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Basic Bankruptcy Law
for Paralegals
for Paralegals
David L. Buchbinder
Robert J. Cooper
Copyright © 2020 Aspen Publishing. All Rights Reserved.
us at www.AspenPublishing.com.
Aspen Publishing
PO Box 990
Frederick, MD 21705
1 2 3 4 5 6 7 8 9 0
ISBN 978-1-5438-1375-3
Names: Buchbinder, David L., author. | Cooper, Robert J., 1961- author.
Title: Basic bankruptcy law for paralegals / David L. Buchbinder, Robert J. Cooper.
Classification: LCC KF1524.85 .B7583 2020 (print) | LCC KF1524.85 (ebook) | DDC
346.7307/8—dc23
digital learning solutions to law schools in the U.S. and around the
The Aspen Casebook Series (famously known among law faculty and
such as the Examples & Explanations and the Emanuel Law Outlines
available to students.
course curricula.
students.
students with access to the most popular study aids on the market
audio, and video formats with full text search, note-taking, and
highlighting capabilities.
exploration.
p. vii
Summary of Contents
Contents
Preface
Acknowledgments
Avoiding Powers
p. viii
p. viii
p. ix
Contents
Preface
Acknowledgments
B. Common Activities
Summary
Key Terms
Discussion Questions
Summary
Key Terms
Discussion Questions
1. Intake
2. The Interview
p. ix
p. x
D. Initial Interview
Discussion Questions
B. Voluntary Petitions
C. Involuntary Petitions
Summary
Key Terms
Chapter 4 Checklist
Discussion Questions
Practice Exercises
D. Statutes of Limitation
Summary
Key Terms
Chapter 5 Checklist
Discussion Questions
Chapter 6. Needs Based Bankruptcy or “Means Testing”
A. Introduction
C. Deductions
D. Special Circumstances
E. “Totality of Circumstances”
F. Procedure
Summary
Key Terms
Chapter 6 Checklist
Discussion Questions
Practice Exercises
A. Claim
B. Community Claim
p. x
p. xi
C. Corporation
D. Creditor
F. Debt
K. Insiders
L. Insolvent
M. Judicial Lien
N. Lien
O. Median Family Income
P. Person
Q. Security
R. Security Agreement
S. Statutory Lien
T. Transfer
Summary
Discussion Questions
Summary
Key Terms
Chapter 8 Checklist
Discussion Questions
Practice Exercises
A. Conversion
B. Dismissal
Summary
Key Terms
Discussion Questions
Practice Exercise
A. Background
B. Selecting Exemptions
p. xi
p. xii
C. Federal Exemptions
D. Unaffected Claims
Summary
Key Terms
Chapter 10 Checklist
Discussion Questions
Practice Exercises
Summary
Key Terms
Discussion Questions
Practice Exercises
Summary
Key Terms
Chapter 12 Checklist
Discussion Questions
Practice Exercise
E. Objecting to Discharge
Summary
Key Terms
Discussion Questions
Practice Exercises
p. xii
p. xiii
Avoiding Powers
B. Turnover Complaints
Summary
Key Terms
Discussion Questions
B. Fraudulent Transfers
Summary
Key Terms
Chapter 15 Checklist
Discussion Questions
Practice Exercises
B. General Rules
Summary
Key Terms
Chapter 16 Checklist
Discussion Questions
A. Claim Determination
C. Secured Claims
D. Statement of Intention
E. Redemption
F. Order of Distribution
Summary
Key Terms
Chapter 17 Checklist
Discussion Questions
Practice Exercises
A. Introduction—Reorganization Proceedings
p. xiii
p. xiv
E. Confirmation Hearings
F. Confirmation Conditions
G. Feasibility Analysis
H. Cramdown
I. Effect of Confirmation and Chapter 13 Discharge
Summary
Key Terms
Chapter 18 Checklist
Discussion Questions
Practice Exercise
Introduction to Chapter 11
Summary
Key Terms
Chapter 19 Checklist
Discussion Questions
Key Terms
Discussion Questions
C. BAFJA
F. Jury Trials
Summary
Key Terms
Discussion Questions
A. Introduction
C. Schedules
Summary
Discussion Questions
p. xiv
p. xv
A. Introduction
Summary
Discussion Questions
A. Traditional Methods
B. The Internet
Chapter 24 Checklist
Discussion Questions
Note on Forms Manual: The forms referenced in the text can be downloaded from
BankruptcyAbridged5.
