Bankruptcy in Russia, 1740-1800, and the First Non-Merchant Discharge!

posted by Jason Kilborn

Boyar creditorI discovered something surprising in my summer research on the history of bankruptcy in Russia: It seems that the first modern, court-ordered bankruptcy discharge available to non-merchant debtors appeared not in the US or England, but Russia, in 1800. I suspect the relief offered was largely theoretical, but I found it shocking and intriguing that a discharge appeared in Imperial Russian law that early on. The law will finally come full circle in October 2015, when the new Russian law on personal insolvency becomes effective. It's been a long time coming!

As in England, bankruptcy law in Russia started from a much more hostile and punitive position toward debtors. In the Charter on Bankrupts of 15 December 1740 (law no. 8300, available online here), debtors who fell into distress through no fault of their own were to be released from debtor's prison and not fined (s. 19), while debtors whose fault contributed to their downfall (e.g., by continuing to trade while insolvent) were to be fined and executed by hanging (ss. 31-32). Luckily for debtors, this law was apparently ignored in practice and was replaced in 1753 with a new law (without a death penalty) by Peter the Great's daughter, Elizabeth. 

A more radical departure from past practice appeared in the landmark Charter on Bankrupts of 19 December 1800 (law no. 19,692, available online here). This law for the first time drew a distinction between merchant and non-merchant debtors, making bankruptcy relief available to the latter in a distinct Part Two.

Continue reading "Bankruptcy in Russia, 1740-1800, and the First Non-Merchant Discharge!" »

Dodd-Frank's Constitutionality

posted by Adam Levitin

I'm testifying tomorrow before Senate Judiciary Committee's Subcommittee on The Constitution (yes, that's the official capitalization), about the constitutionality of the Dodd-Frank Act.  

Short version: nothing to see here folks.

Slightly longer version: really nothing to see here.

Even longer version:  the plaintiffs in State National Bank of Big Spring v. Lew have a totally non-Originalist interpretation of the Bankruptcy Clause, namely that "uniform laws" apparently requires equal treatment of all similar creditors, so title II Orderly Liquidation Authority is unconstitutional.  Yes, that's the sound of me shaking my head.

My written testimony is available  here.  

Attorney Market for Discharging Student Loans

posted by Dalié Jiménez

BeatSLs

On Friday, Tara Siegel Bernard reported in the New York Times that some bankruptcy judges think that the onerous Brunner standard for discharging student loans should change. Commenting on the article, reader "alma" writes:

As someone who recently filed for bankruptcy and has more than $100,000 in student loan debt, I can tell you why I did not try to get relief from student loans: I did not know it was an option. My lawyer simply told me that it was not possible to have student loans discharged. This article is the first I have even heard there was any method to do so ....

From the rest of the comments, this poster is not alone. Some of this may be explained by clients misunderstanding what's said (where the attorney means they don't think that this particular client will succeed in obtaining a discharge). But especially pre-2005 when the law was murkier, I do wonder about the level of advice given to filers.

Attempting to discharge student loans costs extra money, something bankruptcy clients are unlikely to have. Given the low numbers of attempts, it's unlikely any given bankruptcy attorney has any experience filing such a case. Doing it is no simple matter either; it's literally a federal case. I've only found one book out there detailing how to file an adversary proceeding to discharge student loans in bankruptcy. 

My own limited experience is that this is (unsurprisingly) quite hard. As part of a larger study, Jim GreinerLois Lupica, a couple of dozen students, and I have been working to create a DIY guide to a no-asset Chapter 7 bankruptcy guide, complete with a module on representing yourself through an adversary proceeding to discharge student loans. We just posted a paper on the philosophy behind our materials (and why we include cartoons like the one above). If we succeed, we hope that the materials we create will be useful to attorneys as well as pro se individuals. But there has to be a market before attorneys will use them.

What say you, Credit Slips readers, are bankruptcy attorneys offering student loan discharge services? Do clients want them? Can they afford them?

The cartoon credit goes to Hallie Pope. Hallie is the creator of "Blob" and other cartoons featured in the self-help materials in the Financial Distress Research Study.

