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Introduction to Bankruptcy Law,9781418040963

Introduction to Bankruptcy Law

by
Edition:
5th
ISBN13:

9781418040963

ISBN10:
1418040967
Media:
Paperback
Pub. Date:
4/12/2006
Publisher(s):
Cengage Learning
List Price: $248.95

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Summary

Introduction to Bankruptcy Law, fifth edition, is a perfect reference for practicing paralegals and attorneys as well as for paralegal courses in bankruptcy law. This new edition corresponds to the changes in bankruptcy law after enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Material in this edition includes changes in the bankruptcy code and practice, new and revised official and procedural bankruptcy forms, revised bankruptcy rules, and bankruptcy cases that detail the case from initiation of the attorney/client relationship through the closing of the case. The book also includes new flow charts for each type of bankruptcy filing that emphasize the two tracks of bankruptcy; the administration of the bankruptcy estate and the debtor s desire to receive a discharge from as many debts as possible. Other key features are a brief history of bankruptcy law, research aids, alternatives to bankruptcy, a discussion of the role of the various parties involved in the bankruptcy process, and an overview concerning eligibility and the selection of the appropriate bankruptcy chapter under which the case should be filed. The book retains its step-by-step approach to each type of bankruptcy filing so the bankruptcy process is clear and understandable to the reader. Greater emphasis is placed on the paralegal s role in the fact gathering process and the interface with clients, and the concept-example-problem format of provides the opportunity for lively discussion.

