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Insolvency Service “reframes” view of creditor – IPs can apply their discretion (UK)

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What is Tenancy by the Entireties Protection in Pennsylvania Bankruptcy?

There are various ways in which a person or multiple people may own a home. Perhaps one of the most common ways is tenancy by the entirety. In short, this […]

Business Bankruptcy Filings Increase by 30%

Inc. is reporting that business bankruptcy filings increased by 30%. The article can be found at https://www.inc.com/melissa-angell/small-business-bankruptcies-surged-3… Michael Hunter of

Bankruptcy Eligiblity is a Moving Target

Don’t sit on your Bankruptcy Eligiblity: It’s a moving target In January, Larry came to talk to me about Chapter 7 bankruptcy eligiblity. He had a car repossession and about $25,000 in charged off credit cards. He was planning to get married and hoped to buy a house in a few years. His fiancé warned […] The post Bankruptcy Eligiblity is a Moving Target appeared first on Robert Weed Virginia Bankruptcy Attorney.

Weekly News – September 5

A deep dive into Spirit Airlines, new guidance issued prohibiting judge shopping, Echostar mega deal surprise, Texas Two Step doesn’t fly in Delaware, and much, much more… Creditor Corner Your…

Leveling the Playing Field

HOW TO LEVEL THE PLAYING FIELD IN FAVOR OF CREDITOR INTERESTS: A CRITICISM OF IN RE ELETSON AND ITS FAILURE TO APPOINT A CHAPTER 11 TRUSTEE By Marc Kirschner &…

How Do Wildcard Exemptions Work in Pennsylvania Bankruptcy?

When you file for bankruptcy, there are many areas of money you have that might be taken and put toward your outstanding debts to clear away as much as possible. […]

Law Review: Hampson, Christopher D., "Bespoke, Tailored, and Off-the-Rack Bankruptcy: A Response to Professor Coordes's 'Bespoke Bankruptcy'"

