Law Of Fraudulent Conveyances Research Articles

Transfers at Undervalue: New Wine in Old Wineskins?

Section 96 of the Bankruptcy and Insolvency Act sets out provisions that permit a trustee in bankruptcy to challenge pre-bankruptcy transfers at undervalue entered into by a debtor. These provisions were amendments to the BIA that came into force in 2009. There can be no doubt that the transfer at undervalue provisions are vastly superior to the provisions that they replaced. The tools that are now at hand are much better suited to realizing the underlying objectives of bankruptcy and insolvency law. However, the new provisions recycle several features of prior law. Jurisdictions that have reformed their outdated fraudulent conveyance law will find that they have not been able to fully escape the hold of the past – many features of the old law are now preserved in the transfer at undervalue provisions of the BIA.

Coke, Collusion, and Conveyances: Unearthing the Roots of Twyne's Case

Twyne's Case, a leading case of Anglo-American fraudulent conveyances law, decided in 1602 by the Court of Star Chamber, states six marks et ensigns de fraud: if for instance a debtor conveys the entirety of his assets or conveys them to a closely connected person, this transfer of property is presumed to be fraudulent with regard to his creditors. This – at first glance – English concept of facilitating the evidence of fraud by the means of six presumptions stems from the ius commune and is rooted in the writings of the glossators of the thirteenth century, who developed this doctrine based on Roman legal sources from the Corpus Iuris Civilis. If not the members of the Star Chamber themselves in their judgment, at least Sir Edward Coke, when reporting their decision, incorporated this continental doctrine of praesumptiones fraudis into the law of fraudulent conveyances, where it still plays a prominent role in Anglo-American law.

Is the Almighty Entitled to the Almighty Dollar of the Bankrupt? Free Exercise Issues in the Bankruptcy Code

This paper will discuss the relationship between the Free Exercise Clause of the First Amendment and the Bankruptcy Code. There are several intersections of these seemingly distinct paths. This paper will address three of these crossroads as it pertains to what many religions find as a duty of its followers: tithing. Before addressing the bankruptcy issues, this paper will discuss the current application of the Free Exercise Clause and the application of Religious Freedom Restoration Act (“RFRA”). This paper will then introduce the areas in which the Bankruptcy Code and Free Exercise Clause intersect. In application of the Free Exercise Clause to the Bankruptcy Code, the first issue that will be addressed is fraudulent conveyance law both under the Bankruptcy Code and state law. Fraudulent transfer law, under state law and the Bankruptcy Code, allows creditors or trustees in bankruptcy to avoid any actual or constructive fraudulent transfer made by the debtor. Next, this paper will address the implications of a debtor’s Chapter 13 plan that requires the debtor to pay all of its “disposable income” to creditors and whether a debtor’s tithes should be excluded from this calculation. Finally, the issue of “charitable donations” allowed for in the means test will be addressed, and how these contributions may decrease the “current monthly income” of an individual allowing them access to Chapter 7 relief that would have been denied before these contributions were included in that calculation.

Avoid the Choice or Choose to Avoid? The European Framework for Choice of Avoidance Law and the Quest to Make it Sensible

In this paper, I propose a novel interpretation of rules for choice of law respect to avoidance actions under EC Regulation on Insolvency Proceedings. Further to an outline of statutory framework and its interaction rules on jurisdiction I focus on safe harbor rule, which protects a from avoidance under law of main proceedings if law governing such does not enable avoidance. The traditional interpretation of the law governing transaction in this provision designates law chosen by parties or regular choice­ of­ law rules. Instead, I propose that it be interpreted as referring to law with closest connection to transaction. I argue for a similar analysis in allocating avoidance actions among main and secondary insolvency proceedings.The proposed interpretation leads to a proper framework for addressing choice of avoidance law; it is practicable and is not trivial. On this basis, I propose three new rules related to choice of avoidance law: a rule for choice of applicable fraudulent conveyance law out of insolvency proceedings, a rule giving trustee in main proceedings standing to bring non­-insolvency fraudulent conveyance actions, and a rule expanding safe harbor provision to laws of non­member states.

Equitable Subordination of Shareholder Loans?

This comment concerns the financing of distressed corporations by shareholder loans. In the United States as well as in Germany, shareholder loans may be subject to subordination or even recharacterization as equity. The comment argues that the risk of an undue exploitation of a shareholder-lender’s insider status can effectively be neutralized by the law of fraudulent conveyances and unlawful preferences, supplemented by a general prohibition of securing shareholder loans.

Recharacterization and the Nonhindrance of Creditors

Using a 1977 article by Robert Clark as its starting point, this article attempts to shed new light on the question of whether and when shareholder loans to her company should be either equitably subordinated or, as courts have done in a few recent cases, recharacterized as equity. In its emphasis on the particular issue of shareholder loans, the article has a narrower compass than Clark’s article, which uses a four-part typology to explore the relationship among fraudulent conveyance law, equitable subordination, veil piercing, and dividend restrictions. But the article also expands Clark’s analysis in several respects. The most important adjustment involves the general Nonhindrance ideal, which we use to identify a crucially important form of interference with the rights of creditors that Clark does not himself consider directly.

Virtual Judgment Proofing: A Rejoinder

This is a rejoinder by the author of The Death of Liability, 106 Yale L.J. 1 (1996). The rejoinder is to a reply by Professor James J. White to the original article. Corporate Judgment Proofing: A Response to Lynn LoPucki's The Death of Liability, 107 Yale L.J. 1363 (1998). In response to specific points made by White, LoPucki argues that the judgment proofing of large companies would not be visible in Compustat data because it is not accomplished through secured debt or leasing and because Compustat data is aggregated by corporate group. Contracting parties will permit debtors to judgment proof themselves because by doing so the contracting parties and debtors can externalize liability and split the profits between them. LoPucki also responds to arguments that corporate veil piercing, fraudulent conveyance law, government and consumer reaction, and mandatory insurance will prevent judgment proofing by large companies. The rejoinder concludes that computerization will lead to the proliferation of virtual companies that are born judgment proof.

