A World Without Harvey

posted by John Pottow

Here's an early obit.  It's hard for me to imagine a chapter 11 world without Harvey Miller.  Although the adjective is over-used, I think it would be difficult to argue the man was not transformative to bankruptcy law.  He was an incredible mentor, and I am honored to have considered him a friend.  I can't count  how many younger lawyers in the field he encouraged and taught, in so many ways.  It's just hard to imagine a world without his seemingly indefatigable spirit.  Harvey makes -- made, I'm still adjusting to the past tense -- you feel both energized and exhausted at the same time after an engagement.  It's a sad day, but happy too, I suppose, knowing what a great run he had.  Trite, I apologize, but he was a rare breed, indeed.

"Quicken" the Development of the Law

posted by Katie Porter

Over the last few years, the US Department of Justice has reached settlements with nearly every major lender with regard to the lending procedures for FHA (Federal Housing Administration) loans. The legal basis for the settlements were alleged violations of the False Claims Act. The total recovery is about $3 billion dollars.Sue me

In the wake of lengthy and expensive investigations and negotiations, lenders have basically . . . whined.  Jamie Dimon said the company was "thoroughly confused" by the FHA's investigations and said he was going to "figure out what to do." That task might be a whole lot easier due to Chase's competitor, Quicken Loans. On Friday, Quicken sued the Department of Justice and the Department of Housing and Urban Development, asking the court for a declaratory judgment and injunction that would halt the government's efforts to bring Quicken to settle its alleged FHA liability. I love this lawsuit!!! 

Continue reading ""Quicken" the Development of the Law" »

Thanks for the chance to post.

posted by David Lander

Thanks to the folks who run Credit Slips for the opportunity to post.  I hope to be back in a few months with musings about the following: 

  1. Since the CFPB has very limited authority over auto finance, and since securitization of consumer auto loans is back with a vengeance and since low and moderate income folks desperately need used cars, we need to watch carefully this first post-crash subprime challenge. 
  2. Do preference recoveries redirect dollars in accordance with the goal of preference avoidance? With help from Ronald Mann I hope to do a small empirical study that others might replicate in their localities.Such information is crucial in figuring out the right size and shape for the preference recovery net. 
  3. Has the combination of the fall-off of law student numbers and the pressure toward more practice-oriented courses impacted the use of adjuncts in law schools?
  4. What are the factors behind the significant fall-off in insolvency work and is this a normal cycle or does it constitute institutional change for the business bankruptcy bar? I hope to combine my thinking with what I can learn from interviews with lawyers, lenders of every type, turnaround folks and academics who study this type of thing.   Till next time. 

Secured Credit, Churches, and Reorganization

posted by Pamela Foohey

Chapter 11's ability to empower true reorganization has received much criticism of late in light of an increasingly held assumption that most Chapter 11 cases end in a 363 sale of the debtor's assets. Around this time last year, the American Bankruptcy Institute and the University of Illinois College of Law co-hosted a symposium dedicated to discussing secured creditors’ rights and role in modern Chapter 11. Papers from the symposium (including by Slips contributors) very recently became available here.

I was lucky enough to moderate a couple of the symposium panels. As I was listening to the discussion, I noticed that what I was hearing about secured creditors and 363 sales did not match  what I had observed in my study of how religious organizations (mainly smaller churches) currently use Chapter 11. To accompany the release of the symposium papers, I wrote a short piece describing how secured creditors influenced religious organizations' Chapter 11 cases in ways that did not lead to widespread sales, but rather, plans and settlements.

Continue reading "Secured Credit, Churches, and Reorganization" »

A Gunmaker Gets Aggressive

posted by Stephen Lubben

TrackdownOver at Dealb%k, I have a new column up about Colt's rather aggressive dual-track exchange offer and prepack.

In short, it involves very little creditor input. Perhaps part of a larger trend of aggressive use of chapter 11 by private equity backed debtors?

And no, I have no idea if Robert Culp is holding a Colt firearm that that picture ... but he looks kind of cool, doesn't he?

An Arbitration Between Russia and Ukraine?

posted by Mark Weidemaier

Shutterstock_267853262Russia has threatened to take Ukraine to arbitration unless the country pays its $3 billion bond in full. As Anna notes, the bond gives the holder the option to sue in English court or to arbitrate under the rules of the London Court of International Arbitration (LCIA). The LCIA is a preeminent international arbitration institution, but the choice of arbitration over litigation is an unusual one in this context. Non-consumer lenders typically prefer litigation to arbitration. As I've shown elsewhere, sovereign lenders share this preference. Arbitration clauses rarely appear in sovereign bonds unless (i) the issuer's internal law forbids it to submit to foreign court jurisdiction (e.g., Brazil, El Salvador) or (in English-law bonds) (ii) the issuer has not agreed to enforce English court judgments but has signed on to the New York Convention, which requires it to enforce foreign arbitration awards. Ukraine falls into the latter camp, and its bonds have traditionally given bondholders the option to arbitrate. (Technically, it's the trustee's option; bondholders cannot demand arbitration. But Russia owns 100% of this issue, and I presume the trustee will do what Russia wants.)