Table of Contents

Table of Exhibits
xviii
Table of Cases
xx
Table of Statutes and Rules
xxi
Preface xxix
The Evolution of Bankruptcy Law
1(11)
Section 1 Brief History of Modern Bankruptcy Law
1(7)
The Appearance of Bankruptcy in Early English Law
1(1)
Treatment of Bankruptcy in the United States Constitution
2(1)
Early American Bankruptcy Statutes
2(1)
The Bankruptcy Act of 1800
2(1)
The Bankruptcy Act of 1841
3(1)
The Bankruptcy Act of 1867
3(1)
The Bankruptcy Act of 1898
4(1)
The Bankruptcy Reform Act of 1978
4(2)
Amendments to the Bankruptcy Reform Act of 1978
6(2)
Section 2 The Dual Nature of Bankruptcy as a Remedy for Both Creditors and Debtors
8(4)
Bankruptcy Law and Where to Find It
12(25)
Section 1 The Bankruptcy Code
15(10)
The Universal Chapters
17(1)
Chapter 1---General Provisions
17(3)
Chapter 3---Case Administration
20(1)
Chapter 5---Creditors, Debtor, and the Estate
21(1)
The Operative Chapters
21(1)
Chapter 7---Liquidation
22(1)
Chapter 9---Adjustment of Debts of a Municipality
22(1)
Chapter 11---Reorganization
22(1)
Chapter 12---Adjustment of Debts of a Family Farmer or Fisherman with Regular Annual Income
23(1)
Chapter 13---Adjustment of Debts of an Individual with Regular Income
24(1)
Section 2 The Federal Rules of Bankruptcy Procedure and Official Forms
25(2)
The Federal Rules of Bankruptcy Procedure and Official Forms
25(2)
The Local Rules
27(1)
District Court Rules
27(1)
Bankruptcy Court Rules
27(1)
Section 3 Bankruptcy Law Cases
27(5)
Section 4 Secondary Authority
32(5)
Legislative History
32(1)
Digests
32(1)
Loose-Leaf Services
32(1)
Treatises
33(1)
Legal Periodicals
33(1)
American Law Reports
34(1)
Legal Encyclopedias
35(1)
Internet Resources
35(2)
The Cast of Characters and Their Roles in the Bankruptcy Process
37(28)
Section 1 The Debtor, the Debtor's Attorney, the Paralegal, and the Debt Relief Agency
38(6)
The Debtor
38(1)
The Debtor's Attorney
39(1)
The Paralegal
40(2)
The Debt Relief Agency
42(2)
Section 2 The Bankruptcy Petition Preparer
44(1)
Section 3 The Creditors and Other Parties in Interest
45(8)
Creditors
45(1)
Creditors Holding Secured Claims
45(3)
Creditors Holding Unsecured Priority Claims
48(2)
Creditors Holding Unsecured Nonpriority Claims
50(1)
Other Parties in Interest
50(1)
Equity Security Holders
50(1)
Indenture Trustees
51(1)
Statutory Lienholders
51(1)
Lessors
51(1)
Governmental Regulatory Authorities
52(1)
Section 4 The Administrative Office of the United States Courts
53(1)
Section 5 The Bankruptcy Judge and Staff
53(2)
The Bankruptcy Judge
53(1)
The Judge's Law Clerk, Judicial Assistant, and Courtroom Deputy
54(1)
The Court Reporter
55(1)
Section 6 The Office of the Clerk of the Bankruptcy Court
55(2)
The Bankruptcy Court Clerk
55(1)
The Deputy Clerks
56(1)
Section 7 The United States Trustees, Private Trustees, and Examiners
57(8)
The United States Trustees
57(1)
Private Trustees
58(1)
The Trustee Panel
59(2)
Standing Trustees
61(2)
Other Trustees
63(1)
Paralegals
63(1)
Examiners
64(1)
Information Gathering, Analysis, Counseling, and Drafting
65(42)
Section 1 The Debtor-Client
65(30)
Information Gathering
68(14)
Analysis: Nonbankruptcy or Bankruptcy
82(1)
Alternatives to a Bankruptcy Filing
83(4)
Bankruptcy Choices
87(7)
Counseling
94(1)
Drafting of Bankruptcy Forms
94(1)
Section 2 The Creditor-Client
95(10)
The Causes of the Creditor's Distress
95(1)
Information Gathering
95(1)
Analysis: If the Debtor Has Filed Bankruptcy
96(1)
If the Debtor Has Filed a Chapter 7 Case
96(1)
If the Debtor Has Filed a Chapter 11 Case
97(1)
If the Debtor Has Filed a Chapter 12 Case
98(1)
If the Debtor Has Filed a Chapter 13 Case
98(1)
Analysis: Alternatives If the Debtor Has Not Filed Bankruptcy
99(1)
Private Alternative
99(1)
State Court Alternatives
99(4)
Involuntary Bankruptcy Choices
103(1)
Counseling
104(1)
Counseling the Creditor-Client
104(1)
Drafting Bankruptcy Forms