Incomplete Financial Contracts and Non-contractual Legal Rules: The Case of Debt Capacity and Fraudulent Conveyance Law

This paper illustrates how non-contractual legal rules sometimes alleviate contractual incompleteness. A serious incompleteness in debt contracts is the borrower's ability to fraudulently transfer assets to third parties, rendering the borrower insolvent. The incompleteness arises because contractual remedies are ineffective against third-party transferees who are not bound by the debt contract, while the borrower has no assets to recover. Fraudulent conveyance law is a non-contractual legal rule allowing recovery against these transferees. This increases debt capacity most dramatically for borrowers with highly liquid assets. Without non-contractual legal rules, high liquidation value implies low debt capacity. Journal of Economic Literature Classification Numbers: G32; G38.

Collective Inaction and Investment: The Political Economy of the Religious Liberty and Charitable Donation Protection Act

This Article uses the 1998 Religious Liberty and Charitable Donation Protection Act (the Act) to understand the phenomenon of collective inaction among well organized groups. It argues that the Act was the result of a investment decision made by creditor groups that required passivity. Although the evidence is sparse, it is consistent with well organized creditor groups choosing to postpone investing in opposing a specific bankruptcy reform. The expected gains from making an investment in such reforms in the future exceeded the gains from an immediate investment in such reform. Delay maximized creditor groups' expected return over time from the package of reforms urged by them. Inaction was not the result of an inability to make cost-justified organizational efforts to oppose the Act. Nor was it an implicit bargain, even in the extended sense of the term, between creditor groups and religious organizations in which creditor inaction was the price paid for the prospect of increased success in their ongoing efforts to have the Bankruptcy Code amended in their favor. Creditor inaction was unilateral, not a collusive outcome between creditors and religious groups, the main proponents of the Act. It was the same sort of investment decision as is made by any party who decides to delay incurring irretrievable costs. Part I describes the dominance of collective action models of legislative action. Part II briefly describes the Act's provisions and its legislative history, and argues that the Act cannot plausibly be understood by collective action models. Drawing on supporting case studies of salient phenomena in the political economy of trade protection, it also argues that the failure of well organized groups to act may not be an isolated occurrence. Part III considers and rejects some conventional explanations of creditor inaction consistent with the collective action models. Part IV analyzes creditor passivity as a deliberate postponement of an investment in bankruptcy reform and argues that the analysis is plausible. It suggests that creditor groups had a real option on maintaining existing fraudulent conveyance law, which remained more valuable unexercised than exercised. Part V concludes by briefly summarizing the Article's argument. An Appendix estimates the aggregate amount of prebankruptcy charitable contributions and describes bankruptcy law's effect on debtors' tax-driven incentives to make them.

Debt Capacity and Fraudulent Conveyance Law

Financial contracts break down in some states of the world, creating a role for non-contractual legal rules to span them and solve incomplete contracting problems. This paper shows how fraudulent conveyance law plays this role for debt contracts, forbidding asset transfers for less than reasonably equivalent that leave the borrower insolvent. This increases debt capacity for borrowers and ensures that the possibility of fraudulent asset transfers does not deter socially optimal investment. Fraudulent conveyance law increases debt capacity most dramatically for firms whose assets have very high liquidation values, providing the legal foundation necessary to support the standard economic insight that high liquidation value implies high debt capacity. Recognizing the role non-contractual legal mechanisms play can improve the predictive power of financial contracting models, especially those that erroneously assume the unhindered possibility of fraudulent asset transfers (theft) by managers.

Virtual Judgment Proofing: A Rejoinder

This is a rejoinder by the author of The Death of Liability, 106 Yale L.J. 1 (1996). The rejoinder is to a reply by Professor James J. White to the original article. Corporate Judgment Proofing: A Response to Lynn LoPucki's The Death of Liability, 107 Yale L.J. 1363 (1998). In response to specific points made by White, LoPucki argues that the judgment proofing of large companies would not be visible in Compustat data because it is not accomplished through secured debt or leasing and because Compustat data is aggregated by corporate group. Contracting parties will permit debtors to judgment proof themselves because by doing so the contracting parties and debtors can externalize liability and split the profits between them. LoPucki also responds to arguments that corporate veil piercing, fraudulent conveyance law, government and consumer reaction, and mandatory insurance will prevent judgment proofing by large companies. The rejoinder concludes that computerization will lead to the proliferation of virtual companies that are born judgment proof.

Bankruptcy, Fraudulent Conveyance Law, and Business Valuations

Bankruptcy, Fraudulent Conveyance Law, and Business Valuations

Applying Fraudulent Conveyance Law to Leveraged Buyouts

Applying Fraudulent Conveyance Law to Leveraged Buyouts

Fraudulent Conveyance Law and Leveraged Buyouts

Fraudulent Conveyance Law and Leveraged Buyouts

Intercorporate Guaranties and the Law of Fraudulent Conveyances: Lender Beware

Intercorporate Guaranties and the Law of Fraudulent Conveyances: Lender Beware

Cases on the Law of Bankruptcy, Including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy, Including the Law of Fraudulent Conveyances

The Law of Fraudulent Conveyances

The Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy, Including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy, Including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy Including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy Including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy including the Law of Fraudulent Conveyances

Cases on the Law of Bankruptcy including the Law of Fraudulent Conveyances