I have not seen the trust deed for the Russian bond so I can't say with 100% certainty how the arbitration clause operates. From the prospectus, however, it seems that the clause is identical to the one in Ukraine's other debt (see par. 25.4-25.7). There is a panel of three arbitrators; each party nominates one, and the parties jointly nominate the third. Most lenders prefer judges in New York or London to this kind of arrangement, which arguably ensures at least one arbitrator receptive to the borrower's arguments. From the lender's perspective, there's nothing to argue about. I lent money; you didn't repay it. (Party-appointed arbitrators are formally independent of the appointing party - see LCIA Rules 7.1 and 5.3-5.5 - but some suspect bias nonetheless.) So why does Russia prefer to arbitrate?

Continue reading "An Arbitration Between Russia and Ukraine?" »

Lessons For Consumer Protection From The World Of Inclusive Capitalism

posted by David Lander

Lately I have been teaching courses with names such as "Global and Economic Justice" and "History, Impacts and Regulation of Consumer Credit" instead of "Bankruptcy," "Secured Transactions" and "Chapter 11 Reorganizations." So I have been reading different books and listening to different speakers. A lecture I attended recently by Xav Briggs  here brought to my mind a couple of books that I use in one of my courses, “Borrow” and “Debtor Nation” both written by Louis Hyman. In many ways Hyman's books remind me of "Credit Card Nation" the outstanding and "ahead of its time" book by Robert Manning which I used extensively when I created my consumer credit course in 2002. 

Part of the wisdom I find in each of these books is the caveat that you cannot understand consumer protection without understanding the nature of American capitalism or the drive for an above-market return. This was never clearer or more of a "blow to the side of the head" than during the frenzy in the early 2000's, and perhaps nothing demonstrates it more crassly than the rating agencies covering their eyes as they rated subprime securitizations allegedly in order to "keep the business." 

Continue reading "Lessons For Consumer Protection From The World Of Inclusive Capitalism " »

Ukraine's Bond Restructuring: Surgery, Conspiracy, and Campaign

posted by Anna Gelpern

Debt restructuring is the second largest source of outside financing for Ukraine’s new IMF program. The Fund itself brings $17.5 billion over four years; $9.6 billion comes from governments and other multilaterals (including Europe, the United States, and most recently, China), leaving $15.3 billion for the "debt operation." The jargon makes debt restructuring sound like a mix of surgery, conspiracy, and military campaign, which together pretty much sum up Ukraine's challenge.

Continue reading "Ukraine's Bond Restructuring: Surgery, Conspiracy, and Campaign" »

Russia's Bond: It's Official! (... and Private ... and Anything Else It Wants to Be ...)

posted by Anna Gelpern

Ukraine's bond restructuring talks are in high gear, and, as ever, Russia is trouble du jour. Not only is it threatening to hold out in the bond deal and take Ukraine to arbitration, Russia also seems poised to block IMF disbursements to Ukraine using an arcane Fund policy on "lending into arrears." My hunch is that this last risk is overblown, and in any event should not drive IMF policy or Ukraine's restructuring strategy. 

Continue reading "Russia's Bond: It's Official! (... and Private ... and Anything Else It Wants to Be ...)" »

Dodd Frank and Pink Champagne

posted by Stephen Lubben

Over at Dealb%k, I argue that section 117 of Dodd-Frank is more Siouxsie and the Banshees than Eagles.

Dodd-Frank 2.0: The Unfinished Business of Financial Reform

posted by Adam Levitin

Our former co-blogger, Senator Elizabeth Warren, delivered an incredibly important speech yesterday laying out the work still to be done on financial reform. This speech is a bigger deal than Senator Warren's Antonio Weiss speech or her famous Citibank speech. This speech is a blueprint for Dodd-Frank 2.0.  It lays out a detailed vision of the challenges for reform work going forward:

  • break up the big banks;
  • a 21st Century Glass-Steagal Act that promotes narrow banking;
  • a targeted financial transactions tax to reduce unnecessary volatility from excessive arbitrage;
  • elimination of the tax system's preference for debt over equity financing, a limit on the Fed's emergency lending authority;
  • a simplification of the financial regulatory system (does this as presaging a reduction in the number of bank regulators? The SEC should certainly feel the heat from this speech...);
  • reforms aimed at the various types of short-term debt that are the hallmark of the shadow banking sector (money market mutual funds, repo). 

