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19th Annual Great Debates
Jeffrey N. Pomerantz, Moderator
ABI Vice President-Education
Pachulski Stang Ziehl & Jones LLP; Los Angeles
Resolved: Curbing pension rights in a chapter 9 case is constitutional.
Con: Babette A. Ceccotti
Cohen, Weiss & Simon LLP; New York
Resolved: Committee member fees are not payable as part of a Chapter 11 plan.
Pro: Nan Roberts Eitel
Executive Office for U.S. Trustees; Washington, D.C.
Con: Dennis F. Dunne
Milbank, Tweed, Hadley & McCloy LLP; New York
Resolved: A chapter 13 debtor may employ § 363 to effect a free-and-clear short sale of his/her principal residence notwithstanding § 1322(b)(2) and the secured creditor’s objection.
Pro: Hon. Eugene R. Wedoff
U.S. Bankruptcy Court (N.D. Ill.); Chicago
Con: Hon. Mary Grace Diehl
U.S. Bankruptcy Court (N.D. Ga.); Atlanta
Reconsidering Safe Harbors For Repurchase Agreements
Recent decades have seen substantial expansion in exemptions from the Bankruptcy Code’s provisions with respect to repurchase agreements, or “repos.” These agreements, which are equivalent to very-short-term (often one-day) secured loans, are exempt from such core bankruptcy provisions as the automatic stay, the avoidability of fraudulent transfers and the avoidability of preferences. Recent scholarship has questioned whether these exemptions are justified for mortgage-backed securities and other securities that could prove illiquid or unable to realize their long-term value in the event of the kind of panic experienced during the financial crisis of 2007-09. This panel will explore the arguments for and against revising the Bankruptcy Code’s existing treatment of these agreements.
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