Introduction to Bankruptcy Law / Edition 5

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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.
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Product Details

  • ISBN-13: 9781418040963
  • Publisher: Cengage Learning
  • Publication date: 4/12/2006
  • Series: West Legal Studies
  • Edition description: REV
  • Edition number: 5
  • Pages: 672
  • Sales rank: 827,720
  • Product dimensions: 8.40 (w) x 10.90 (h) x 1.00 (d)

Meet 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.

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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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