Law Review: Hampson, Christopher D., "Bespoke, Tailored, and Off-the-Rack Bankruptcy: A Response to Professor Coordes's 'Bespoke Bankruptcy'" Ed Boltz Fri, 09/05/2025 - 16:34 Available at: https://scholarship.law.ufl.edu/facultypub/1234 Abstract: Toward the end of every semester that I teach bankruptcy, I let my students vote on which “non-traditional” insolvency regimes they would like to study, including municipal bankruptcy, sovereign bankruptcy, and financial institutions. What I am really trying to do is convey to the students that the default procedures and substantive rules in Chapters 7 and 11 of the U.S. Bankruptcy Code do not apply to all types of enterprises. Summary: In *Bespoke, Tailored, and Off-the-Rack Bankruptcy: A Response to Professor Coordes’s “Bespoke Bankruptcy”*, Professor Christopher Hampson expands Coordes’s taxonomy of “bankruptcy misfits” into three categories: Off-the-rack bankruptcy – the default Chapters 7 and 11 structure, with liquidation as the constant background threat. Tailored bankruptcy – Congress begins with the Code and tweaks it for a specific group, e.g., Chapter 12 or Subchapter V. Bespoke bankruptcy – a separate statutory regime built from scratch for entities “too important to fail” or whose governance or public role makes the standard model unworkable, e.g., Chapter 9 municipalities, PROMESA territorial cases, or Dodd-Frank bank resolutions. Hampson emphasizes that “misfit” status hinges on substantive differences, not whether the law is located in Title 11. Governance constraints (elected officials in municipalities, regulatory oversight in bank failures) often drive bespoke designs. He notes Coordes’s list of possible candidates—utilities, churches, nonprofits, public universities, mass tort defendants, and tribal corporations—and urges evaluating whether each needs tailoring or a fully bespoke regime. Tailoring is appropriate when standard Code processes suffice with moderate adjustments; bespoke is reserved for when off-the-rack solutions cannot work at all. Commentary: For consumer bankruptcy practitioners, this framework resonates with the Fourth Circuit’s Trantham v. Tate approach, which underscored the flexibility in Chapter 13 to craft nonstandard plan provisions so long as they comply with § 1322(b) and confirmation standards. Hampson’s “tailored” category suggests Congress could—and debtor’s counsel already can—create procedural or substantive adjustments within the Code to better fit certain consumer debtor populations. In other words, *Trantham* opens a door for “micro-tailoring” inside individual cases, while Hampson describes “macro-tailoring” by statute. Potential “bespoke” or “tailored” consumer bankruptcy categories could include: Attorney Fee Only Bankruptcy – Somewhere between a Chapter 7 and a Chapter 13 case that allows for immediate filing of the bankruptcy without payment up-front of attorneys fees and then discharge once those have been paid. This has been haphazardly accomplished with bifurcated fee agreements, low-pay Chapter 13s and conversions. Student loan–heavy debtors – Tailored provisions to permit discharge or structured repayment without undue hardship litigation, potentially modeled on Subchapter V’s streamlined timelines and mediation focus. This includes the b espoke Buchanan provisions, which allow or continue enrollment in IDR plans. Medical debt bankruptcies – Tailored rules prioritizing preservation of access to care, limiting the impact on future insurance coverage, or limiting impact on credit scores due to the innocent nature of the debt. Gig economy/variable income debtors – Tailored income determination and plan modification rules that account for income volatility and avoid serial defaults. Elderly debtors – Bespoke or heavily tailored regimes that protect retirement income and simplify plan administration when debt structure is modest but repayment ability is constrained by age and health. Natural disaster victims – A bespoke chapter (or subchapter) providing extended plan moratoria, expedited lien stripping for uninhabitable homes, and coordinated FEMA/insurance claim handling. Home preservation–focused debtors – Tailored provisions expanding mortgage cure rights beyond § 1322(b)(5), deferred payment of non-exempt equity to unsecured creditors, requiring servicer transparency akin to online access following In re Klemkowski. The mortgage modification programs adopted by many bankruptcy courts across the country, including all three districts in North Carolina are tailored for this. Mass consumer fraud victims – Group Chapter 13 plans combining streamlined proof-of-claim defenses with coordinated recovery from common wrongdoers. Consumer attorneys could, post- Trantham, experiment with nonstandard plan language to simulate these regimes in individual cases—e.g., a “Student Loan Chapter 13” provision requiring mediation and fixed interest amortization; or a “Disaster Recovery Chapter 13” with seasonal payment step-ups. The test will be whether courts view these as permissible tailoring or an impermissible rewrite of the Code. If Congress takes up bespoke consumer bankruptcy, these categories could be codified much like Chapter 12 was for farmers and Sub V for small businesses—starting as an emergency measure and, if successful, becoming a permanent feature of the Code. With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document bespoke_tailored_and_off-the-rack_bankruptcy_a_response_to_pro.pdf (245.52 KB) Category Law Reviews & Studies

Law Review (Policy): Lederer, Anneliese and Kushner, Andrew- The Shady Side of Solar System Financing