In Which We Enter the Fourth Grade

posted by Bob Lawless

Ninth Anniversay LogoToday is the ninth anniversary of Credit Slips, which means we are now old enough for the fourth grade. Thanks for reading and for your support.

The year we started, 2006, seems so long ago. The W was in the White House, and we were "Mission Accomplished" in Iraq for three whole years at that point. We had just experienced the second sitting vice president to shoot another person while in office. And, it was a year the St. Louis Cardinals would win the World Series (so some things change not so much). CFPB was just a nascent idea that one of our co-bloggers was promoting.

I won't make any predictions about the next nine years lest I anger the Giant Robot Overlords who will be in charge by then.

Faster Payments: Is There a Business Case?

posted by Adam Levitin

The Federal Reserve System has embarked on a project of exploring the possibility of faster retail payments in the United States.  A similar move has occurred with the UK Payments Council.  At the same time, the Electronic Payments Network is rolling out a faster version of ACH.

Here's what puzzles me:  what on earth is the business case for faster retail payments in the United States?  The U.S. payment system works incredibly well. Yes, it has flaws: the interchange system is unfair and security is atrocious. But those aren't really speed issues.  Real-time authentication is a security issue, but that's separate from speed of payment clearance and settlement.  

Now, it's true that the US lags behind other countries in terms of mobile payment technology.  We don't have anything like Kenya's m-Pesa mobile payment system. But there's a reason for that:  we don't need m-Pesa in the US because we already have a functioning retail banking system, and our banks are better safety-and-soundness risks than our telecom operators.  (Kenya's government owns a large share of m-Pesa, making it quasi-guarantied, I guess.)  

So readers, tell me, what am I missing?  Is there a business case, or is this just about chasing shiny bells and whistles and wanting to have the latest technology just because?  My sense is that we're seeing an "iPhone effect" of wanting the best and newest, even though the current system is just fine. 

Big Win for CFPB on Debt Collection

posted by Dalié Jiménez

Yesterday, Judge Amy Totenberg of the Northern District of Georgia issued a very cogent 70-page opinion in the case of the CFPB v. Frederick Hanna & Associates, a large collection law firm with offices in Georgia, Florida, and South Carolina. The opinion denies Hanna's motion to dismiss in its entirety, and almost completely agrees with the CFPB's legal theory. In doing so, the opinion deals a serious blow to the collection law firm business model.

A brief recap of the case if you haven't been following. A year ago, the CFPB filed suit against the Hanna law firm essentially attacking the big collection law firm business model. Among other things, the CFPB alleged that the firm operated "less like a law firm than a factory" and that attorneys were not "meaningfully involved" in the collection lawsuits they filed. As an example, the CFPB alleged that one attorney in the Hanna firm signed about 138,000 lawsuits between 2009-10. That's 189 lawsuits per day, 7 days a week, 52 weeks a year.

The second CFPB claim was that in filing most of its lawsuits on behalf of debt buyers, the law firm "knew or should have known that many of the[] affidavits [they filed] were executed by persons who lacked personal knowledge of the facts." The Bureau sued under both the Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Act (CFPA) for what it alleges were false or misleading and unfair acts and practices.

The opinion allows the Bureau to proceed on all of these claims. Specifically, Judge Totenberg (who incidentally, is Nina Totenberg's sister) found that the Bureau could regulate collection attorneys under the CFPA (the first time any court considered this issue), that the "meaningful involvement doctrine" extends to activities in litigation, and that the Hanna firm might be liable for filing affidavits given to it by its clients if the CFPB can prove its allegations.

The last two points are huge because it means that collection attorneys will have to spend some time reviewing the collection cases they file. (How much time and what constitutes enough "involvement" is up in the air). Nonetheless, this completely up-ends the business model of at least some collection law firms. As Joann Needleman has pointed out at InsideARM, an interlocutory appeal is unlikely to succeed here, so look for the CFPB to file more cases (or enter into consent decrees) with more law firms.

The Supreme Court, the Fair Housing Act and the Racism Debate

posted by Alan White

The Supreme Court made a noteworthy contribution to the crescendo in our national conversation about race in its recent Texas v. ICP Fair Housing Act decision.

