Introduction to Bankruptcy Law / Edition 5

by Martin A. Frey, Phyllis Hurley Frey, Sidney K. Swinson, Phyllis Hurley

Overview

The authors of this publication have taken a practical approach to teaching the intricacies of bankruptcy. To promote reader comprehension, they employ step-by-step explanations and flow charts of each type of filing, supporting case examples, challenging problems to address, and the definition of new terms as they are introduced. To further enhance learning, the roles of the various parties involved in the process are described in detail, particularly the role of the paralegal. From fact gathering and interfacing with clients, to the preparation of various official forms, paralegals will come to understand their role and those of others in handling bankruptcy cases. The most up-to-date official bankruptcy forms with detailed explanations for completing them are contained within the publication, as are debtor and creditor client questionnaires.

Product Details

ISBN-13:	9781418040963
Publisher:	Cengage Learning
Publication date:	04/12/2006
Series:	West Legal Studies
Edition description:	REV
Pages:	672
Product dimensions:	8.40(w) x 10.90(h) x 1.00(d)

About the Author

Martin A. Frey, BSME, JD, LLM,is a Professor Emeritus at The University of Tulsa, Tulsa, Oklahoma, Senior Adjunct Settlement Judge for the United States District and Bankruptcy Courts for the Northern Districts of Oklahoma, and was the Reporter for the Civil Justice Reform Act Advisory Group for the United States District Court for the Northern District of Oklahoma. He was a professor at Drake and Texas Tech Universities and a visiting professor at the University of Maine, Washington University (St. Louis), the University of Alabama, Wake Forest University, Stetson University, and Florida International University. When teaching, Professor Frey served on a number of site visitation teams for the Section on Accreditation and Admission to the Bar of the American Bar Association. Professor Frey currently volunteers with the Financial Crimes Unit of the Tulsa Police Department. He is the author or co-author of "The Little Black Book, A Do-It Yourself Guide for Law School Competitions" (Carolina Academic Press, 2002); "Alternative Methods of Dispute Resolution" (Delmar Learning Thomson, 2003); "Introduction to the Law of Contracts, 4th Edition (Delmar Cengage Learning, 2008); "Introduction to Bankruptcy Law, 6th Edition (Delmar Cengage Learning, 2013); and "Essentials of Contract Law," 2nd Edition (Cengage Learning, 2015).


Sidney K. Swinson, BBA, JD, is a Shareholder, Officer and Director of GableGotwals, Tulsa, Oklahoma, an Adjunct Professor at The University of Tulsa College of Law, a Chapter 7 trustee for the United States Bankruptcy Courts for the Northern and Eastern Districts of Oklahoma, a Fellow of the American College of Bankruptcy, a Director of the Bankruptcy and Reorganization Section of the Oklahoma Bar Association, an Adjunct Settlement Judge for the United States Bankruptcy Court and United States District Court for the Northern District of Oklahoma, a member of the American Bankruptcy Institute and the National Association of Bankruptcy Trustees, the recipient of the Oklahoma Bar Association Courageous Lawyer Award and the John E. Shipp Ethics Award, and a bankruptcy practitioner.

