of “creditor derivative standing” in bankruptcy (see Sharfman, Derivative Suits in Bankruptcy, 10 Stan. J. L. Bus. & Fin. 1 (2004)), took note in a recent guest blog post on Ideoblog of a case from the Fourth Circuit, Scott v. National Century Financial Enterprises, Inc. (In re Baltimore Emergency Services II, Corp.), 2005 WL 3470039 (4th Cir., 12/20/05), which “denied creditors standing in the particular case and cast doubt on whether creditor standing could ever be available.” Given the proliferation of litigation being commenced in bankruptcy courts “for the benefit of” and “on behalf of” aggrieved creditors left holding the bag, and the diverse decisions of courts across the land, the question of a plaintiff’s standing to commence adversary litigation in the bankruptcy context has gained increased importance in the past several years.
The Baltimore Emergency Services II case is a worthwhile read. In it, the Fourth Circuit actually ruled very narrowly, holding that the plaintiffs lacked standing to seek a preliminary injunction against the chapter 11 debtor’s former CEO who “oversaw the debtors’ business operations, guided them into bankruptcy, and then abruptly jumped ship [by seeking] to undermine the debtors by securing for himself their workforce and their most valuable contracts.” If any case cried out for a court’s acceptance of creditor standing (with or without the debtor’s consent), it is this one (which had the support of the lead secured creditor and the creditors’ committee, whose aggregate claims against the debtor exceeded $430 million).
The opinion in Baltimore Emergency Services II begins by first examining the doctrine of “derivative standing,” which itself — according to the Court — encompasses two situations: first, when the trustee or debtor-in-possession refuses to bring suit on its own; second, when the trustee or debtor-in-possession grants consent. The Court stated:

Continue Reading Creditor Derivative Standing: Some Recent Cases Explore the Contours of the Doctrine and Split Among the Circuits

University of Illinois Law School Professor Charles Jordan Tabb has made available at the Social Science Research Network a working paper entitled The Top Twenty Issues in the History of Consumer Bankruptcy. The article’s abstract on SSRN provides:

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 dramatically altered the system of consumer bankruptcy in the United States. In the wake of that landmark legislation, this article seeks to provide an historical context and perspective. The article identifies and highlights the “top twenty” consumer bankruptcy issues in the development of the Anglo-American bankruptcy tradition. These issues are grouped into the following broad categories: (1) who is eligible for bankruptcy relief; (2) what assets does the debtor get to keep; (3) what future income is shielded; and (4) who decides and how. Finally, the paper looks briefly at the moral aspect of consumer bankruptcy, viewed through an historical lens.

This is a great article for those interested in the development of consumer bankruptcy law in America. The article also includes a four page bibliography with citations to many classics in legal scholarship on the history of bankruptcy law.
© Steve Jakubowski 2006