The Court affirmed that the Fair Housing Act prohibits not only explicit racial discrimination, but also policies and practices that have the effect of excluding or harming racial minorities.

In marked contrast to its Voting Rights Act and other decisions, the Supreme Court (5-vote majority) in this case did not declare that racism has nearly ended, nor that the time for corrective laws is coming to an end. Justice Kennedy, the perennial swing voter, grounded the continuing vitality of disparate impact analysis in the sad legacy of various policies, including redlining, steering, and restrictive covenants, a legacy that insures the persistence of geographic segregation of races in the United States, and perpetuates our vast opportunity and wealth gaps. In his opinion, he harkens back to the Kerner Commission's conclusion that the uprisings of the 1960s arose in no small measure from the ghettoization and racial apartheid of American cities. 

As a matter of legal doctrine the issue was straightforward. The Fair Housing Act has been interpreted consistently for more than forty years by all lower federal courts to prohibit housing and housing finance practices that exclude or discriminate against racial minorities in their effects. For example, a town's zoning plan that completely prohibits multifamily housing construction violates the Fair Housing Act when the result is to perpetuate the virtual exclusion of black families from the town. In the housing finance sphere, a bank's refusal to make mortgage loans in certain zip codes, or below a certain dollar amount, will violate the FHA if it has an unjustified disparate impact on minority homebuyers. Congress has re-enacted and amended the FHA without ever disapproving the application of disparate impact analysis.

Often, the difference between disparate impact and disparate treatment is a matter of proof, not of underlying facts. For example, in the exclusionary zoning cases, there is often evidence of racial animus at least among some members of the excluding suburb's governing bodies, but perhaps not enough to link a particular zoning vote to that racism. Some disparate impact cases are about racism by subterfuge. Others are about implicit bias, or even thoughtless discrimination. Disparate impact analysis, per Justice Kennedy, "permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment."

One undoubted consequence of disparate impact analysis is that banks are under an affirmative obligation not to perpetuate the legacy of racism and the racial wealth divide with home lending practices and policies that have no business justification. No doubt, in the aftermath of the decision banks will protest that they must now enact racial quotas or make risky mortgage loans to unqualified borrowers. Housing lenders depend on an vast array of explicit and implicit state subsidies. The Fair Housing Act does not require making loans that won't be repaid. It does impose an affirmative public duty to make home loans in a way that closes rather than widens our nation's racial divide.

Chapter 9 and Puerto Rico

posted by Stephen Lubben

As Melissa has noted, the First Circuit has found that the Commonwealth's attempt to solve its own problem runs afoul of Congress' "intent" to leave Puerto Rico without a municipal bankruptcy system.

Professor Eichengreen, in an interesting essay on Greece and Puerto Rico, suggests that Congress will fix the problem with the Bankruptcy Code. Word from Washington is somewhat less optimistic.

Puerto Rico Preemption Redux: Back to You, Congress

posted by Melissa Jacoby

1stCircuitCoverOn February 6, 2015, a district court held Puerto Rico's Recovery Act to be expressly preempted by section 903 of the Bankruptcy Code.

On July 6, 2015, the U.S. Court of Appeals upheld the finding: The Recovery Act is preempted, on both express preemption and conflict preemption grounds. 

Judge Torruella wrote a separate concurrence starting on page 50 of the decision. One of his points bearing special mention here is that he finds unconstitutional the 1984 Bankruptcy Code amendment that stripped Puerto Rico's right to authorize chapter 9 for its municipalities, due to the lack of a rational basis. Had he secured another vote for that view...

Credit Slips contributors surely will weigh in more, in this space or elsewhere, on the decision and  next steps. For now, Congress needs to move on H.R. 870, which now has support in the Senate. H.R. 870 simply reinstates Puerto Rico's ability to authorize its municipalities to use chapter 9, akin to states. Others advocate for bankruptcy relief for the Commonwealth of Puerto Rico itself; that proposal is separate from, and considerably more controversial than, H.R. 870.

