Law Notes

Reports to the Arkansas Bar by the Faculty of the University of Arkansas School of Law.

School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

Articles written by

Janet Flaccus

Professor Janet Flaccus has taught at the University of Arkansas School of Law for over 20 years. She has principally taught commercial law, including classes in bankruptcy, Chapter 11 business reorganizations, negotiable instruments, secured transactions, international and domestic sales and leasing, and contracts. She was editor of the print edition of Arkansas Law Notes for over 10 years and published almost 30 articles in Law Notes.

Defalcation by a Fiduciary – A New Standard

I am writing about a bankruptcy case from the Supreme Court. This changes cases from the Eighth Circuit and this is why I am discussing it. The case is Bullock v. BankChampaign.[1]. The issue concerns whether a debt is dischargeable when the debtor obtains a bankruptcy discharge. The phrase in the Bankruptcy Code is “defalcation by a fiduciary”. If the fiduciary has done this, the debt is not discharged. This issue does not come up frequently, but when it comes up, this is an important change.

The Supreme Court and Capital Gains Taxes in Bankruptcy and Credit Bidding in Cramdown Auctions

Two cases are mentioned here that came down in May 2012 from the Supreme Court. The first case, Hall, is important if you have a client with appreciated property who is in financial stress.[1] The second case, Radlax Gateway Hotel, is relevant if your client is a secured creditor who wishes to credit bid in a bankruptcy auction organized by the debtor.[2] Since you might represent the debtor or the creditor in bankruptcy both cases might be of interest. Hall is more likely to come into your life, perhaps. It will be discussed first.

Counterfeit Checks — What Rules Should Cover These?

Let’s start with the facts of a Seventh Circuit case, Wachovia Bank, N.A. v. Foster Bancshares, Inc. Last year I wrote to say we in Arkansas should not follow an Ohio case. Here I argue that we should not follow the reasoning of a Seventh Circuit case. Even worse, part of its reasoning is used in an earlier Texas case. I would think that Arkansas courts would follow cases from the Seventh Circuit and the Texas Court of Appeals. I hope they do not. What follows are some arguments you can use to try and convince a court not to follow either of these cases. I guess I have a bit of chutzpah!

Go Figure

The Supreme Court last January decided that a Chapter 13 debtor with above the median income could not deduct car expenses under the IRS rules when he did not owe any debt on the car. This case is important for us because the Court of Appeal for the Eighth Circuit had ruled the other way allowing the deduction.

Revisiting Bankruptcy Discharge of Student Debt by Declaration in a Chapter 13 Plan

In a 2009 CLE at the School of Law, I talked about the Espinosa case from the Ninth Circuit that allowed a Chapter 13 debtor to discharge his student-loan debt by declaring he had undue hardship in his Chapter 13 plan even when there was […]

Fair Debt Collection Practices Act, the Bona Fide Error Defense and Legal Judgment Errors

I could not let Law Notes get published without mentioning another Supreme Court case. This case,  Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA et al., examined the bone fide error defense in the Fair Debt Collection Practices Act (hereinafter FDCPA). Carlisle came down April […]

Courts Beware: Do Not Follow This Ohio Case

A case came down from the Ohio Supreme Court several years ago. I have not had time before now to discuss its possible impact on the law of Arkansas. Those of you who represent secured creditors and those who represent the state and its departments […]

Mediation of Divorce Disputes — Is This the Solution?

The concern about litigating child issues in a divorce action has been around for many years. The concern has led some to suggest and organize mediation programs. Many of these efforts were at the local level rather than state-wide action. Many of these mediation […]

Post Divorce Fighting – Can It Be Predicted? Divorce and Children at Risk

Few psychologists or psychiatrists would question the fact that many children of divorce suffer the effects of the loss of a parent. In the 2003 Law Notes, I wrote on this topic in more detail. The first four pages here are just a summary of […]

Single Asset Real Estate and the Bankruptcy Abuse and Consumer Protection Act

This article discusses the single-asset bankruptcy change made by the Bankruptcy Abuse and Consumer Protection Act. I mentioned this change at the 2006 Mid-Year Meetings in Memphis (at the end of my talk and not related to it) and have not seen any discussion […]

Bankruptcy Jurisdiction and the Supreme Court: Can a State be Sued for Money When It Violates a Federal Statute?

I was waiting to get a haircut this past January and was reading THE UNITED STATES LAW WEEK, one of my favorite publications. Reading a synopsis of the  Central Virginia Community College v. Katz, I suddenly jumped up and exclaimed that the Court had just […]

Bankruptcy Abuse Prevention and Consumer Protection Act: A Survey of Cases

Friday, June 2nd, I decided to do a Westlaw search picking up all of the reported cases citing this new bankruptcy law. I used the full name of the statutory change and would have missed any case using the acronym. The number of […]

Update on the Fair Debt Collection Practices Act and the Eighth Circuit Court of Appeals

I last wrote on the Fair Debt Collection Practices Act in 2001. In this article I am going to briefly discuss some of the Eighth Circuit cases that have come down since then. Since a number of cases have come […]

Thresholds to Filing in Chapter 7 – Means Testing and The Liability of Lawyers

As you now have heard, Congress finally passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. They had been threatening to pass similar bills since the end of the 1990s. I last spoke about these proposed bills in […]

Lawyers, You Are Now A Debt Relief Agency Under The New Bankruptcy Law

Just today, one week before Law Notes goes to press, I was asked whether lawyers who do bankruptcy work are debt relief agencies. My initial thought was no, these were bankruptcy petition preparers, not lawyers representing debtors in bankruptcy. The […]

Domestic Relations Lawyers Bankruptcy Reform and the Discharge of Marital-Settlement Promises

I was stuck waiting for an especially slow doctor recently, and was browsing through my redlined Code. As noted in my article on Means Testing, the nice thing about the red-lined Code is that it includes the additional statutory language […]

Domestic Relations Contempt Orders and the Bankruptcy Automatic Stay, Property of the Estate and Concurrent Jurisdiction

This article is written for the lawyer who does domestic relations work and not much, if any, bankruptcy work. Those of you who do a lot of bankruptcy work do not need to read this, unless you want a discussion […]

Joint and Several Liability and Partnership Law

I am enjoying being editor since I get to add my short thoughts to some of the articles. After reading Rob Leflar’s article discussing the Civil Justice Reform Act and the elimination of joint and several liability, I began thinking […]

Children and Divorce: A Bad Combination and How to Make it Better

When I started to teach Domestic Relations five years ago, I became interested in the effect of divorce on children, if any. As part of an independent study, a student, Diana Hewitt-Ladd, found a number of psychological and psychiatric studies […]