There are three remarkable things about this speech.  First, what is truly groundbreaking is that Senator Warren recognizes that the problems in the financial regulatory space are not just technocratic ones but political, and that technocratic fixes will never work until and unless the political structure of financial regulation is reformed.  Senator Warren's speech says exactly what needs to be said:  the power of large financial institutions not only threatens our economy, it threatens our democracy. Senator Warren has picked up the mantle of Teddy Roosevelt. 

Second, as a political matter this speech announces a reform offensive. Since the high-water mark of Dodd-Frank's passage in 2010 we have seen a steady push for deregulation. For Senator Warren to take the offensive here, particularly when her party is in the minority in both houses of Congress shows real moxie. That this speech is credible in such political circumstances is also a testiment to its substantive strength. 

Third, this speech presents the only vision for financial reform in the policy space. (OK, I guess the "deregulate 'em all" approach is a vision of sorts, but come on...) There isn't a competing right or left alternative out there.  No one else has a cohesive reform platform.  I think that makes Senator Warren's speech all the more important because this is the speech that will shape the policy field going forward into 2016.  This is the yardstick against which all presidential candidates, Democratic and Republican will be measured. It will be interesting to see which ones endorse what parts of Warren's vision and how enthusiastically. Silence will be particularly telling, as it is a vote for the dysfunctional status quo that leaves the Too-Big-To-Fail banks intact and growing. 

Read the speech.  This is important. 


Who is Helping Consumers With Defaulted Student Loans?

posted by David Lander

Clearly, the biggest surprise in consumer borrowing since the crash has been the explosive expansion of student loan debt. It has surpassed both auto lending and credit card lending. And, since it ties with Payday Lending and pre-crash sub-prime mortgage lending for the thinnest underwriting there are defaults aplenty. 

Consumer advocates are rightly urging the Department of Education to provide simpler and clearer paths forward for consumers with student loans in default but many people still need a helper.  As defaults in mortgage loans and on credit card loans have fallen, providers who live on the profits of counseling people who default on those loans have turned their attention and their advertising and marketing to consumers who are in trouble on their student

Continue reading "Who is Helping Consumers With Defaulted Student Loans?" »

Can We Count on Macro-Economists to Analyze the Impacts of Inequality?

posted by David Lander

Prior to the crash, only a very few macro-economists were studying consumer borrowing and fewer still were investigating inequality of income or of wealth as an important macro-economic factor. Work in macro-economics is done at academic institutions, the Fed, think tanks and government and private enterprises. Historically, very few PhD dissertations in macro-economics dealt with consumer finance or consumer spending or inequality issues. Prior to the crash there was a divide between the small minority (which included some high prestige folks such as Joseph Stiglitz) and the dominate majority. Both sides make extensive use of mathematical formulae but the majority looks more like physics and the minority may include a dose of sociology.  This is important stuff because government fiscal policy and even monetary policy and private business decisions are often based on the work of these folks. The majority tended to believe that humans act rationally while the minority helped develop the field of behavioral economics. 

Continue reading "Can We Count on Macro-Economists to Analyze the Impacts of Inequality?" »

Bankruptcy Lawyers Have Right to Work

posted by Katie Porter

 In the debate in Wisconsin over the  Right to Work bill, the legislators opposed to the bill questioned why no businesses were testifying in support of the law, if it was--as stated--going to drive business growth.

The Wisconsin Assembly got an answer when James Murray testified about the Right to Work bill. Mr. Murray explained that if passed, Right to Work would definitely increase his business: helping people file personal bankruptcy. Bankruptcy could become big business in Wisconsin, he said, noting that with a Right to Work law, Wisconsin could climb higher than 12th place on the per capita filing rate. 

Enjoy 7 minutes of brilliant satire and bankruptcy humor, courtesy of You Tube. Hat tip to Professor Michelle Arnopol Cecil for sharing this with me.