 

Thoughts on the Greek Referendum and the Democracy Mismatch in Public Debt Crises

posted by Anna Gelpern

Today's Greek referendum might look like a high point for democratic accountability, but it is not. When Greek citizens vote on the demands of their government’s international creditors, the outcome will bind Greek politicians, but not the creditors that have prescribed economic policy for Greece since 2010. Instead, the European institutions and the IMF answer to a complex tangle of constituents outside Greece, including taxpayers in other countries that stand to lose money if Greece fails to pay its debts, and those who would suffer shock-waves from Greece abandoning the euro as its currency.

This democracy mismatch can lead to over-lending and over-borrowing based on flawed policies and improbable assumptions, which might have been rejected if the creditors had a more direct stake in the consequences of their prescriptions for Greece from the start. Tying a small portion of debt repayment to policy outcomes would improve accountability and help align incentives for the borrowing government and its creditors alike.

Continue reading "Thoughts on the Greek Referendum and the Democracy Mismatch in Public Debt Crises" »

Catching Up

posted by Stephen Lubben

So I've been off the grid for a few weeks, and of course after months of little to talk about, the world gave us a bounty of stories about financial distress, and related topics, each of which would merit its own post. But I'm going to hit them quickly to get caught up again this holiday weekend:

  • I've always enjoyed reading Hamilton's Report on Public Credit, which has something of a reorganization plan about it, as well as a good discussion of distressed debt trading. Thus, I'm largely in agreement with those that say that Jackson and not Hamilton should go to free up space on one of our bills. But what about having two types of bill in each denomination? Harriet Tubman on some dollar bills, with Washington on the others, seems about right. 
  • I joined an amicus brief for the loosing side in in Baker Botts, L.L.P. v. ASARCO, L.L.C., the most important case of the term.  (Or maybe not.)  Thus, it will be no surprise that I think the dissent has the better argument. The majority seems to be totally out of touch with the reality of bankruptcy practice, and its opinion seems to be an open invitation for bomb throwers who stop just short of Rule 11. Image
  • Greece in undoubtedly between a rock and a hard place. Its economy is likely to be devastated if it leaves the Euro, at least in the short term, and it certainly will be further devastated by more austerity. Does it really matter which way they vote? The larger EU has to think about precisely what it is trying to achieve here. Yes the current Greek government is a bit buffoonish, but who helped to elect them?
  • Puerto Rico is obviously in quite a similar situation. The most realistic outcome seems to me to be (a) an exchange offer of the Commonwealth debt tied to realistic (non-punitive) reforms and (b) chapter 9 for the utilities. Part "a" of course risks holdout problems – can exit consents do the trick?

That might generate some comments this weekend.

Madden v. Marine Midland Funding

posted by Adam Levitin

In a recent case called Madden v. Marine Midland Funding, the Second Circuit ruled that a loan owned by a debt collector violated New York's usury statute.  The loan had been originally made by a national bank and was subsequently sold to the debt collector when it was in default.  There's no question that the state usury law was preempted when the loan was held by the national bank.  The Supreme Court's (awful) Marquette National Bank v. First of Omaha Service Corp. decision from 1978 makes that very clear.  (The Court suddenly discovered in 1978 that over a century of legal understanding of the 1864 National Bank Act was somehow wrong and that banks had been leaving lots of money on the table.)  

The debt collector argued that because the loan had been made by a national bank, it carried preemption of state usury laws with it as a permanent, indelible feature.  "Applesauce!" proclaimed the Second Circuit:  National Bank Act preemption of state usury laws extends no further than National Bank Act regulation.  Preemption is part of a package with regulation, but once the loan passes beyond the hands of a National Bank, it loses its preemption protection and becomes subject to state usury laws.  (Some of you might recognize that this is an argument I made several years ago. Plaintiff's counsel sent me a very nice email to this effect.  You owe me a citation, 2d Circuit!).  

Continue reading "Madden v. Marine Midland Funding" »

Notifying Potential Claimants in Diocese Chapter 11 Cases

posted by Pamela Foohey

Since 2004, 12 Catholic dioceses have filed under Chapter 11. The latest case is that of the Archdiocese of St. Paul and Minneapolis, which filed in January 2015. The claims bar date is set for August 3. How should the Archdiocese go about notifying potential claimants -- clergy abuse survivors who have not yet come forward and who may feel ashamed and alone -- that they need to file a claim by the bar date?

