10 posts from January 2017

What's Wrong with the Bankruptcy Courts?

posted by Jason Kilborn

The Judiciary Data and Analysis Office of the Administrative Office of the US Courts has launched a new feature called "Just the Facts," highlighting statistical trends in the US judiciary. Table 2 and Chart 3 of the inaugural report reflect a curious spike in the appellate reversal rate in bankruptcy cases in 2015. While the reversal rate for both ordinary civil cases and bankruptcy cases in the Courts of Appeals had hovered steadily around 10-12% from 2011 to 2014, the reversal rate in bankruptcy cases suddenly shot up to double that, 24% (!), in 2015. It is not entirely clear to me whether this is reversal of the Bankruptcy Courts' rulings or the District Courts' rulings (it may be a bit of both, taking into account direct appeals, etc.), but in either case, whoa! Anyone have any idea what happened here? Why did the appellate courts get so mad at the lower courts in bankruptcy cases all of a sudden the year before last? I wonder if this continued in 2016. Lots of Stern reversals? Something else? Curious.

UPDATE 1/31/17: Bankruptcy statistics guru, Ed Flynn (whose fabulous work you've probably seen in the ABI Journal), helped me to understand that (1) the statistics referenced here (from Tables B-1 and B-5)  are for appeals from District Courts to Courts of Appeals, as BAP cases and District Court bankruptcy appeals are reported elsewhere (Tables BAP-1 and -2 and C-7, none of which indicates the numbers of reversals at these intermediate appeal levels), (2) the 110 merits reversals in 2015 come predominantly from the 11th Circuit and involve mostly one appellant, (3) we can probably now guess who it was and therefore what happened: Bank of America's appeals of wholly underwater second mortgage stripdown in Ch. 7  had to be granted (lower courts reversed) after the Supreme Court reversed the aberrant 11th Circuit position on allowing such stripdowns in Caulkett in mid-2015. Mystery most likely solved. Thanks, Ed!

New Study Tells Inside Story of how Local Communities use Ordinances to say ‘Enough’ to Payday Lenders

posted by Nathalie Martin

Robert Mayer of the University of Utah and I just finished an 18-month study of community approaches to controlling payday lending . The study concludes with ten lessons communities can use to pass similar ordinances on any subject matter. In The Power of Community Action: Anti-Payday Loan Ordinances in Three Metropolitan Areas, we document how local communities positively organize to control payday lending in their jurisdictions and thereby create important legal change. Our whole report as well as an executive summery can be found  here

We hope this study will galvanize local communities and show them how they can make a difference in changing the law and society as a whole, Payday loans, which are borrowed against future paychecks and can carry interest rates of 400 percent or more, often strip wealth from society’s most economically vulnerable individuals and communities. These loan outlets now outnumber all McDonald’s, Burger King, Starbucks and Walgreens stores combined. In states where legislative controls are weak — and in the absence of federal regulations — some local governments have stepped forward to address the problems caused by high-cost, predatory payday loans.The researchers traveled to three regions — Silicon Valley in Northern California; Greater Metropolitan Dallas in Texas; and Greater Salt Lake City in Utah — to see how local entities have produced numerous ordinances aimed at halting the spread of payday lending. The locations were chosen for their diverse demographic, cultural, political and legal characteristics.

Continue reading "New Study Tells Inside Story of how Local Communities use Ordinances to say ‘Enough’ to Payday Lenders" »

Swindlers and Crooks Doing Backflips: New Balleisen Book on Fraud

posted by Melissa Jacoby

BalleisenBookNot a moment too soon, Princeton University Press has just released Fraud: An American History from Barnum to Madoff by historian & Duke University Vice Provost Ed Balleisen. (Some readers might be familiar with his earlier book on bankruptcy in Antibellum America).

As I learned when reviewing an earlier draft, Fraud is meticulously researched and completely fascinating, with plenty of careful attention to law and regulatory structures. The book's other virtues are well encapsulated by Kirkus:

"Balleisen casts a gimlet eye on the passing parade of hucksters and charlatans, peppering a narrative long on theory with juicy asides that build toward a comprehensive catalog of ‘Old Swindles in New Jargon’. . . . Ranging among the disciplines of history, economics, and psychology, Balleisen constructs a sturdy narrative of the many ways in which we have fallen prey to the swindler, and continue to do so, as well as of how American society and its institutions have tried to build protections against the con. But these protections eventually run up against accusations of violating ‘longstanding principles of due process,’ since the bigger the con, the more lawyers arrayed behind it."--Kirkus

Although it starts in the 19th Century, the book's breadth includes our recent "deregulatory" decades and the impact of that approach on fraud containment.  A book for our life and times for sure.