Law Review (Policy): Lederer, Anneliese and Kushner, Andrew- The Shady Side of Solar System Financing Ed Boltz Thu, 09/04/2025 - 15:56 Available at: https://www.responsiblelending.org/research-publication/shady-side-sola… Executive Summary: Rising energy costs and the increasing environmental threats posed by climate change are causing a growing number of American homeowners to turn to the financial services sector to pay for energy-efficient renovations and upgrades to their homes. This segment of a broader financial market, known as consumer green lending, provides financing for many consumer products designed to have a positive environmental impact and provide potential energy cost savings. As of 2023, 4.4% of all residential homes in the United States had solar power systems installed, with Hawaii, California, and Arizona having the greatest percentages of homes powered by residential solar systems. The solar finance industry is significantly smaller than the mortgage market; however, its reliance on securitization for capital and an estimated $3.89 billion in asset-backed securities represents a growing economic footprint. The clean energy transition in the United States will not succeed and will not be equitable without broad adoption by low-to-moderate income (LMI) consumers. This will require a clear understanding of the consumer benefits of clean energy, as well as effective state and federal consumer protection regulations. Key Findings: Elements of solar financing products and sales processes are identical to those used by predatory subprime lenders in 2007 to target low- and moderate-income and minority borrowers. GoodLeap, Sunlight Financial, Mosaic, Sunrun, and Sunnova together account for 80% of the residential solar loan market, according to the most recently available public estimate. Solar financing agreements often leave homeowners in a worse economic situation than before the door-to-door salesperson visited them. This solar debt elevates the risk that the consumer will lose their home to bankruptcy or foreclosure. The price of the solar system typically is substantially inflated if a consumer finances a system. This allows door-to-door sellers to falsely represent that borrowers are getting financing with a low nominal payment rate when most of the financing cost is hidden in the inflated price of the solar panel system. This markup amount is not revealed to the homeowner, and installers are often forbidden from disclosing the markup. Commentary: For consumer bankruptcy practitioners, the treatment of solar panels and their financing remains a tangle of unresolved issues. In some cases, panels are clearly fixtures subject to mortgage liens; in others, they remain personal property under a UCC-1 filing. Lease and PPA arrangements add another layer, often looking less like ownership and more like a burdensome executory contract. As the CRL report shows, the sales and financing practices themselves can be fertile ground for Truth in Lending, UDTPA, or Holder Rule claims—if the forced arbitration clauses don’t shut the courthouse door. The confusion shows up in bankruptcy schedules and plan treatment. Is the panel lender a mortgage creditor whose collateral is part of the home? Or a creditor secured by personal property with an inflated claim that could be bifurcated or crammed down? Should the system be assumed, rejected, or stripped? And when the financing includes hidden “dealer fees” or an unperfected lien, can we challenge the claim entirely? Courts vary widely in approach, and the law has not settled—meaning that debtors with identical panels may get wildly different outcomes depending on jurisdiction, trustee, and even how the panels were bolted down. Given the aggressive and sometimes predatory nature of solar financing, consumer bankruptcy attorneys should: Scrutinize loan documents for arbitration clauses, hidden fees, and inflated prices used to mask interest rates. Investigate lien perfection—many UCC filings describe the panels but don’t comply with fixture filing requirements. Consider whether claims are subject to setoff or recoupment based on state UDAP laws or the FTC Holder Rule. Prepare to educate the court on why a purported “fixture” might still be personal property—and why that matters for valuation and claim treatment. Subject solar panel finance creditors to discovery to obtain accurate details about both their lending practices and the resale value for used solar panels. In short, solar panel financing in consumer bankruptcy is like the early days of mortgage securitization litigation—confusing, inconsistent, and ripe for both creditor overreach and debtor defense. Until appellate guidance or legislative reform arrives, practitioners will need to navigate a patchwork of interpretations and be ready to litigate classification, lien validity, and consumer protection violations alongside the usual plan feasibility and disposable income issues. Finally, CRL and the authors of this report would perform a great public service by extending their investigation into how solar panel debt is treated in consumer bankruptcy cases nationwide. Review of the wealth of data available in bankruptcy cases through PACER could shed light on the inconsistent treatment of these claims, expose whether predatory financing survives discharge, and inform both policymakers and courts on how best to protect debtors caught between green energy aspirations and high-pressure, high-cost financing schemes. NACA Webinar: What to Do with Solar Panels in Bankruptcy. With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document solar_panels_in_bankruptcy_flowchart.pdf (30.07 KB) Document crl-shady-side-solar-financing-jul2024.pdf (945.47 KB) Category Law Reviews & Studies