104(1)
Section 3 The Debtor-Client in an Involuntary Bankruptcy
105(2)
Information Gathering
105(1)
Analysis
105(1)
Counseling
106(1)
The Voluntary Chapter 7 Bankruptcy (Liquidation)
107(240)
Section 1 The Initiation of a Chapter 7 Case
115(6)
Section 2 The Filing of the Petition
121(108)
The Debtor's Petition (Official Form No. B1)
125(9)
The Filing Fee
134(8)
The Clerk's Notice
142(1)
Corporate Resolution Authorizing Filing of Chapter 7
142(1)
Disclosure of Attorney's Compensation Statement
142(7)
The List of Creditors
149(1)
Schedules (Official Form No. B6)
149(2)
Schedule A: Real Property
151(3)
Schedule B: Personal Property
154(9)
Schedule C: Property Claimed as Exempt
163(2)
Schedule D: Creditors Holding Secured Claims
165(6)
Schedule E: Creditors Holding Unsecured Priority Claims
171(6)
Schedule F: Creditors Holding Unsecured Nonpriority Claims
177(4)
Schedule G: Executory Contracts and Unexpired Leases
181(2)
Schedule H: Codebtors
183(2)
Schedule I: Current Income of Individual Debtor(s)
185(3)
Schedule J: Current Expenditures of Individual Debtor(s)
188(4)
The Schedule of Current Income and Current Expenditures of a Partnership or Corporation
192(3)
Declaration Concerning Debtor's Schedules
195(2)
Statement of Current Monthly Income and Means Test Calculation
197(1)
Statement of Financial Affairs
197(28)
Statement of Intention If the Debtor Is an Individual with Consumer Debts
225(2)
Debtor's Duty to Supplement the Schedules
227(1)
Debtor's Right to Amend the Petition, Lists, Schedules, and Statements
228(1)
Section 3 The Significance of Filing a Petition
229(23)
The Order for Relief
229(1)
The Estate Is Created
229(1)
Property of the Estate
229(6)
Location of Property
235(1)
Property Acquired after Filing the Petition
236(1)
Contractual Provisions Limiting Transferability of Property
237(1)
Possession and Control of Property of the Estate
238(1)
Exemptions
238(1)
Exemptions under the Bankruptcy Code: State vs. Federal Exemptions
238(6)
Converting Nonexempt Property to Exempt Property
244(1)
Waiver of Exemptions and Waiver of Avoidance Powers
244(1)
The Automatic Stay
245(7)
Section 4 The Appointment and Powers of an Interim Trustee
252(17)
Abandon Property of the Estate
253(1)
Abandonment by the Trustee
253(1)
A Party in Interest Can Force the Trustee to Abandon
254(1)
Abandoned by Being Scheduled but Not Administered
254(1)
Assume or Reject Executory Contracts
254(1)
Avoiding Transfers
255(1)
Avoiding Unperfected Security Interests
255(4)
Avoiding Claims That an Actual Creditor Can Avoid under State Law
259(2)
Avoiding Statutory Liens That Arise on the Debtor's Bankruptcy or Insolvency
261(1)
Avoiding Prepetition Transfers of Property of the Estate to Creditors That Are Voidable Preferences
261(4)
Avoiding Prepetition Transfers of Property of the Estate That Are Fraudulent under the Bankruptcy Code
265(3)
Avoiding Postpetition Transfers of Property of the Estate Unless They Are Authorized by the Bankruptcy Code or by the Bankruptcy Court
268(1)
Section 5 Proofs of Claim and Proofs of Interest
269(1)
Creditors' and Indenture Trustees' Proofs of Claim
269(1)
Equity Security Holders' Proofs of Interest
270(1)
Section 6 Motions and Complaints after the Order for Relief
270(31)
Motions
273(1)
Motions by the Debtor
274(4)
Motions by a Party in Interest
278(10)
Motion by the United States Trustee to Dismiss the Case
288(3)
Motion by the Court to Dismiss the Case
291(1)
Complaints
292(1)
Complaints by a Creditor
292(7)
Complaint by the Trustee or the United States Trustee Objecting to Debtor's Discharge
299(1)
Complaint by the Trustee to Avoid Prepetition and Postpetition Transfers
299(1)
Complaint by the Debtor to Determine the Dischargeability of a Debt
299(2)
Section 7 Order and Notice of Chapter 7 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates
301(1)
Section 8 Objections by a Party in Interest to Debtor's Claim of Exemptions
