Litigating a bankruptcy appeal can be a very rewarding experience but there are some special considerations that attorneys should keep in mind. The following are some ways to avoid potential problems and increase your likelihood of success on appeal. Part I of this article concerns when and how you should take a bankruptcy appeal. Part II considers ways to improve the quality of your written and oral advocacy.
Ponzi schemes often involve numerous entities, all of which are owned or controlled by the same person. When the entities are forced into bankruptcy, bankruptcy trustees frequently find that there are a multitude of transfers between the entities and their lenders, service providers and others. Trustees often file adversary proceedings in Ponzi scheme cases alleging that the lenders, service providers and others were recipients of constructive fraudulent transfers because one debtor paid the debt of another prior to bankruptcy. An important issue is whether such claims survive following the substantive consolidation of the debtors’ estates.
It is well settled based on U.S. Supreme Court decisions applying the Federal Arbitration Act (FAA) that whether arbitration clauses will be enforceable concerning bankruptcy claims will depend on whether the Bankruptcy Code’s underlying policies conflict with the FAA. Many courts have held that the key inquiry in deciding this issue is whether the claim is core or noncore and whether the bankruptcy court may constitutionally enter a final judgment on the claim.
ABI now has Congress' 2012 edition of the Federal Rules of Bankruptcy Procedure and the 2012 edition of the U.S. Bankruptcy Code in the Bookstore. Both "Mini-" editions are currently in stock and will ship directly to your home or office. ABIWorld login is required to receive the membership rate, and all members are eligible for free shipping. Click here to purchase the Mini-Code 2012 and the Mini-Rules 2012.