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Bankruptcy: The Trustee's Avoiding Powers, Lien Priorities and Constructive Trusts

Evelyn H. Biery, Problems and Opportunities During Hard Times in the Minerals Industry (1986)

This paper will present an analysis of the avoiding powers of a trustee under the Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (codified at 11 U.S.C. §§ 101-151326 (1982) (amended 1984)) as amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 1984 U.S. CODE CONG. & AD. NEWS (98 Stat.) 333.


The Bankruptcy Reform Act of 1978, as amended, will be referred to throughout this paper as the Bankruptcy Code. All citations in the format of 11 U.S.C. § _____ will be to the amended statute. All references will be to the voiding powers of the trustee. In Chapter 7 (liquidation) or Chapter 13 or (individual debt adjustment) Cases there will be a trustee who holds the voiding powers. In Chapter 11 (reorganization) Cases, a trustee will not be appointed unless a party in interest moves for the appointment of a trustee and prove the grounds for appointment of a trustee. If there is a debtor-in-possession, rather than a trustee, the debtor-in-possession will hold all of the voiding powers otherwise exerciseable by a trustee and is to perform all of the functions of the trustee, except certain reporting and investigative duties. 11 U.S.C. §1107(a).


Until a few years ago, the oil and gas world was generally limited to individuals who grew up in the business. De