In an effort to minimize the risk of loss in connection with a loan default, lenders often employ creative means to make it difficult, if not impossible, for a borrower to file bankruptcy. Lenders are generally aware that the right to seek bankruptcy protection is a fundamental constitutional right, given the inclusion of Congressional power to establish uniform laws on bankruptcy set forth in Article 8 of the U.S. Constitution.

It’s always risky when the Supreme Court grants certiorari in a bankruptcy case. While the Court’s opinion may bring clarity to the narrow question upon which certiorari was granted, it often creates a host of unintended problems in other areas.

On October 1, a bankruptcy judge ruled that the pension agreement between Stockton, California and Calpers, California’s massive state-run pension fund for public employees, is an executory contract that can be rejected in bankruptcy. Judge Christopher Klein of the Eastern District of California found that California laws designed to protect Calpers from municipal bankruptcies could not be enforced once a city entered bankruptcy.

A bankruptcy can be hazardous to the health of an executive’s bonus check.  Sometimes, however, an executive can survive an attack on a bonus in a bankruptcy, and come out clean on the other side.  For example, we covered here how one executive succeeded in keeping most of his incentive pa

Consumer debtors file bankruptcy for many of reasons, but all ultimately want the same thing: a discharge of their debts. Stated very generally, a bankruptcy discharge operates to remove the personal liability of a consumer debtor from his or her pre-petition debts. Depending on whether a debtor files Chapter 7 or Chapter 13 bankruptcy, they can obtain a discharge within a few months after filing bankruptcy or following the completion of a five year plan of reorganization. During bankruptcy, a debtor is protected by the automatic stay.

With the reauthorization of the Higher Education Act (HEA) in full swing, the time is ripe for Congress to reconsider current laws prohibiting postsecondary institutions that declare bankruptcy from participating in the federal financial aid programs. Chapter 11, in particular, is a critical tool for institutions in distress, and may be needed now more than ever.

Though often overlooked, bankruptcy sales can be a real boon to businesses looking for a great deal. Prospective purchasers must, of course, interface with the bankruptcy court, so these companies must understand the lay of the land when looking for a bargain.

Shareholders of financially troubled S corporations may now be able to avoid the flow-through of taxes when the S corporation or its subsidiary files bankruptcy.  In In re Majestic Star Casino, LLC, 716 F.3d 736 (3rd Cir. 2013), the Third Circuit Court of Appeals ruled that an S corporation shareholder, who may have received the benefit of years of flow-through income tax treatment from the S corporation, may avoid the flow-through of taxable gain or income in bankruptcy simply by revoking the S corporation election.

“That ain’t right. Baby, that ain’t right at all.”

– Nat King Cole

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