Avoidance of Lease Terminations as Fraudulent Transfers
Robert E. Goodman, Jr., 43(3): 807–32 (May 1988)
Cases permitting the avoidance of lease terminations as fraudulent transfers raise troubling issues for title companies and purchasers, lessors, and mortgagees of real property. This Article analyzes the pertinent decisions and suggests means to minimize the risks of avoidance.
Section 363 Sales Free and Clear of Interests: Why the Seventh Circuit Erred in Precision Industries v. Qualitech Steel
Michael St. Patrick Baxter, 59(2): 475–501 (Feb. 2004)
Rarely does a bankruptcy case have the potential to profoundly impact the non-bankruptcy world. In Precision Industries v. Qualitech Steel, the Seventh Circuit allowed a debtor to sell land free and clear of an unexpired ground lease in apparent disregard of the lessee's rights to retain possession of the leased premises. This case will have profound implications on bankruptcy sales, real estate leasing, and real estate lease financing. This Article examines the decision in Precision Industries and its effect on the rights afforded to lessees by § 365(h) of the Bankruptcy Code. The author contends that the case is wrongly decided. The author discusses some of the practical problems created by Precision Industries and suggests some strategies that can be employed to avoid its perils.
Seeking a Meaning for "Meaningful Residual Value" and the Reality of "Economic Realities"—An Alternative Roadmap for Distinguishing True Leases from Security Interests
Robert W. Ihne, 62(4): 1439–1466 (August 2007)
This article examines (i) the statutory criteria provided in the Uniform Commercial Code for distinguishing between true leases of goods and security interests in such goods, and (ii) various concepts developed by courts and commentators for analyzing fact patterns not covered by the statute. The article concludes that each of these concepts, while helpful to some extent, falls short in certain respects. Employing some of the more helpful theoretical underpinnings of the statute and these concepts, the article proposes an alternative framework of analysis focusing on whether or not the lessee can be expected to exhaust the economic value of the goods.