Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Collection: High-Income, Good Faith, and the Dismissal of Non-Consumer Bankruptcy Cases under Chapter 7
With the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ('BAPCPA'), many creditors expected to have additional grounds to obtain dismissals of Chapter 7 petitions. BAPCPA incorporated an income/expense test ('Means Test') into '707(b) of the Bankruptcy Code, wherein a bankruptcy court can dismiss a Chapter 7 petition for 'abuse.' Under the Means Test laid out in '707(b), 'abuse' is presumed if the debtor's 'current monthly income,' after subtracting for certain specified monthly expenses and multiplying by 60, is either: 1) equal to or greater than 25% of the debtor's nonpriority unsecured claims in the case, or $6,000, whichever is greater; or 2) $10,000, unless special circumstances exist that rebut the presumption of abuse.
Among other provisions, '707(b) authorizes a bankruptcy court to dismiss a Chapter 7 petition filed by an individual debtor, whose debts are primarily consumer debts, for 'abuse,' while '707(a) allows bankruptcy courts to dismiss a Chapter 7 petition for 'cause' and provides three nonexclusive examples of 'cause' warranting dismissal.
Section 707(a) does not explicitly confer a Means Test or list 'bad faith' as grounds for dismissal. Prior to the enactment of BAPCPA, many courts had interpreted '707(a) to allow an inquiry into the good faith of non-consumer debtors, which often took into account the debtor's income and lavish lifestyle, if any, and his corresponding ability to repay his debts as consideration factors. See, e.g., In re Merritt, 211 F.3d 1269, 2000 WL 420681, at *2 (6th Cir. 2000); In re Tamecki, 229 F.3d 205, 207 (3d Cir. 2000); In re Zick, 931 F.2d 1124, 1126 (6th Cir. 1991); In re Sekendur, 334 B.R. 609, 618-19 (Bankr. N.D. Ill. 2005); In re Jones, 335 B.R. 203, 213-14 (Bankr. M.D. Fla. 2005); In re Keobapha, 279 B.R. 49, 51-52 (Bankr. D. Conn. 2002); but see, In re Padilla, 222 F.3d 1184, 1193 (9th Cir. 2000) (bad faith can constitute 'cause' for dismissal in Chapter 11 or Chapter 13 cases, but not in Chapter 7 case under '707(a)) and In re Huckfeldt, 39 F.3d 829, 832 (8th Cir. 1994) (a bankruptcy judge should not punish a bad faith litigant under '707(a)).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.