Discharge/Dischargeability

Two pairs of judges square off to consider (1) whether bankruptcies can be properly filed when a debtor faces a deluge of potential tort claims and (2) whether bankruptcy courts can support plans regarding certain special fee and financing arrangements for debtors. RESOLVED: That a bankruptcy is filed in good faith where the debtor is not otherwise in immediate financial distress and appears to have the liquidity to pay its creditors in full, but where the case is filed because of the debtor is a defendant facing a deluge of tort claims that could at some point threaten the debtor’s business and where the debtor believes that the mechanism for liquidating those claims through a trust created under a plan of reorganization will be fairer and better for all parties than the results that would otherwise obtain in the tort system. RESOLVED: That a bankruptcy court may approve a DIP financing agreement that incorporates the milestones set out in a restructuring support agreement, that provides that (a) the debtors will propose a plan that provides specified treatment to the Supporting Parties, which treatment is materially the same as the plan provides to similarly situated creditors; (b) obligates the Supporting Parties to vote in favor of the debtor’s plan and to vote against any competing plan; and (c) provides that the Supporting Parties (and only the supporting parties) will provide exit financing to the Reorganized Debtors, at rates and fees that exceed prevailing market terms.

Debtors’ lives don’t stop once a chapter 13 is filed. Jobs could be changed or lost, property can be sold and inherited, and debtors can become injured and can sue. Debtor's counsel has to know how to “roll with the punches” and still achieve the best outcome for their client. This panel will discuss the impact of foreseen and unforeseen events in a chapter 13 case. Who gets the benefit of equity in a debtor’s home if it is sold and has appreciated since filing? What if the case converts to chapter 7? What assets are included in the chapter 7 estate upon conversion? Does a debtor have a duty to disclose a post-petition asset such as a cause of action or inheritance? How does debtor’s counsel get paid to deal with all of these issues? Is a chapter 13 trustee entitled to be paid if a case is dismissed before confirmation? What are the requirements to modify what is paid in a chapter 13 plan?

The steep rise in student loan debt is one of the most pressing issues our country faces as it strives to create a more just and equitable society. Getting a college degree has become steadily more expensive, and graduates are often left with overwhelming debt burdens that sometimes take decades to repay. Coupled with the nondischargeability of student debt under the Bankruptcy Code, the “student debt problem” has become one of the most pressing issues of our time. This panel of experts will discuss how this problem could be addressed in a way that is equitable, fair and effective under the existing Bankruptcy Code, as well as possible reform.

Bankruptcy discharges go to “honest but unfortunate debtors,” but creditors (because they want their money!) don’t always give up their quests to extract money, even after a bankruptcy case concludes. These useful case examples will guide practitioners through a survey of the most common quarrels over discharges and exceptions.

For many distressed businesses, factoring loans — where third-party companies provide advances on invoices due — can be lifelines. This session will discuss this trending topic, as well as the dischargeability of nonpriority taxes for late-filed tax returns, and cryptocurrency.

For many distressed businesses, factoring loans — where third-party companies provide advances on invoices due — can be lifelines. This session will discuss this trending topic, as well as the dischargeability of nonpriority taxes for late-filed tax returns, and cryptocurrency.

To ease the financial fallout from the pandemic, there could be increased congressional interest in consumer bankruptcy reform. Sen. Elizabeth Warren and Rep. Jerrold Nadler already have proposed a complete overhaul of the consumer bankruptcy system and a new chapter 10 for all individual debtors. Several pending legislative proposals would make it easier to discharge student loans in bankruptcy. Profs. Robert Lawless and Adam Levitin will explain these proposals, the motivating factors behind them, and what else might be coming in the consumer bankruptcy world.

Bankruptcy Judges Elizabeth Brown and Michael Romero will discuss the year’s widest splits and most controversial opinions with ABI Editor-at-Large Bill Rochelle.