301(7)
Section 9 Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders
308(1)
The Meeting of Creditors
308(1)
Examination of the Debtor
308(1)
Election of a Trustee
309(1)
The Meeting of Equity Security Holders
309(1)
Section 10 Redemption, Discharge and Reaffirmation
309(16)
Redemption
309(1)
Discharge and Reaffirmation
310(15)
Revocation of Discharge
325(1)
Section 11 Distribution of the Property of the Estate
325(4)
Priority Claims
325(1)
Domestic Support Obligations
326(1)
Administrative Expenses
326(1)
Extension of Credit in an Involuntary Case
326(1)
Wages, Salaries, or Commissions
326(1)
Contributions to Employee Benefit Plans
327(1)
Farmer and Fishermen Claims
327(1)
Consumer Deposits
327(1)
Certain Governmental Tax Claims
327(1)
Insured Depository Institution Claims
328(1)
Drunk Driving Claims
328(1)
Nonpriority Claims
328(1)
Timely Filed Unsubordinated General Unsecured Claims and Tardily Filed Unsecured Claims Where Creditor Did Not Have Notice but Proof of Claim Filed in Time to Make Payment
328(1)
Other Tradily Filed Unsecured Claims
328(1)
Penalty-Type Claims
328(1)
Interest on Priority and Nonpriority Prepetition Claims
328(1)
Debtor
329(1)
Section 12 Closing the Case
329(14)
Trustee's Final Report and Proposed Distribution
329(1)
Trustee's Final Account after Distribution and Request for Discharge
329(14)
Closing the Case
343(1)
Section 13 After the Case Is Closed
343(4)
Amending the Case without Reopening the Case
343(1)
Reopening a Closed Case
344(3)
The Chapter 13 Bankruptcy (Adjustment of Debts of an Individual with Regular Income)
347(59)
Section 1 The Initiation of a Chapter 13 Case
354(8)
Section 2 The Chapter 13 Plan
362(18)
Contents of a Chapter 13 Plan
362(1)
Mandatory Provisions
363(1)
Permissive Provisions
363(1)
A Sample Chapter 13 Plan
363(16)
The Debtor's Payments under the Plan
379(1)
Modification of the Plan before Confirmation
380(1)
Section 3 The Filing of the Petition
380(1)
Section 4 The Significance of Filing a Petition
381(2)
Possession and Control of Property of the Estate
382(1)
Operation of the Debtor's Business
383(1)
Exemptions
383(1)
Section 5 Appointment and Duties of a Chapter 13 Trustee
383(1)
Section 6 Motions and Complaints after the Order for Relief
384(4)
Motions
385(1)
Complaints
386(2)
Section 7 The Clerk's Notice
388(1)
Section 8 Meeting of Creditors (The Section 341 Meeting)
388(3)
Section 9 Hearing on Confirmation of the Plan
391(6)
Section 10 Trustee's Distribution of Payments under the Plan
397(1)
Section 11 Modification of the Plan after Confirmation
397(6)
Section 12 Revocation of Order of Confirmation
403(1)
Section 13 Discharge
403(2)
Section 14 Revocation of the Discharge
405(1)
Section 15 Closing the Case and Proceedings after the Case Is Closed
405(1)
The Chapter 12 Bankruptcy (Adjustment of Debts of a Family Farmer or Family Fisherman with Regular Annual Income)
406(45)
Section 1 The Initiation of a Chapter 12 Case
411(8)
Section 2 The Chapter 12 Plan
419(8)
Contents of a Chapter 12 Plan
419(1)
Mandatory Provisions
420(1)
Permissive Provisions
420(1)
A Sample Chapter 12 Plan
421(5)
The Debtor's Payments under the Plan
426(1)
Modification of the Plan before Confirmation
426(1)
Section 3 The Filing of the Petition
427(1)
Section 4 The Significance of Filing a Petition
428(4)
Possession and Control of Property of the Estate: The Debtor in Possession
430(1)
Operation of the Debtor's Business
431(1)
Exemptions
431(1)
Section 5 Appointment and Duties of a Chapter 12 Trustee
432(1)
Section 6 Motions and Complaints after the Order for Relief
433(3)
Motions
433(3)
Complaints
436(1)
Section 7 The Clerk's Notice
436(1)
Section 8 Meeting of Creditors (The Section 341 Meeting)
436(5)
Section 9 Hearing on Confirmation of the Plan
441(4)
Section 10 Trustee's Distribution of Payments under the Plan
445(1)