p. xv
p. xvii
Edition
Our primary intent has been to design this text as a basic primer
one has been provided with the basic theory behind it.
students from all over the country, some of whom have gone to
the practical nature of the text, and to further simplify the subtleties
also present a detailed fact pattern designed almost like a short story
p. xvii
p. xviii
design will help to facilitate the learning process for the students as
they can tie the new material presented in each subsequent chapter
back to the underlying fact pattern. This revised edition includes the
the end. In this way, the material will act as both an introduction and
It has not been our intent to analyze the complex subtleties of the
Bankruptcy Code and its attendant case law interpretation, but rather
attorneys may also find this text a useful reference tool for finding
proceedings, and learn about the documents and the timing involved,
relief and debt system. We are honored to have been given the
use.
This edition has also been prepared with the secondary purpose
p. xviii
p. xix
the system.
We hope you find the text useful and practical as the teaching
materials. The forms are available for download. All forms can be
www.AspenPublishing.com/Buchbinder-BankruptcyAbridged5.
David L. Buchbinder
Robert J. Cooper
January 2020
p. xix
p. xxi
Acknowledgments to the
Abridged Edition
and Troy Froebe from Aspen Publishers have worked long and
patiently to bring this project to reality. Betsy Kenny, who has been
great pleasure in thanking first and foremost Bob Cooper for his
development, and Paul Sobel at The Froebe Group who handled the
instructors who teach and the students who learn from the work who
have thought and think highly enough of it to give Robert and I the
David L. Buchbinder
When David called and asked if I would like to co-author this
started to sink in. As they say, sometimes life gets in the way. When I
excited and said, “Of course, you said yes! You’ve always wanted to
and make no mistake: Writing takes its toll on the entire family.
Without the support of my wife and my three boys, I could not have
committed the time and effort to this project that it required and
deserved. I knew that the original text was an excellent resource, and
think that the quality of the final product shows just how successful
the collaboration was between him and me. I will forever be grateful
p. xxi
p. xxii
It’s eight years later, and I still think that it’s been a blast to work
on this project. The focus of this “great writing adventure” has always
been on the instructors and the students. Our goal was to provide
them with a reference that they could use to help them navigate the
revision is the first to include all of the changes in the law, the Official
“fact pattern” for the entire book. It was a huge undertaking, but I
think well worth the time invested in the end and a benefit for the
students.
Robert J. Cooper
The more things change, the more they stay the same. Or maybe I
have that backwards. I have been blessed to work with David again
process a joy to accomplish. In this edition, we are again the first out
of the gate with the new Code changes effective April 1, 2019, as well
be our working model in this edition and the bedrock supporting our
Robert J. Cooper
p. xxii
p. xxiii
Introduction
and 9 infra. The paralegal must always tread cautiously in the face of
legal advice.
p. xxiii
p. xxiv
of legal practice.
B. COMMON ACTIVITIES
chapters will serve as useful practice aids for students in class and
infra, is by far the most common. A paralegal may also assist counsel
in the preparation and prosecution of a motion for relief from the
of activity conducted will not vary from those in any other litigation:
and motions may have to be written, and finally, the matter may have
p. xxiv
p. 1
Learning Objectives
in any society where there are debtors (those who owe) and creditors
form from the first moment that a tribal chieftain or village elder
distribution of the
p. 1
p. 2
1
proceeds of those assets among . . . multiple creditors.” The primary
departs from this trend in its liberal treatment of debtor relief. In many
respects, the U.S. Bankruptcy Code is perhaps the most liberal debtor
relief bankruptcy system to come into existence since the jubilee year
2
of the Old Testament.
The jubilee year occurred every 50 years. (Every seventh year was
3
provided. ) The essence of the jubilee year is contained in the biblical
verse: “And ye shall hallow the fiftieth year, and proclaim liberty
throughout the land unto all the inhabitants thereof; it shall be a
jubilee unto you; and ye shall return every man unto his possession,
4
and ye shall return every man unto his family.” In the jubilee year, all
relief from debt, is the most basic element of debtor relief). During the
5
satisfaction of a debt.