Table of Contents

	Table of Exhibits	xx
	Table of Cases	xxii
	Table of Statutes and Rules	xxiii
	Preface	xxxi
Chapter 1	The Evolution of Bankruptcy Law	1
Section 1	Brief History of Modern Bankruptcy Law
A.	The Appearance of Bankruptcy in Early English Law	2
B.	Treatment of Bankruptcy in the United States Constitution	2
C.	Early American Bankruptcy Statues	2
D.	The Bankruptcy Act of 1898	3
E.	The Bankruptcy Reform Act of 1978	4
F.	Amendments to the Bankruptcy Reform Act of 1978	5
G.	Future Bankruptcy Reform	7
Section 2	The Dual Nature of Bankruptcy as a Remedy for Both Creditors and Debtors
Chapter 2	Bankruptcy Law and Where to Find It	9
Section 1	The Bankruptcy Code
A.	The Universal Chapters	13
B.	The Operative Chapters	17
Section 2	The Federal Rules of Bankruptcy Procedure and Official Forms
A.	The Federal Rules of Bankruptcy Procedure and Official Forms	20
B.	The Local Rules	21
Section 3	Bankruptcy Law Cases
Section 4	Secondary Authority
A.	Legislative History	24
B.	Digests	25
C.	Loose-leaf Services	25
D.	Treatises	25
E.	Legal Periodicals	26
F.	American Law Reports	27
G.	Legal Encyclopedias	27
H.	Internet Resources	27
Chapter 3	The Cast of Characters and Their Roles in the Bankruptcy Process	29
Section 1	The Debtor, the Debtor's Attorney, and the Paralegal
A.	The Debtor	30
B.	The Debtor's Attorney	31
C.	The Paralegal	32
Section 2	The Bankruptcy Petition Preparer
Section 3	The Creditors and Other Parties in Interest
A.	Creditors	34
B.	Other Parties in Interest	39
Section 4	The Administrative Office of the United States Courts
Section 5	The Bankruptcy Judge and Staff
A.	The Bankruptcy Judge	42
B.	The Judge's Law Clerk, Judicial Assistant, and Courtroom Deputy	43
C.	The Court Reporter	43
Section 6	The Office of the Clerk of the Bankruptcy Court
A.	The Bankruptcy Court Clerk	43
B.	The Deputy Clerks	44
Section 7	The United States Trustees, Private Trustees, and Examiners
A.	The United States Trustees	45
B.	Private Trustees	46
C.	Examiners	49
Chapter 4	Information Gathering, Analysis, Counseling, and Drafting	50
Section 1	The Debtor-Client
A.	Information Gathering	52
B.	Analysis: Nonbankruptcy or Bankruptcy	65
C.	Counseling	76
D.	Drafting of Bankruptcy Forms	76
Section 2	The Creditor-Client
A.	The Causes of the Creditor's Distress	77
B.	Information Gathering	77
C.	Analysis: If the Debtor Has Filed Bankruptcy	77
D.	Analysis: Alternatives If the Debtor Has Not Filed Bankruptcy	80
E.	Counseling	85
Section 3	The Debtor-Client in an Involuntary Bankruptcy
A.	Information Gathering	85
B.	Analysis	86
C.	Counseling	86
Chapter 5	The Voluntary Chapter 7 Bankruptcy (Liquidation)	88
Section 1	The Initiation of a Chapter 7 Case
Section 2	The Filing of the Petition
A.	The Debtor's Petition (Official Form No. 1)	103
B.	The Filing Fee	112
C.	The Clerk's Notice	115
D.	Corporate Resolution Authorizing Filing of Chapter 7	117
E.	Disclosure of Attorney's Compensation Statement	118
F.	The List of Creditors	121
G.	Schedules (Official Form No. 6)	122
H.	Statement of Financial Affairs	168
I.	Statement of Intention If the Debtor Is an Individual with Consumer Debts	190
J.	Debtor's Duty to Supplement the Schedules	192
K.	Debtor's Right to Amend the Petition, Lists, Schedules, and Statements	193
Section 3	The Significance of Filing a Petition
A.	The Order for Relief	194
B.	The Estate Is Created	194
C.	Exemptions	201
D.	The Automatic Stay	207
Section 4	The Appointment and Powers of an Interim Trustee
A.	Abandon Property of the Estate	213
B.	Assume or Reject Executory Contracts	214
C.	Avoiding Transfers	215
Section 5	Proofs of Claim and Proofs of Interest
A.	Creditors' and Indenture Trustees' Proofs of Claim	230
B.	Equity Security Holders' Proofs of Interest	230
Section 6	Motions and Complaints after the Order for Relief
A.	Motions	234
B.	Complaints	252
Section 7	Order and Notice of Chapter 7 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates
Section 8	Objections by a Party in Interest to Debtor's Claim of Exemptions
Section 9	Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders
A.	The Meeting of Creditors	270
B.	The Meeting of Equity Security Holders	271
Section 10	Redemption, Discharge and Reaffirmation
A.	Redemption	271
B.	Discharge and Reaffirmation	271
C.	Revocation of Discharge	272
Section 11	Distribution of the Property of the Estate
A.	Priority Claims	278
B.	Nonpriority Claims	280
Section 12	Closing the Case
A.	Trustee's Final Report and Proposed Distribution	281
B.	Trustee's Final Account after Distribution and Request for Discharge	281
C.	Closing the Case	281
Section 13	After the Case Is Closed
A.	Amending the Case without Reopening the Case	294
B.	Reopening a Closed Case	294