A Refresher On Relief From Stay Rules For Pursuing A Pre-Petition Lawsuit (In re Dandurand—Part 2)

By: Donald L Swanson It’s helpful, every now and then, to receive a refresher on basic bankruptcy laws. We have such a refresher—on relief from stay rules for pursuing a pre-petition lawsuit—in this opinion: In re Dandurand, Case No. 24-40401, South Dakota Bankruptcy Court (decided May 23, 2025; Doc. 192). This article is the second in... Continue Reading →

Bankr. E.D.N.C.- JSmith v. IRS- Bankruptcy Court Determination of Eligibility for ERC

Bankr. E.D.N.C.- JSmith v. IRS- Bankruptcy Court Determination of Eligibility for ERC Ed Boltz Wed, 09/03/2025 - 16:40 Summary: In JSmith Civil, LLC v. United States (Bankr. E.D.N.C. Aug. 7, 2025), Judge Callaway granted summary judgment for the IRS in an adversary proceeding seeking over $1 million in Employee Retention Credit (ERC) tax refunds. Under the CARES Act, a business qualifies for the ERC only if its operations were “fully or partially suspended” due to a compulsory governmental order tied to COVID-19. JSmith argued that North Carolina’s Executive Orders, OSHA/CDC guidance, and other pandemic disruptions forced it to suspend one-third of its construction operations in Q2 2020 and Q2 2021. The court held that Executive Order 121 explicitly exempted all “construction” from closure, that OSHA/CDC documents were nonbinding guidance (not “orders”), and that general pandemic impacts such as quarantines and supply delays did not meet the statutory standard. Because JSmith could not identify a qualifying governmental order that required it to suspend operations, the court found no material factual dispute and ruled for the United States. Commentary: This decision is not just a COVID-era tax case; it is a procedural roadmap for how bankruptcy courts can handle fact-intensive disputes about government benefits or entitlements. The opinion is notable for three reasons. First, it applies the post- Loper Bright directive that courts must independently construe statutory terms, treating agency guidance as persuasive but not controlling. Second, it draws a sharp line between binding “orders” and nonbinding “recommendations,” a distinction that will matter in future disputes over statutory triggers for financial relief. Third, the court’s structured approach—starting with statutory eligibility, then parsing the factual record for qualifying events—offers a clear procedural template for similar determinations. That structure could be readily adapted in consumer bankruptcy matters far beyond the ERC. For example, in Chapter 13 cases where debtors seek to compel turnover or crediting of federal or state benefits—think student loan payment credits toward Public Service Loan Forgiveness (PSLF), income-driven repayment forgiveness, or tax-based credits like the Child Tax Credit—the same two-step process could apply: Identify the exact statutory eligibility criteria (including whether they are “presumption-in” or “presumption-out” like the ERC), and Determine whether the debtor can prove those criteria with admissible evidence, not just assumptions or guidance. For PSLF in particular, a debtor might allege that payments made through a confirmed Chapter 13 plan must be counted toward the 120-payment requirement. The PSLF statute and regulations define what counts as a “qualifying payment” and under what “qualifying repayment plan.” Just as in JSmith, the court could resolve the issue by (a) interpreting the statutory and regulatory definitions without deference to agency gloss that contradicts the text, and (b) making factual findings on whether the debtor’s Chapter 13 payments satisfy those definitions—perhaps through stipulated facts or a short evidentiary hearing. In short, JSmith reinforces that these determinations are ripe for resolution through targeted summary judgment or similar procedural devices. When applied to consumer cases, that efficiency can cut through bureaucratic intransigence, clarify statutory entitlements, and, in PSLF scenarios, potentially unlock years of loan forgiveness credit for debtors before their bankruptcy cases close. With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document jsmith_v._irs.pdf (249.03 KB) Category Eastern District

Law Review (Note): Daniels, Haley- Insurers Have Standing to Object to Reorganization Plans

