GCK On Law
Conflict in Applying Section 547(c)(2)(A) Ordinary Course Defense to Limited Prepetition Course of Dealing
Section 547(c)(2)(B) of the Bankruptcy Code was the former subjective component of the three-pronged test set forth in §547(c)(2) of the Bankruptcy Code, and involves the question of whether the transfer was “made in the ordinary course of business or financial...
Substantive Consolidation with a Nondebtor and the Limits of Section 105(a)
The courts are divided on whether substantive consolidation can occur with a nondebtor. 2 Collier on Bankruptcy ¶105.09[1][c] (15th ed.rev.2005). Some courts have allowed such consolidation. See, e.g., Fish v. East, 114 F.2d 177 (10th Cir.1940) (analyzing substantive...
Enforceability of Prepetition Waivers of the Automatic Stay
Courts have been split on whether a pre-petition agreement whereby the debtor agrees to waive the protection of the automatic stay under Section 362 of the Bankruptcy Code (“Code”) is enforceable. There are two general approaches: some courts have found that...
Dismissal under Section 1112(b) for Bad Faith Filing
Pursuant to Section 1112(b) of the Bankruptcy Code, a chapter 11 petition may be dismissed for cause if it appears that the petition was not filed in good faith. Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994). A chapter 11 petition is not filed in...
Appellate Jurisdiction Asymmetry
Bankruptcy Rule 8002(a)(1) requires bankruptcy appeals be filed within 14 days of the entry of an adverse order. Thus, when faced with an adverse ruling, a would-be appellant must quickly consider the substantive merits and financial burden of an appeal. Part of...