 

Paul Blustein's Laid Low, and Some Musings on the Next Crisis

posted by Mark Weidemaier

(This is a joint post by Mark Weidemaier and Mitu Gulati)

We jointly teach a class on international debt, focusing on what happens when sovereign governments and the entities they control go bust. We love this class, because we work with our students to design a restructuring plan for a country in financial distress, and our students often come up with terrific ideas. This semester, we're focusing on Venezuela, which would involve an enormously complicated restructuring. One reason is that Venezuela has not exactly cozied up to the IMF, which typically plays a key role in a restructuring. To get a sense of the IMF's role and limitations, we asked our students to read Laid Low, Paul Blustein's new book about how the IMF played a part in managing (and mismanaging) the Greek debt crisis. Blustein is a terrific story-teller, with rare access to key players at the IMF and elsewhere. Although we followed the European debt crisis closely, much of what's in Laid Low was new to us.

Continue reading "Paul Blustein's Laid Low, and Some Musings on the Next Crisis" »

Marblegate and a Dose of Reality for the Trust Indenture Act

posted by Jason Kilborn

The Second Circuit on Tuesday released its long-awaited opinion on the Trust Indenture Act, Marblegate v. EDMC. Several of us Slipsters have been discussing the case behind the scenes, and others will have (more intelligent) things to say about the opinion than I, but I thought I'd introduce the blockbuster case to get us rolling.

Long story short, the TIA essentially prohibits out-of-court workouts over the objection of any noteholder whose notes (debt securities) are part of the issuance qualified under the TIA. Section 316(b) says "the right of any holder of an indenture security to receive payment ... or to institute suit for the enforcement of any such payment ... shall not be impaired or affected without the consent of such holder." (emphasis added). The case was about what it means to "impair or affect" the "right" to get paid under indentured notes. The creative argument advanced by Marblegate was that lots of activities having nothing to do with changing the notes or their terms can "impair or affect" its right to get paid, and EDMC crossed the line. EDMC had done a creative end-run around the TIA by suffering its secured creditors to foreclose their (undisputed) security interests in all of its assets and then resell those assets to a newly created subsidiary of EDMC, scrubbing the former unsecured claims from those assets and leaving Marblegate and other noteholders with a claim against an empty shell. This was the second option in a Hobson's choice presented to noteholders; the first was to accept a 67% haircut and participate in a global workout with the secured creditors. Nearly 100% of the noteholders chose this option; Marblegate chose to play chicken and see if the courts would allow EDMC and its secured creditors to wipe out Marblegate's practical ability to enforce its claim by leaving an empty shell as the only obligor on Marblegate's unsecured debt after senior secured claimants exercised their superior rights in every scrap of available value. The contractual terms of Marblegate's right to collect were unchanged, but the practical ability of Marblegate to make anything of this right was clearly "impaired and affected," Marblegate argued.

Continue reading "Marblegate and a Dose of Reality for the Trust Indenture Act" »

Scarcity, Money, and Undocumented Immigrants

posted by Pamela Foohey

Scarcity refers to having less than one needs -- time, money, calories when on a diet. For example, not having enough money reduces a person's cognitive capacity as much as missing one full night of sleep. When Scarcity, by Sendhil Mullainathan and Eldar Shafir, was published, Slipster Katie Porter connected its lessons about the mental tax of not having enough to adding a "cushion" to a chapter 13 plan. And now, Slipster Nathalie Martin's recently published paper, Survival in the Face of Scarcity: The Undocumented Immigrant Experience, uses her hour-long interviews with 50 undocumented immigrants living in Albuquerque, New Mexico to explore how their acute financial scarcity impacts their lives. Though the paper is focused on undocumented immigrants, some of the lessons of the narrative that Martin weaves apply equally to all cash-strapped people.

Continue reading "Scarcity, Money, and Undocumented Immigrants" »

Bankruptcy Filings for 2017 -- Let's Say 767,000

posted by Bob Lawless

2016 Annual Filings ChartAccording to Epiq Systems, there were 771, 894 total U.S. bankruptcy filings in 2016, a decline of 5.8% from 2015. The overall annual decline in 2015 was 10.0% and was 11.8% in 2014.  As I noted yesterday, the rate of decrease is decreasing.

At the beginning of 2016, I projected 780,000 filings for the year. That forecast was only 1.0% off. Pride goeth before a fall. Here is my thinking for 2017.

Continue reading "Bankruptcy Filings for 2017 -- Let's Say 767,000" »

Bankruptcy Rate Rises in December . . . A Blip and Not a Blip

posted by Bob Lawless

2016 Month Over Month TrendsSomething happened in the U.S. bankruptcy courts that had not happened since October 2010. The daily filing rate increased on a year-over-year basis. There were 56,394 filings in December 2016 as compared to 53,844 in the previous December. Also, because the 2016 filings were spread over one less business day than in 2015, the rise represented a 9.7% increase in the daily filing rate. The lighter-red line in the graph to right the shows just how dramatic the spike was.