Chapter 6	The Chapter 13 Bankruptcy (Adjustment of Debts of an Individual with Regular Income)	298
Section 1	The Initiation of a Chapter 13 Case
Section 2	The Chapter 13 Plan
A.	Contents of a Chapter 13 Plan	308
B.	The Debtor's Payments under the Plan	318
C.	Modification of the Plan before Confirmation	318
Section 3	The Filing of the Petition
Section 4	The Significance of Filing a Petition
A.	Possession and Control of Property of the Estate	321
B.	Operation of the Debtor's Business	321
C.	Exemptions	321
Section 5	Appointment and Duties of a Chapter 13 Trustee
Section 6	Motions and Complaints after the Order for Relief
A.	Motions	323
B.	Complaints	325
Section 7	The Clerk's Notice
Section 8	Meeting of Creditors (The Section 341 Meeting)
Section 9	Hearing on Confirmation of the Plan
Section 10	Trustee's Distribution of Payments under the Plan
Section 11	Modification of the Plan after Confirmation
Section 12	Revocation of Order of Confirmation
Section 13	Discharge
Section 14	Revocation of the Discharge
Section 15	Closing the Case and Proceedings after the Case Is Closed
Chapter 7	The Chapter 12 Bankruptcy (Adjustment of Debts of a Family Farmer with Regular Annual Income)	344
Section 1	The Initiation of a Chapter 12 Case
Section 2	The Chapter 12 Plan
A.	Contents of a Chapter 12 Plan	357
B.	The Debtor's Payments under the Plan	358
C.	Modification of the Plan before Confirmation	363
Section 3	The Filing of the Petition
Section 4	The Significance of Filing a Petition
A.	Possession and Control of Property of the Estate: The Debtor in Possession	368
B.	Operation of the Debtor's Business	368
C.	Exemptions	369
Section 5	Appointment and Duties of a Chapter 12 Trustee
Section 6	Motions and Complaints after the Order for Relief
A.	Motions	371
B.	Complaints	374
Section 7	The Clerk's Notice
Section 8	Meeting of Creditors (The Section 341 Meeting)
Section 9	Hearing on Confirmation of the Plan
Section 10	Trustee's Distribution of Payments under the Plan
Section 11	Modification of the Plan after Confirmation
Section 12	Revocation of Order of Confirmation, Conversion, or Dismissal
Section 13	Discharge
Section 14	Revocation of the Discharge
Section 15	Closing the Case and Proceedings after the Case Is Closed
Chapter 8	The Voluntary Chapter 11 Bankruptcy (Reorganization)	388
Section 1	The Initiation of a Chapter 11 Case
Section 2	The Chapter 11 Petition and the Significance of Filing a Chapter 11 Petition
A.	The Filing of the Chapter 11 Petition	395
B.	The Significance of Filing a Petition	401
C.	Evidence of Debtor in Possession (DIP) Status	405
D.	Exemptions	405
Section 3	The Chapter 11 Plan
A.	Strategies Utilized in Reorganization Plans	407
B.	Contents of a Chapter 11 Plan	413
C.	Modification of a Chapter 11 Plan	415
D.	Chapter 11 Plan Filed by Parties Other Than the Debtor	422
Section 4	A Disclosure Statement or Evidence Showing Compliance with 11 U.S.C.A. [Section] 1126(b)
Section 5	Order and Notice of Chapter 11 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates
Section 6	Motions and Complaints
A.	Motions	435
B.	Complaints	435
Section 7	Appointment of a Committee of Unsecured Creditors and a Committee of Equity Security Holders
Section 8	Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders
Section 9	Hearing on the Disclosure Statement
Section 10	Hearing on Confirmation of the Plan
Section 11	Effect of Confirmation of the Plan
Section 12	Distribution under the Plan and Reporting by Debtor in Possession or Chapter 11 Trustee
Section 13	Revocation of an Order of Confirmation
Section 14	Final Report and Final Decree
Chapter 9	Selecting the Appropriate Type of Bankruptcy Filing	458
Section 1	Eligibility
Section 2	Selecting the Chapter If the Debtor Is Eligible under Multiple Chapters
A.	The Business Debtor	464
B.	The Nonbusiness Debtor	467
Chapter 10	The Involuntary Bankruptcy: Chapter 7 or Chapter 11	473
Section 1	Limitations on Filing an Involuntary Petition
A.	Debtors Who May Be Subject to an Involuntary Petition	474
B.	Requirements of a Petitioning Creditor	474
Section 2	Flow Chart for the Involuntary Petitions
Section 3	The Filing of the Creditors' Petition
Section 4	The Significance of Filing a Petition
A.	The Order for Relief, the Bankruptcy Estate, and the Automatic Stay	485
B.	Appointment of a Trustee	485
C.	Gap Period Creditors	485
Section 5	The Debtor's Answer
Section 6	Hearing and Disposition of an Involuntary Petition
A.	The Order for Relief	486
B.	Dismissal of an Involuntary Petition	490
Appendix A	Interview Questionnaire for the Debtor-Client	493
Appendix B	Interview Questionnaire for the Creditor-Client	538
Appendix C	Chapter 9--Debts of Municipalities	540
	Glossary	542
	Index	550

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