Law Review (Note): Daniels, Haley- Insurers Have Standing to Object to Reorganization Plans Ed Boltz Tue, 09/02/2025 - 17:03 Available at: https://scholarship.law.stjohns.edu/bankruptcy_research_library/372/ Abstract: Section 1109 of title 11 of the United States Code (the "Bankruptcy Code") allows any "party in interest" to raise, appear, and be heard on any issue in a chapter 11 bankruptcy case. The term party in interest is not otherwise defined in the Bankruptcy Code. The United States Supreme Court has interpreted the phrase to describe a party that has a sufficient stake in the outcome of the bankruptcy reorganization. Importantly, Section 1128(b) of the Bankruptcy Code explicitly provides that a party in interest "may object to confirmation of a plan" in a chapter 11 case. The United States Supreme Court has held that an insurer with a significant financial stake is a party in interest with the right to object to a proposed chapter 11 reorganization plan. The significance of the insurers’ financial stake and thus bankruptcy standing to object to the plan are usually dependent on if the reorganization plan is defined as "insurance neutral." A plan is insurance neutral if it does not increase the reorganizing debtor’s insurance provider’s financial obligations or risks. If a reorganization plan is insurance neutral, an insurer will not have bankruptcy standing; if it is not insurance neutral, the insurer will have bankruptcy standing. This article analyzes why insurers, in chapter 11 bankruptcy cases, have standing under the Bankruptcy Code as parties in interest, allowing for their objections to the confirmation of a chapter 11 debtor’s plan. Part I will describe the traditional understanding of a legal party in interest. Part II will discuss the decision In re Thorpe Insulation Co., highlighting the facts, reasoning and holding of what becomes almost a precursor to the holding in Truck Ins. Exch., combining the previous definitions of a party in interest as well as an introduction to insurance neutral plans with asbestos liability claims specifically. Part III then explains Section 524(g) trusts created in response to asbestos liability claims, and finds, using case law, that in these specific cases, it is rare that insurers will be found lack standing. Next, in Part IV, the article will move to a detailed discussion of the analysis of Truck Ins. Exch. alone, providing an overview of the facts of the case, the influences for the Court’s analysis in defining Section 1109(b), and the logic behind the conclusion that the insurers had standing. Finally, the article will conclude in Section V with a summary of the modern case law analyzed in the article, and a concise rule of law as it relates to the specific issues considered in the other sections. Commentary: The lesson from Truck Ins. Exch. is that “insurance neutrality” is the dividing line. In the consumer Chapter 13 context, most insurance issues—like routine continuation of coverage—are neutral and give the insurer no real stake in the case. But when the bankruptcy plan or orders dictate how claim proceeds are used, release the debtor’s liability in ways that impair the insurer’s defenses, or alter the timing or manner of payments, insurers could be treated as parties in interest with standing to object. That said, in consumer cases, courts tend to be cautious about opening the door to every tangentially interested insurer, so a clear showing of direct, non-incidental financial impact would be needed to avoid having such objections dismissed as beyond the scope of § 1324. Chapter 13 does not have § 1109(b)’s broad party-in-interest language (it instead using a mishmash of "creditors" and and without a listing of potential types of "parties in interest" under § 1324 and § 1302/§ 1307 for who may object), but courts often borrow standing principles across chapters when interpreting “party in interest” in § 1324(a). The Truck Ins. Exch. rationale could allow various insurers—life, health, auto, homeowners—to participate in a Chapter 13 if the plan, motions, or adversary proceedings materially alter their obligations. Examples could include: Car insurers if the plan proposes to treat a pending total-loss claim in a way that affects subrogation rights or the insurer’s payout obligations. Homeowners’ insurers if a motion to approve repairs or settle claims from a property loss affects lien priorities or distribution of insurance proceeds. Health insurers if the plan addresses pending personal injury claims in which the insurer has a contractual reimbursement/subrogation right. Life insurers in rare cases where a policy’s cash surrender value is pledged or surrendered as part of the plan, directly impacting policy obligations. With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document insurers_have_standing_to_object_to_reorganization_plans.pdf (287.9 KB) Category Law Reviews & Studies