Section 11 Modification of the Plan after Confirmation
446(2)
Section 12 Revocation of Order of Confirmation Conversion, or Dismissal
448(1)
Section 13 Discharge
448(1)
Section 14 Revocation of the Discharge
449(1)
Section 15 Closing the Case and Proceedings after the Case Is Closed
449(2)
The Voluntary Chapter 11 Bankruptcy (Reorganization)
451(77)
Section 1 The Initiation of a Chapter 11 Case
453(6)
Section 2 The Chapter 11 Petition and the Significance of Filing a Chapter 11 Petition
459(13)
The Filing of the Chapter 11 Petition
459(6)
The Significance of Filing a Petition
465(1)
Possession and Control of Property of the Estate
465(2)
Operation of the Debtor's Business
467(1)
Use of Cash Collateral
468(1)
Adequate Protection
468(1)
Employment of Professionals
468(1)
Obtaining Credit
469(1)
Utility Services
469(1)
Shedding Burdensome Collective Bargaining Contracts
470(1)
Dealing with Pending and Future Litigation
470(1)
Special Provisions for a Small Business Debtor
471(1)
Evidence of Debtor in Possession (DIP) Status
472(1)
Exemptions
472(1)
Section 3 The Chapter 11 Plan
472(16)
Strategies Utilized in Reorganization Plans
474(5)
Contents of a Chapter 11 Plan
479(1)
Mandatory Provisions
479(2)
Permissive Provisions
481(1)
A Sample Chapter 11 Plan
482(1)
Modification of a Chapter 11 Plan
482(6)
Chapter 11 Plan Filed by Parties Other Than the Debtor
488(1)
Section 4 A Disclosure Statement or Evidence Showing Compliance with 11 U.S.C.A. § 1126(b)
488(13)
Section 5 Order and Notice of Chapter 11 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates
501(1)
Section 6 Motions and Complaints
501(5)
Motions
501(5)
Complaints
506(1)
Section 7 Appointment of a Committee of Unsecured Creditors and a Committee of Equity Security Holders
506(1)
Section 8 Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders
507(1)
Section 9 Hearing on the Disclosure Statement
507(3)
Section 10 Hearing on Confirmation of the Plan
510(13)
Section 11 Effect of Confirmation of the Plan
523(1)
Section 12 Distribution under the Plan and Reporting by Debtor in Possession or Chapter 11 Trustee
523(2)
Section 13 Revocation of an Order of Confirmation
525(1)
Section 14 Final Report and Final Decree
525(3)
Selecting the Appropriate Type of Bankruptcy Filing
528(16)
Section 1 Eligibility
528(6)
Section 2 Selecting the Chapter If the Debtor Is Eligible under Multiple Chapters
534(10)
The Business Debtor
534(1)
Choosing to Liquidate under Chapter 7 or Reorganize under Chapter 11
534(1)
Choosing to Liquidate under Chapter 7 or Liquidate under Chapter 11
535(1)
Choosing to Reorganize under Chapter 11 or Adjust Debt under Chapter 12 or 13
536(1)
The Nonbusiness Debtor
537(1)
Choosing to Liquidate under Chapter 7 or Adjust Debt under Chapter 13
537(5)
Choosing to Liquidate under Chapter 7 or Reorganize under Chapter 11
542(1)
Choosing to Reorganize under Chapter 11 or Adjust Debt under Chapter 13
542(2)
The Involuntary Bankruptcy: Chapter 7 or Chapter 11
544(19)
Section 1 Limitations on Filing an Involuntary Petition
545(3)
Debtors Who May Be Subject to an Involuntary Petition
545(1)
Requirements of a Petitioning Creditor
545(3)
Section 2 Flow Chart for the Involuntary Petitions
548(1)
Section 3 The Filing of the Creditors' Petition
548(1)
Section 4 The Significance of Filing a Petition
548(8)
The Order for Relief, the Bankruptcy Estate, and the Automatic Stay
548(3)
Appointment of a Trustee
551(5)
Gap Period Creditors
556(1)
Section 5 The Debtor's Answer
556(1)
Section 6 Hearing and Disposition of an Involuntary Petition
557(6)
The Order for Relief
557(2)
Dismissal of an Involuntary Petition
559(4)
Appendix A Interview Questionnaire for the Debtor-Client 563(43)
Appendix B Interview Questionnaire for the Creditor-Client 606(2)
Appendix C Chapter 9---Debts of Municipalities 608(1)
Glossary 609(8)
Index 617


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