Yesterday the official unsecured creditors' committee (which is comprised of five clergy abuse survivors) filed a motion requesting that the bankruptcy court order all 187 parishes to play a 7 minute video in which three abuse claimants explain the necessity of filing a claim by the bar date and talk about, from their unique perspectives, why coming forward, however hard it may be, is important, both for survivors and for the church. (The motion also requests that parishes publish the video on their websites.)

The video is hard to watch. The motion states that the committee tried to come to an agreement with the debtor and the parishes about the video. The motion identifies "cooperation clauses" in insurance contracts that require insured parties (the parishes) to limit the liability of the insurers to the greatest extent possible as the main problem that stalled negotiations. It also is understandable that parishes might not want to show the video or put it on their website simply because it is hard to watch. But ultimately I think that the video is a very worthwhile idea, as a legal and community-building matter.

Continue reading "Notifying Potential Claimants in Diocese Chapter 11 Cases" »

Gelpern on Puerto Rico and Greece on Rehm

posted by Bob Lawless

Credit Slips blogger, Anna Gelpern, was on the Diane Rehm Show this morning discussing the financial problems in Puerto Rico and Greece. Gelpern of Georgetown University was joined by Greg Ip of the Wall Street Journal and Matthias Matthjis of Johns Hopkins. A link to the full audio program can be found here

Searching CFPB Consumer Narratives

posted by Pamela Foohey

Yesterday the Consumer Financial Protection Bureau (CFPB) went live with its consumer complaint database, publishing over 7,700 consumer narratives detailing problems they have faced with banks, debt collectors, and other creditors. The CFPB also issued a request for information seeking public input on how it can make the data more useful to the public, including how to normalize the narratives to make them more comparable. Which prompted me to search through some of the narratives.

The website allows for viewing of the narratives online by products and services, as well as downloading of data. Some of the products are broken down by sub-product--such as medical specific debt collection and payday loan specific debt collection. The narratives in each product category seem to be searchable by words and phrases. For instance, I searched the payday loan product category by the name of a notorious lender.

Continue reading "Searching CFPB Consumer Narratives" »

Is There a Student Loan Debt Crisis?

posted by Adam Levitin

I've been a skeptic for some time about claims that we have a student loan "crisis" in the United States. For individuals mired with student loan debt, it is very much a crisis, of course.  But my reluctance to term growing levels of student loan debt a crisis reflects the fact that student loan debt is highly concentrated within the population and is generally structured in a way that does not create sharp liquidity crises:  long (and often deferrable) maturities, no sharp repayment shocks, and often offers established repayment and forgiveness programs. (This is more true of government loans than private loans.) And, while student loan debt is growing rapidly, it is still only about a 9th of the size of the mortgage market. All of this has kept the student loan kettle from boiling over.  

Yet at the same time it is precisely because of the concentration of student loans in the younger population that it is concerning.  Large debt loads at the beginning of one's adult life are likely to have very different effects on than debt spread out over a life time.  Moreover, student loans are not incurred based on current income, but on assumptions of future income (if that), so student loan debt burdens are more likely to be poorly calibrated to borrower's actual earning capacity. Additionally, because student loan debt is not dischargeable in bankruptcy (except in extreme circumstances), unlike other types of debt, it likely to stick around.  And, unlike various types of secured debt, there is no "put" option. A homeowner who runs into trouble with a mortgage or a cash-strapped auto loan borrower can always sell the house or car (or let them be repossessed) to pay off part or all of the debt. That's not possible with unsecured debt.  

The real concern with student loans is not an acute liquidity crisis, like a mortgage payment resets or a massive surge in defaults, as with underwater homeowners.  Instead, the systemic danger from student loans is a debt overhang problem in which consumers' consumption habits are altered by the constant drag of debt service. That's not a "crisis" yet, but it's a problem that needs to be addressed before it becomes one. 

Continue reading "Is There a Student Loan Debt Crisis?" »

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