Why Has Chapter 11 Failed as a Reorganizing Chapter?

posted by David Lander

The ABI has spent thousands of hours on its Chapter 11 Commission Report; the National Bankruptcy Conference is hard at work on its "Rethinking Chapter 11" project. Underlying these and other such efforts is an overwhelming frustration with the failure of Chapter 11, under current circumstances to empower true reorganization. Hard to believe but it was not always this way. During the first decade or two of the Bankruptcy Code it seemed to be working pretty well; in fact many courts were unwilling to consider quick sales of the entire business. Many large cases resulted in a confirmed reorganization plan although some led to further chapter 11 efforts or failure; the results in smaller or medium-sized cases were more uneven with a healthy percentage being dismissed or converted to Chapter 7.  There was almost no discussion of Section 363 at the Ten Year Retrospective on Chapter 11 in Williamsburg and there was little commentary on its use. Indeed, the 1997 report of the Bankruptcy Review Commission did not focus on this issue. 

Beginning sometime between the Code's tenth and twenty-fifth birthdays the tide shifted; not only did most courts back off from their legal position that Chapter 11 was for reorganization and that any sale of the entire business needed to be done within a Plan, but the vast majority of cases seemed to shift to quick 363 sales to a suitor that was identified before the filing with an auction possible if there were competing bidders. 

Continue reading "Why Has Chapter 11 Failed as a Reorganizing Chapter? " »

Insurance Capital Games and PMI Reinsurance Kickbacks

posted by Adam Levitin

The New York Times carried an important story about the risky investment moves of life insurance companies. There's a lot of good stuff in the story, but it missed an important angle, namely the consumer harm that has already resulted from bank affiliation with captive reinsurers in the private mortgage insurance space, namely inflated and unecessary private mortgage insurance premiums because of illegal kickback arrangements. 

Continue reading "Insurance Capital Games and PMI Reinsurance Kickbacks" »

Negating Russia's Veto Over Ukraine's IMF Package

posted by Mark Weidemaier

This is a joint post by Mark Weidemaier and Mitu Gulati.

Reports indicate that the IMF's package of financial aid to Ukraine could be in trouble if Ukraine can't or won't pay its $3-billion-plus debt to Russia. The reason is that IMF policy forbids "lending into arrears" to official bilateral creditors. In theory, the policy gives Russia a potential veto over the rescue package. We think the IMF can't--well, certainly it shouldn't, and probably it won't--allow Russia to exercise that veto.

The IMF has waffled on whether Russia is an official creditor. A debt isn't "official" just because it is owed to another government. Governments invest for commercial reasons, and they also make investments that, while not motivated by the search for profit, aren't exactly motivated by altruism. On the "official" side of the ledger, Russia lent money at below-market interest, ostensibly to help a friendly neighboring government. On the "non-official" side, the investment was made by Russia's sovereign wealth fund, the relevant part of which exists to support Russia's pension system--in other words, to make a profit. (In case you were wondering, the fund reportedly had to violate its investment guidelines.) Plus, in Ukraine's telling, the loan was to prop up a pro-Russian kleptocrat and enhance Putin's political stability. Although those sound like official motives, the IMF can't be eager to let the maker of such a loan veto a Fund rescue package.

We don't think the IMF needs to publicly declare that Russia is not an official bilateral creditor. It simply needs to communicate to the Russians that the IMF board is prepared to make an exception to the general policy against lending into official arrears unless the Russians strike a deal with Ukraine. Below the jump, we explain why the IMF should make this threat, and carry through with it if necessary. Simply put: (1) There are strong arguments that the rescue package does not implicate the Fund's lending into arrears policy and (2) these arguments are based on such a unique set of circumstances that an exception would not undermine the IMF's general policy in the slightest.

Continue reading "Negating Russia's Veto Over Ukraine's IMF Package" »

New and Improved Warren & Westbrook, now with Porter & Pottow!

posted by Jason Kilborn

WWP&PMy school bookstore asked me to identify my fall book choices the other day, which reminded me that I had intended to comment on the new book I've been using for my Bankruptcy class. The new 7th edition of the classic Warren & Westbrook Law of Debtors and Creditors now features Katie Porter and John Pottow as co-authors (note the Credit Slips sweep of the author page). This is not the type of frustrating and all-too-common new edition incorporating a few nits here and there and swapping out two cases to change the pagination on your syllabus. The previous editions, which I've used for 15 years, were very good; this latest edition is really great.

Continue reading "New and Improved Warren & Westbrook, now with Porter & Pottow!" »

Professor Jay Westbrook Joins Us

posted by Bob Lawless

My  best email of the day will be Professor Jay Westbrook's email saying he will join our mostly merry band of bloggers on a permanent basis. Westbrook has been guest blogging with us for a few weeks. Thanks to our great community of followers and your engagement with the issue we discuss, we have been able to persuade him to hang around. Westbrook is a legend in the field, and we are very proud to him as part of the Credit Slips team.

