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ABI Journal

Bankruptcy Litigation

Hiring an Expert Witness in Bankruptcy Preference Actions, Now and Tomorrow

With commercial bankruptcy filings presently at an all-time low and a steady decrease in filings occurring each year going back to 2003, it has become a much longer and drawn-out process to resolve a bankruptcy preference action.

Revoking the Debtor’s Discharge under §727(d)(3)

A recent opinion from the U.S. District Court for the Eastern District of Virginia highlights the importance of counseling clients about their duties as debtors and clarifying for them what they can and cannot do with property of the estate, even after the discharge is entered. In Jordan v.

Cases Address the Standard for Confirmation Appeals in the Second Circuit

During one week in May, two appellate decisions came out of the district court of the Southern District of New York relating to mootness of appeals of confirmation orders. While the results of the two cases were opposite, the rationale was consistent.

Gone Fishin’: Addressing the “Pending Proceeding” Limit on Examinations under Federal Rule of Bankruptcy Procedure 2004

Rarely is an official rule of court publicly acknowledged as a license for a “fishing expedition,” but that is the characterization often conferred by the courts on Fed. R. Bankr. P. 2004. E.g., In re French, 145 B.R. 991, 992 (Bankr. D. S.D. 1992).

Direct Appeals in Bankruptcy to the Circuit Courts of Appeals

Over the past year, courts have begun addressing issues raised by revised 28 U.S.C. §158(d) (§158(d)), and the Interim Bankruptcy Rules (8001 and 8003) adopted to implement them. Section 158(d) provides, under certain circumstances, for direct appeals from the bankruptcy courts to the circuit courts of appeal.

Industrial Clearinghouse Inc. v. Mims: Direct Removal from State Court to Bankruptcy Court

In Industrial Clearinghouse Inc. v. Mims (In re Coastal Plains Inc.), 338 B.R. 703 (N.D. Texas 2006), the U.S. District Court for the Northern District of Texas took the majority view of 28 U.S.C. §1452, holding that when that section refers to removal to a “district court,” it includes bankruptcy courts in that group.

The Enforceability of Arbitration Clauses in Core Bankruptcy Matters

The Second and Third Circuits recently issued opinions that support the enforceability of otherwise valid arbitration clauses in core bankruptcy matters. The opinions also highlight a circuit split regarding the appropriate legal standard to be used to determine whether bankruptcy courts have discretion to refuse to enforce arbitration clauses in core matters.

Summaries – Understand the Types, Know the Rules

In ordinary litigation proceedings, lawyers often introduce summaries for a variety of purposes, either evidentiary, demonstrative or both.

So Who’s An Expert Anyway?

Imagine yourself representing former insiders of a chapter 11 debtor in an adversary proceeding charging your clients with breach of fiduciary duties.