The debtor relief provided for in the Old Testament most likely
issued decrees releasing private debts in barley and silver and freeing
6
form of debtor relief from which bankruptcy systems have evolved.
p. 2
p. 3
basin. Early Greek law did not seek to discharge debtors or reconcile
accounts: a debt was always collectible. In the fifth century B.C., the
7
into slavery to satisfy a debt.
8
ancient Greece and republican Rome. Roman republican law also
provided that multiple creditors could, upon exhibiting a debtor in the
forum for three days, divide the debtor up into pieces in satisfaction
also seize a deceased debtor’s corpse and hold it for ransom from the
9
debtor’s heirs until the debts were satisfied. This practice would
make sense in Roman culture since the body had to remain whole if it
10
law evolved in a direction favoring debtor relief. By approximately
the second century A.D., debtor slavery had been abolished. Debtor
debtor. The debtor could be held for ransom only until friends or
11
family of the debtor paid the debt. (Debtor imprisonment has
North Africa, and the Middle East. This vast area, comparable in size
12
creditors) and restrained personal execution. This restraint took the
Although this act would not discharge those debts that were not fully
p. 4
14
States bankruptcy law. To a modern American observer, this
15
granted also came into use as the economy grew in sophistication.
16
returned to vogue, prevailing throughout the period. The Christian
17
death. As had been the case in early Rome, religious sanctions
different from the earlier practices of the Roman Republic. They were
consistent with a simpler society in which there once again existed
few entities with multiple creditors. In the Dark Ages, a serf would
generally be beholden to only two creditors: the feudal lord and the
p. 4
p. 5
18
tenth century. As trade recommenced, the credit system resumed.
The first bankruptcy laws that arose in the late Middle Ages were
place or bench ( banca) in the local market would befall a debtor who
fraudulently concealed or transferred assets while not paying his or
her just debts. In Italy this was known as banca rotta and in France
be released from the debts due those creditors who agreed to the
where such statutes did not come into regular existence until after
22
1705.
the sale of a debtor into slavery or debtor dissection was probably not
23
permitted. The first statute akin to a bankruptcy statute was
p. 5
p. 6
24
until the debt was paid. We recognize at least part of this procedure
device.
25
debt was actually paid. Some form of debtor imprisonment existed
26
in England until the twentieth century. The first true insolvency law
27
in England was not enacted until 1543. This delay, in contrast to the
28
involvement in international trade until the sixteenth century. The
29
was initiated by creditors. There was no discharge for the debtor.
To the extent that this proceeding was creditor initiated, it was similar
30
to the present-day American involuntary petition. In 1571, the
fixed time prior to the bankruptcy filing were considered void. For
31
act. This statute is a likely basis of today’s concept of an avoidable
32
transfer, which is a major feature of our Bankruptcy Code.
33
1697-1698. Because a discharge, legal relief from debt, could occur
34
creditors could effectuate a full discharge of all debt. The Statute of
p. 7
the jubilee year of the Old Testament. Otherwise, the Statute of Anne
eight shillings per pound be paid to creditors and that no act in fraud
35
debtor’s exemptions. In 1732, the Statute of George added the
36
debtor receiving a discharge. These statutes compose the formal
37
our total white immigration came over under indenture.” Indentured
38
servitude acted as an alternative to debtor prison in some colonies.
39
eighteenth century. One goal of the Constitutional Convention was
to establish the free flow of trade and commerce between the various
40
Bankruptcies throughout the United States.” By virtue of the
41
the states from so acting and acts as the supreme law of the land.
The power granted Congress to enact federal law on the various
Bankruptcy laws were only in effect in the United States for short
p. 7
p. 8
United States until after 1830. After this date, a movement toward
42
debtor imprisonment. While debtor imprisonment lasted, however,
43
occupied prisons than convicted criminals.
The first United States Bankruptcy Act was in effect from 1800 to
1803. This statute was virtually identical in its features to the law in
44
England as it existed after 1732 as described above.
45
some debts would not be affected by a discharge.