Merchant Cash Advance Loans As “Unlawful Debt” For RICO Liability? (Golden Foothill v. Spin Capital)

By: Donald L Swanson RICO “It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal . . . ” Merchant Cash Advance Loans Merchant cash advance loans are described... Continue Reading →

August 2025 Ponzi Scheme Roundup

By Kathy Bazoian Phelps Below is a summary of Ponzi scheme activity reported for August 2025. There were at least 8 new Ponzi schemes revealed this month, 6 guilty pleas, and 113 years of prison sentences. The average age of the fraudsters was about

Law Review (Note): Galletti, Michael- The Valuation of Crypto Currency Mining Property Under 11 U.S.C. § 506(a)(1)

Law Review (Note): Galletti, Michael- The Valuation of Crypto Currency Mining Property Under 11 U.S.C. § 506(a)(1) Ed Boltz Fri, 08/29/2025 - 16:03 Available at: https://scholarship.law.stjohns.edu/bankruptcy_research_library/374/ Abstract: Section 506(a)(1) of title 11 of the United States Code (the "Bankruptcy Code") provides that a secured creditor's claim is "a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim." The valuation of collateral is determined "in light of the purpose of the valuation and of the proposed disposition or use of such property." However, the Bankruptcy Code is silent on which valuation method courts should employ. The United States Court of Appeals for the Third Circuit noted in In re Heritage Highgate, Inc. that "Congress envisioned a flexible approach to valuation whereby bankruptcy courts would choose the standard that best fits the circumstances of a particular case." The Supreme Court elaborated in Associates Commercial Corp. v. Rash that the lower courts must evaluate the "actual" use of the property by the debtor in its valuation analysis. This article analyzes the valuation of crypto currency mining assets under section 506(a)(1) in bankruptcy cases. The nature of crypto currency mining provides unique challenges in the valuation step. The mining process requires hundreds of sophisticated “miners,” potentially costing over $10,000 each, and requiring significant energy resources that are usually provided by individualized agreements with public and private utilities. Part I of this article discusses the valuation of special use property. Part II discusses potential valuation methods available to the court. Commentary: In what appears to be the first and only decision valuing cryptocurrency mining facilities under §506(a)(1), Bay Point Capital Partners v. Thomas Switch Holding—affirmed all the way to the Eleventh Circuit—the court classified the property as “special use” because of its substantial (15 MW) dedicated electrical infrastructure, lack of comparable properties, and limited alternative uses. That designation drove the choice of the cost approach over income or sales-comparison methods, with the court relying heavily on the testimony of an appraiser who actually defined “special use.” For practitioners, the lesson is clear: in cases involving unique, infrastructure-intensive collateral—whether crypto mines, data centers, or otherwise—the fight will be over the expert who gets to set the definitional terms, and once “special use” status is secured, the cost approach will often follow, producing a higher valuation for secured creditors and less for unsecureds. Following a still largely untested idea from Billy Brewer, while crypto mining itself isn’t “producing” electricity, these facilities often operate under custom, high-capacity utility service agreements—sometimes with embedded rights, rate discounts, or infrastructure upgrades that are essentially inseparable from the property. If those agreements are characterized as energy transmission/distribution assets , that could bring the property within the scope of § 363(h)(4). Then even though § 363(h) allows a trustee to sell both the estate’s and a co-owner’s interest in property, if certain conditions are met, subsection (h)(4) prohibits the sale of jointly owned property if unless it “ is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.” With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document the_valuation_of_crypto_currency_mining_property_under_11_u.s.c._506a1.pdf (273.68 KB) Category Law Reviews & Studies

MVLs and Issuing Notices of Intended Dividends (UK)

HMRC has issued new guidance explaining its expectations for the proportionate and appropriate use of Notices of Intended Dividends (NOIDs) in an MVL in light of what it says are challenges created by practitioners issuing a NOID at the start of an MVL where doing so might be inappropriate. Much of the guidance echoes HMRC’s...... Continue Reading

Are You Filing a Personal Bankruptcy Because of Business Law Problems.

