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Unpublished Paper
The Uncertainty of “True Sale” Analysis in Originator Bankruptcy
(2012)
  • Stephen P Hoffman
Abstract
While much of law is complex or unclear, it is unusual for a judge to comment that a legal doctrine is so unsettled that courts “could flip a coin” to decide an issue. Unfortunately for practitioners, determining what constitutes a “true sale” for bankruptcy purposes is such an issue. Add to this the recent novel and innovative processes of structured finance and asset-backed securitization, and you have the stuff of law students’—and corporate counsels’—nightmares. As a result, courts and legislatures need to provide clarity in this area so that originators can safely structure investments and transactions, not only for the benefit of originators and investors, but also for the benefit of bankruptcy courts forced to analyze these investments and transactions after the fact when the originator becomes insolvent.
Keywords
  • securitization,
  • bankruptcy,
  • originator,
  • true sale,
  • structured finance,
  • chapter 11,
  • substantive consolidation,
  • COMI,
  • center of main interests,
  • UNCITRAL
Publication Date
2012
Citation Information
Stephen P Hoffman. "The Uncertainty of “True Sale” Analysis in Originator Bankruptcy" (2012)
Available at: http://works.bepress.com/stephen_hoffman/6/