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Theresa J. Pulley Radwan, Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of Religious Liberties and Charitable Donation Protection Act, 19 Am. Bankr. Inst. L. Rev. 471 (2011)Clicking on the button will copy the full recommended citation.
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Theresa J. Pulley Radwan and Rebecca C. Morgan, The Elderly in Bankruptcy and Health Reform, 18 Geo. J.L. & Pub. Pol'y 1 (2010)Clicking on the button will copy the full recommended citation.
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Theresa J. Pulley Radwan and Rebecca C. Morgan, Today’s Elderly in Bankruptcy and Predictions for the Elderly of Tomorrow, 6 NAELA Journal 1 (2010)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner and Theresa J. Pulley Radwan, Corporate Shell Games: LLPs, LLCs, and Responsibility for Mitigation Sites, 31 Nat'l Wetlands Newsletter 6 (2009)Clicking on the button will copy the full recommended citation.
Determining who is legally responsible for a wetland mitigation site is not always a straight-forward process. A wetland regulator provided us a portion of a mitigation bank application that referred to a corporation and its officers, an LLP and two LLCs. This article explains what LLPs and LLCs are, and why many mitigation bank operators opt for these business forms. We then walk through the mitigation bank document itself to try to unravel which entity actually would be responsible for the mitigation bank site. The article concludes with recommendations that wetland regulators should consider when evaluating mitigation proposals involving LLPs and LLCs, whether affiliated with a mitigation bank or not. While there is no particular reason to be worried about LLPs and LLCs as compared to traditional corporations, regulators should consider requiring notice for any changes in the ownership and management of these entities. Regulators should also ensure that financial assurances such as letters of credit and performance bonds expressly cover the entity (whether LLP, LLC, or another form) responsible for the mitigation site.
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Theresa J. Pulley Radwan, Keeping the Faith: The Rights of Parishioners in Church Reorganizations, 82 Wash. L. Rev. 75 (2007)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner and Theresa J. Pulley Radwan, What Happens When a Wetland Mitigation Bank Goes Bankrupt, 35 Envtl. L. Reporter 10590 (2005)Clicking on the button will copy the full recommended citation.
The article addresses how bankruptcy law can affect the rights and obligations of mitigation bankers and government agencies. The article further examines two ongoing bankruptcy actions involving mitigation banks and offers suggestions for adoption by regulatory agencies to protect against the consequences of mitigation banks going bankrupt.
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Theresa J. Pulley Radwan, No Harm, No Foul: Calculation of Nondischargeable Damages in Transactions Tainted by Fraud, 58 SMU L. Rev. 1385 (2005)Clicking on the button will copy the full recommended citation.
Section 523(a)(2)(B) of the United States Bankruptcy Code provides that a debt incurred as a result of written fraud cannot be discharged by a bankruptcy proceeding. Though section 523(a)(2)(B) provides elements of this nondischargeable fraud, one common element of fraud is conspicuously missing from this list-damages incurred as a result of the fraud. Whether damages must be shown in order to prevent discharge of a written fraud debt has been debated by courts under both the Bankruptcy Act and Code. However, despite numerous revisions to the bankruptcy laws, the need (or lack thereof) for damages remains unclear. In this article, the author suggests that preventing a discharge on the basis of fraud without requiring damages causes a windfall to the "defrauded" creditor. The author also suggests a mechanism for calculating such damages to ensure an equitable balance between the debtor and creditor in a bankruptcy proceeding, utilizing a tort-based calculation of damages.
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Theresa J. Pulley Radwan, Determining Congressional Intent Regarding Dischargeability of Imputed Fraud Debts in Bankruptcy, 54 Mercer L. Rev. 987 (2003)Clicking on the button will copy the full recommended citation.
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Theresa J. Pulley Radwan, Domino Effect: The Continued Existence of Liability for Fraud in Bankruptcy Despite Good-Faith Settlements by the Honestly Unfortunate Settlor, 53 Cath. U. L. Rev. 81 (2003)Clicking on the button will copy the full recommended citation.
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Theresa J. Pulley Radwan, Trustees in Trouble: Holding Bankruptcy Trustees Personally Liable for Professional Negligence, 35 Conn. L. Rev. 525 (2003)Clicking on the button will copy the full recommended citation.
Professional negligence is a fact of life. Insurance companies know this. Professionals know this. The general public knows this. However, not all professionals are responsible for their own negligence. For some professionals, negligence liability may be curbed for policy reasons. However, this article argues that no such policy reasons exist for limiting the personal liability of a negligent bankruptcy trustee.
Courts treat negligent trustees in one of three ways. The first, and most lenient standard for trustees, is that negligence, whether it be "mere negligence" or "gross negligence" will not subject a trustee to liability. In circuits following this standard, a trustee must take an intentional action in order to be personally liable for that action. This standard evolved from decisions in non-bankruptcy cases regarding immunity for judges and other court-appointed employees.
The second possible standard, which has gained popularity as a "middle-ground" alternative, allows trustees to be liable for gross negligence but not for mere negligence. In so doing, these courts have tried to hold a trustee liable for something less than his or her intentional actions without going so far as to hold a trustee liable for simple, garden-variety negligence.
Finally, some courts hold trustees personally liable for any type of negligence, as well as intentional actions. The rationale for this liability stems from the trustee's role as an attorney, subject to standards of reasonableness in light of the circumstances. This article argues that such a standard should be utilized by all courts in order to promote a fair distribution of bankruptcy assets among the creditors and to comply with public expectations of a trustee's performance. Although ideas of immunity evolve from legal ideas, these ideas are outdated and inapplicable in the context of modern bankruptcy cases. And, while gross negligence offers a middle ground, this article argues that defining professional negligence in terms of a similarly situated bankruptcy trustee obviates the need for such a middle ground.