Continue reading "Bankruptcy Rate Rises in December . . . A Blip and Not a Blip" »

The Real Reason Behind the Calls for Firing Richard Corday (and the Costs of Doing So)

posted by Adam Levitin

The calls for Donald Trump to fire CFPB Director Richard Cordray are getting louder (see here and here). It's worthwhile understanding what's really afoot here. Cordray's term as CFPB Director expires in July 2018, so firing him in January 2017 doesn't seem to accomplish a lot.  If Cordray is fired, the Deputy Director automatically becomes the Acting Director and is fully empowered to do everything that the Director would otherwise do, until and unless a replacement Director is confirmed by the Senate (or recess appointed), a process that will take a while.  So we're probably talking about speeding up Republican control of the CFPB by less than a year.  Does that really matter?

Actually yes. It is hugely important to the financial services industry in general and to the payday lending industry in particular. The CFPB has two major rule makings pending, one restricting binding mandatory pre-dispute arbitration clauses that are used to prevent class actions and a second imposing an ability-to-repay requirement on payday and auto title loans. It is not clear when the CFPB will publish final rules on the topics; there is some speculation that the arbitration rule might be out before Inauguration Day. But the thinking is that a change in CFPB leadership might come in time to stave off these rule makings.  (Note that both rulemakings would be subject to Congressional override under the Congressional Review Act, but it's quite possible that a few Republicans in the Senate defect on both rulemakings.) In other words the calls to remove Cordray aren't about real outrage over dated employment discrimination allegations at the CFPB, but just shilling for the financial services industry, which is trying to head off the payday and arbitration rulemakings. 

One can see the appeal to a Trump administration of firing Corday. It's a chance for Donald to parade out his trademarked "you're fired" line and to quickly claim a victory and please part of its base. I would hope, however that the Trump administration has good enough counsel to recognize that there is real risk from attempting to fire Cordray, such that the cost of firing Corday is likely to outweigh any benefits. Put in Trump terms, it's a bad deal. 

Continue reading "The Real Reason Behind the Calls for Firing Richard Corday (and the Costs of Doing So)" »

Trump Post Office Mechanic's Liens

posted by Adam Levitin

It's not often that one finds mechanic's liens in the news.  I think this is ripe for inclusion in secured credit casebooks.

Update:  After thinking about this more, this gets more interesting than a plain vanilla mechanic's lien.  Recall that Trump doesn't own the Old Post Office.  He has a leasehold, and the building is owned by the federal government.  So this raises the question about whether the lien reaches to the fee simple ownership of the federal government or if it is a lien on the leasehold.  I have no idea. There are some states in which a mechanic's lien triggered by work done by a tenant reaches the landlord's fee simple ownership if the work was done with the landlord's consent (see here, e.g.). I don't know what, if anything, DC caselaw says on this.  (If the lien is filed against the federal government itself, there's a different process through the Miller Act, but I doubt that applies since the federal government was probably not a party to the construction contract.) 

A potential further complication is the status of federal property in DC. Can it be subject to mechanic's liens?  Can it be foreclosed on?  Where does sovereign immunity come into play?  

Finally, what is the effect of a lien on the property on Trump's leasehold?  I can't imagine that there's any way to actually foreclose on Trump's leasehold--the lease for the Old Post Office isn't going to be freely transferable.  If so, what good does a mechanic's lien do, other than embarrass Trump?  Is it an Event of Default under the lease if Trump suffers it to persist?  If so, that would give the contractors some leverage, but this all seems much messier than a typical mechanic's lien situation. 

I'm somewhat perplexed.  Trump doesn't own the Old Post Office.  He has a leasehold.  So is the mechanic's lien filed against his leasehold or against the building?  I don't see what good it does to file it against a.  A mechanics lien gets paid in one of two ways.  Either it gets paid when the building is sold or it gets paid after foreclosure by the unpaid contractor following a successful suit for the unpaid balance.  Given that the building is federally owned, I'm not sure what either of this means.  

Contributors

Current Guests

Follow Us On Twitter

Like Us on Facebook

  • Like Us on Facebook

    By "Liking" us on Facebook, you will receive excerpts of our posts in your Facebook news feed. (If you change your mind, you can undo it later.) Note that this is different than "Liking" our Facebook page, although a "Like" in either place will get you Credit Slips post on your Facebook news feed.

News Feed

Categories

Bankr-L

  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.

OTHER STUFF

Powered by TypePad