1,000 Twitter Followers

posted by Bob Lawless

That is an amazing milestone. Thank you everyone for your interest in what we have to say here.

If you want to follow us on Twitter or subscribe to our Facebook page, there are buttons on the right-side of the screen. These outlets are simply other channels we use to get our content to those who want to receive it.

Fast Foreclosures, Slow Foreclosures

posted by Alan White

At the onset of the current foreclosure crisis, banks bemoaned their inability to get homeowners in default to respond to their generous offers of loan modifications and other foreclosure alternatives. Homeowners, it seemed, were like ostriches with their heads in the sand. Outreach efforts were launched to bring the homeowners in from the cold. Foreclosure sales, banks told us, were the worst possible outcome, and everything should be done to avoid them.

Fast forward a few years, and we no longer hear about those unresponsive homeowners. In fact, the mortgage servicing industry, starting around 2009, was rapidly overwhelmed with homeowners seeking loan modifications and other workouts. Soon homeowners were the ones complaining about getting no responses from servicers. Diligent homeowner attorneys uncovered the robosigning scandal, courts and regulators demanded that servicers clean up their act, and foreclosure cases languished while servicers gave homeowners applying for loan modifications and short sales the runaround. Today the banking industry complains of spending too much time talking to homeowners, claiming that long foreclosure delays resulting from homeowners massively coming in from the cold are just wasting everyone’s time and money.

Continue reading "Fast Foreclosures, Slow Foreclosures" »

Quantifying the Benefits of the Fresh Start

posted by Jason Kilborn

I recently discovered a not-so-new paper that provides a useful answer to a question I've asked before:  Who benefits from consumer bankruptcy, and to what degree? This is a real challenge for policy-making, and well-supported answers are essential to greasing the wheels of reform.

In this paper, Will Dobbie (Princeton) and Jae Song (SSA) use a creative technique, comparing the financial outcomes of Chapter 13 debtors whose plans were--and were not--confirmed to probe the positive effects of access to such relief (apparently whether or not the payment plan is successfully completed). Successful access to Chapter 13 protection led to over $5000 in increased annual earnings in the first ten post-filing years and a 3.5 percentage-point increase in employment over the first five post-filing years, including a nearly 3 percentage-point increase in self employment. Access to relief also reduced the receipt of "welfare" benefits and increased retirement savings contributions.  Most striking, access to debt relief reduced mortality (presumably by decreasing stress) during this period by almost 2 percentage points--which is a 47.5% decrease from the mean for filers whose cases were dismissed, largely attributable to a large, positive effect on filers over 60. The authors attribute these gains to an increased incentive to work and produce earnings and  reduction in economic instability and stress.

The results of this study are among the many individual and societal benefits of consumer bankruptcy commonly identified in legal literature. Indeed, the authors conclude that "individual debt relief is much more likely to be welfare-improving than previously realized"--and these instances of individual welfare redound in direct ways to the state and society as a whole. While I can see a variety of quibbles that empirical scholars might have with this study, the results provide fairly solid support for the most common working theories of relief, and they offer even greater comfort for policymakers searching for reasons to introduce or expand individual debt relief.

Ukraine's Russian Problem, Part 2

posted by Mark Weidemaier

Ukraine is telling investors it must trim external debt by $15.3 billion. Its bonds have CACs but no aggregation, and a 50% vote is needed to bind holdouts. (Modification requires a quorum of at least 2/3 in aggregate principal amount; 75% of "persons voting" must approve the modification.) Faced with some determined investors, it will have to make holding out unattractive in order to gain approval on favorable terms, and this means dusting off its bonds to see what clauses work to its advantage.

It needs to be even more creative to deal with Russia, which (has an army and) controls 100% of its $3 billion bond issue. Assuming Ukraine is willing to play hardball, I discussed in an earlier post how it might have plausible defenses to enforcement of the debt. The doctrine of prevention--even impracticability (not normally available to debtors, but these are not normal circumstances)--comes to mind. That post elaborated on an argument made in an article by Mitu Gulati and Joseph Blocher. Mitu and Joseph make a second argument, which I want to address in some detail here. In a nutshell, the argument is that, if Russia tries to enforce the debt in English courts, Ukraine can use English procedural rules to demand sensitive information from Russia. As Joseph Cotterill elaborates over at FT Alphaville: "Ukraine could then bring Crimea, plus an examination of the inner workings of both the Putin regime and its relations with the Yanukovich government, into a legal defence..." The resulting embarrassment would be costly for Russia, and this cost, if material, would give an additional incentive for Russia to compromise. But I'm skeptical of the proposal.

Continue reading "Ukraine's Russian Problem, Part 2" »



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