46
1867 to 1878. This act expanded upon the scope of debtor relief
provided for in the 1841 law by permitting state exemptions to be
47
reorganization proceedings of Chapters 11, 12, and 13.
48
Bankruptcy Code became law. The 1898 Act contained all of the
XI and XIII, the reorganization proceedings that still exist under the
49
Bankruptcy Code. The Supreme Court described the Act’s liberal
50
financial affairs. In 1970, Congress authorized a commission to
p. 8
p. 9
51
recodification of the Bankruptcy Act was in order. The report was
fresh start to the debtor. Such liberal treatment of debtor relief has
not existed since the jubilee and sabbatical years of ancient Israel.
52
commercial economies since the Roman Empire. Finally, the formal
Summary
Bankruptcy systems exist in any society where there are debtors
(those who owe) and creditors (those who are owed). The practice of
punished and not legally forgiven from debt. During the later Roman
exemptions.
text.
p. 9
p. 10
KEY TERMS
bankruptcy systems
composition agreement
debt collection
debtor relief
discharge
exemptions
DISCUSSION QUESTIONS
bankruptcy system?
Europe?
(July/Aug./Sept. 1987).
2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23 (2005), limited and restricted
3. Leviticus 25:1-8.
4. Leviticus 25:10. If a portion of this verse seems familiar, it is because the phrase
“proclaim liberty throughout the land unto all the inhabitants thereof” is the
5. Leviticus 25:11-55. The purpose of the jubilee year was to give debtors a second
chance or fresh start. The “fresh start” concept is another essential feature of
Under the Twelve Tables a creditor had to provide a 60-day redemption period
before a debtor could be sold into slavery. Payment of the debt within this
8. Id. See also Radin, Debt, 5 Ency. Soc. Sci. 33-34 (1931); Ford, Imprisonment for
10. Merrick, supra n.1; Radin, supra n.8; Ford, supra n.8.
14. Riesenfeld, Evolution of Modern Bankruptcy Law, 31 Minn. L. Rev. 401, 432
(1947).
15. Id. at 439, citing Code of Justinian VII.71.8. Justinian reigned as emperor of the
Eastern Empire during the sixth century A.D. Although after the final collapse of
the Western Empire, which most historians date at A .D. 476, the Code of
agreement between a debtor and two or more creditors that satisfies the debts
25. Countryman, supra n.7 at 811; Ford, supra n.8 at 27-28. A writ of capias ad
satisfaciendum was used in 1989 in New Jersey to place a debtor into custody.
A Bankruptcy Court refused to abrogate the writ. See 76 A.B.A. J. 28 (Feb.
1990); In re Bona, 110 B.R. 1012 (Bankr. S.D.N.Y. 1990). The use of a writ of
2000).
26. Ford, supra n.8 at 31. Ford points out that in 1921, 424 contract debtors were
39. Ford, supra n.8 at 28. See also Central Virginia Community College v. Katz, 546
U.S. 356 (2006), in which the U.S. Supreme Court discusses the evolution of
43. Ford, supra n.8 at 29, reports that in Pennsylvania, New York, Massachusetts,
and Maryland there were three to five times as many persons imprisoned for
debt as for crime. Countryman, supra n.7 at 814, cites statistics indicating that
1820s.
44. 2 Stat. 19 (1800). Countryman, supra n.7 at 813; Riesenfeld, supra n.14 at 407.
45. 5 Stat. 440 (1841); 5 Stat. 614 (1843); Countryman, supra n.7 at 814-815;
47. Countryman, supra n.7 at 815-816; Riesenfeld, supra n.14 at 409, 423, 446-447.
49. 52 Stat. 541 (1938). Countryman, supra n.7 at 817; Riesenfeld, supra n.14 at
51. Countryman, supra n.7 at 818; Report of the Commission on the Bankruptcy
Laws of the United States, H.R. Doc. No. 137, 82d Cong., 1st Sess., pt. I, ch. 17
(1973).
2008). In 1991 Hungary became the first former Warsaw Pact country to enact
Journal, April 1993. Polish bankruptcy law contains a statute similar to Chapter
11. See Bankruptcy Court Decisions Newsletter, June 10, 2003, LRP
p. 10
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