Are You Filing a Personal Bankruptcy Because of Business Law Problems. A couple times a month, I tell people I’m NOT the right lawyer for their bankruptcy case. Often that’s people whose personal bankruptcy is caused by business law problems. The best lawyers for that kind of problem have a background in business litigation as […] The post Are You Filing a Personal Bankruptcy Because of Business Law Problems. appeared first on Robert Weed Virginia Bankruptcy Attorney.

Second Circuit Clarifies Direct vs. Derivative Claims in Bankruptcy Dispute (US)

On March 4, 2025, the U.S. Court of Appeals for the Second Circuit issued a precedential decision in Little Hearts Marks Family II L.P. v. Carter (In re 305 East 61st Street Group LLC), 130 F.4th 272 (2d Cir. 2025), delineating the boundary between claims a member of a limited liability company may assert in...... Continue Reading

Law Review (Note): Caraballo, Samantha- Rejection of an Executory Contract Does Not Invalidate Rights Exercised or Performance Rendered Prior to Rejection

Law Review (Note): Caraballo, Samantha- Rejection of an Executory Contract Does Not Invalidate Rights Exercised or Performance Rendered Prior to Rejection Ed Boltz Thu, 08/28/2025 - 16:59 Available at: https://scholarship.law.stjohns.edu/bankruptcy_research_library/370/ Abstract: Under section 365 of Title 11 of the United States Code (the "Bankruptcy Code"), a trustee or a debtor in possession may "reject" an executory contract. Rejection results in a breach of contract. Courts consider non-bankruptcy contract law to determine the impact of the breach on the executory contract. In general, rejection does not undo a party’s past performance or exercise of rights under the contract. Instead, it relieves a debtor from its future obligation to perform. Part I of this Article explains the different approaches to defining "executory contract." Part II of this Article elaborates on a trustee and debtor in possession’s power to reject an executory contract in a bankruptcy case. Part III of this Article discusses the consequence of rejection. Part IV of this Article addresses rejection’s impact on past performance and exercise of rights under the contract Commentary: This note makes clear that under Mission Prod. Holdings v. Tempnology and its progeny, rejection under § 365 is a breach, not a rescission, and does not unwind rights already granted or exercised prior to rejection. That distinction is critical when considering whether contractual provisions—particularly those mandating arbitration—survive rejection. Considering, for example, whether an arbitration clause is an “executory contract” depends first on whether it is part of a broader agreement with continuing obligations on both sides at the petition date. Under the Countryman test (favored by the Fourth Circuit), an arbitration agreement standing alone may be executory if, at filing, each party still had material unperformed obligations—such as the debtor’s obligation to arbitrate disputes and the counterparty’s obligation to participate in and be bound by arbitration. Under the functional approach, an arbitration clause could be treated as executory even if the creditor’s only duty is to arbitrate, if rejecting it would confer a tangible benefit on the estate. If the arbitration provision is embedded in a broader executory contract (e.g., a consumer loan agreement or service contract), and that contract is rejected (or deemed rejected if not timely assumed), rejection constitutes a breach of the arbitration clause as well. Under Mission Products, however, breach does not necessarily erase rights that survive outside bankruptcy law. This raises the thorny question: is the right to compel arbitration a “vested” right that survives breach, or merely a future performance obligation? Some courts have held that arbitration clauses are procedural mechanisms for resolving disputes—not substantive rights that “vest” pre-breach—and thus can be rendered unenforceable if the executory contract containing them is rejected and not assumed. Others treat arbitration as a stand-alone enforceable right, analogizing it to a forum-selection clause, which generally survives breach. In consumer bankruptcy, this analysis has practical importance: if arbitration is rejected, debtors may keep disputes in bankruptcy court without having to meet the McMahon/ Epic Systems pro-arbitration federal policy head-on. With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document rejection_of_an_executory_contract_does_not_invalidate_rights_exercised_or_performance_rendered_prior_to_rejection.pdf (286.56 KB) Category Law Reviews & Studies

