January/February

In summer 2015, the U.S. Supreme Court handed down five opinions in six bankruptcy cases. These cases, which the Court considered for more than a year, resolved various bankruptcy issues ranging from technical to fundamental.

In summer 2015, the U.S. Supreme Court handed down five opinions in six bankruptcy cases. These cases, which the Court considered for more than a year, resolved various bankruptcy issues ranging from technical to fundamental.

The Bankruptcy Code offers a debtor myriad tools to facilitate an effective reorganization. Two of the most fundamental devices include the permissive revaluation of executory contracts and unexpired leases under § 365 and the reconciliation of claims against the estate under § 502.

The Ninth Circuit in Stahl v. Simon (In re Adamson Apparel Inc.) addressed an issue that has divided bankruptcy courts and puts a different spin on Levitt v. Ingersoll Rand Financial. (In re Deprizio).2 In Deprizio, the Seventh Circuit held that a trustee could avoid, as preferential, payments made to a lender during the extended one year look-back period that, by definition, benefited a guarantor by reducing his guarantee exposure dollar for dollar.

It is common knowledge that filing a bankruptcy petition affects the rights of creditors to receive payment. A creditor may be entitled to anything from full payment to pennies on the dollar, depending on the creditor’s position in the U.S. Bankruptcy Code’s distribution scheme and the value of assets in the estate. A creditor’s underlying right to payment, however, is not determined by the Bankruptcy Code but by state law.

In every Chapter 7 bankruptcy case—whether the filing is by an individual, a partnership, or a corporate entity—a trustee is assigned to serve as the creditors’ representative and is responsible for locating and liquidating assets for the benefit of creditors.

How does an attorney navigate the legal and ethical obligations attendant with representing an individual client in a nonbankruptcy matter when the client has also sought relief in bankruptcy? The nonbankruptcy matter may involve representing an individual client in a tort case pending in state or federal court. The case might be a personal injury suit for a slip-and-fall accident or an employment discrimination lawsuit.

When the Supreme Court issued its seminal decision in Stern v. Marshall, bankruptcy practitioners, trustees, judges, and many others, justifiably were concerned that, in the words of Justice Breyer, “Congress’ constitutionally based effort to create an efficient, effective federal bankruptcy system” could be jeopardized.

In summer 2015, the Supreme Court delivered its opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that: (1) the right to marry by persons of the same sex is a fundamental right in the liberty of the person and, thus, under the constitutional concepts of equal protection and due process couples of the same sex may not be deprived of that right and liberty; and (2) states must recognize lawful same-sex marriages performed in other states. This decision was a landmark and will affect much of our society.