Student Loan Crisis & Bankruptcy: Why Does Congress Allow This To Continue? (In re Duncanson)

By: Donald L Swanson We have a student loan crisis in these United States.  That crisis dates back to 2005, when Congress enacted one of the harshest-imaginable bankruptcy laws for student loans.[Fn. 1]  That 2005 law, in bi-partisan fashion: Illustrating the harshness of the current law on discharging student loans in bankruptcy is this recent opinion... Continue Reading →

Bankr. W.D.N.C.- In re Sabrina Berry- First Amendment protects against Automatic Stay Violation

Bankr. W.D.N.C.- In re Sabrina Berry- First Amendment protects against Automatic Stay Violation Ed Boltz Wed, 08/27/2025 - 15:30 Summary: In this Chapter 7 case, the erstwhile interim 6th Congressional District chair for the Democratic Party Sabrina Berry sought sanctions under § 362(k) against creditor (and political rival) Dr. Grace Galloway, alleging that Galloway’s April 2025 Facebook posts and comments at a May 10 district political convention accusing Berry of theft were a willful violation of the automatic stay. The dispute arose after Berry filed bankruptcy on March 31, 2025, listing Galloway as a $3,900 unsecured creditor from a 2023 judgment. Days before the convention, Galloway announced her own candidacy for the same district chair position and publicly referenced the debt. Berry claimed Galloway’s social media and in-person remarks were an attempt to shame her into payment. Galloway denied any collection intent, asserting her speech was part of a political campaign and protected under the First Amendment. The court found the most credible evidence showed minimal interaction at the convention, no direction to others to pressure Berry, and that Berry could not even see the Facebook posts unless shown by third parties. While the posts “toed the line,” they were not attempts to collect a debt but rather political speech about Berry’s qualifications for office. Judge Edwards further held that even if the conduct might otherwise implicate § 362(a)(6), political campaign speech on a candidate’s financial history “occupies the highest rung of the hierarchy of First Amendment values” and likely could not constitutionally be sanctioned under § 362(k). The motion was denied. Additionally, there are multiple Adversary Proceedings pending in this bankruptcy case seeking to have debts declared nondischargeable based on allegations of fraud by the Debtor. Commentary: Although the opinion is circumspect about the political affiliations of Berry and Galloway, it is hard to ignore the subtext. The April 2025 dust-up — played out both online and in the middle of a contested party convention — ended not with a victory for either, but with the floor-nomination and election of Susan Smith as district chair. This public defeat, coupled with the courtroom airing of grievances in August, may well have been an unspoken catalyst for Berry’s June 6, 2025 defection to the Republican Party, as later trumpeted in the NC GOP’s own press release. From a bankruptcy practitioner’s perspective, the decision highlights two key points. First, § 362(a)(6) remains aimed at collection activity, not political opposition research, even when the “research” is personal, unflattering, and debt-related. Second, in a collision between bankruptcy’s protections and core political speech, courts will tread very carefully, if not defer entirely, to First Amendment safeguards. Debtor’s counsel should be mindful that in a campaign context, even factually accurate but reputationally damaging statements about a debt may be insulated from sanctions, absent clear evidence of coercive collection intent. And for those whose political aspirations run parallel to their bankruptcy cases, the lesson may be simple: the automatic stay is a shield against collection, not a cloak of invisibility against your rivals on the convention floor — especially if they, too, have “receipts in hand.” With proper attribution, please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document in_re_sabrina_berry.pdf (447.01 KB) Category Western District