74 posts categorized "Historical Perspectives"

Measures of TARP

posted by Anna Gelpern

The curtain drew on TARP to a flood of assessments, from Treasury's up to TARP COP's down, with the commentariat all along the spectrum in between, converging around about the "necessary-evil-begets-moral-hazard" meme.  But this New York Times graphic and the surrounding talk of taxpayer repayment left me wondering.  To be sure, it is always better to make money than to lose money.  And I suppose if a government program were an abject policy failure but made a killing for the Treasury, it would not feel quite as bad as a failure that cost an arm and a leg.  The Clinton Administration's package for Mexico in 1995 is often described as a success in key part because it was repaid in a year, and made a profit for the Treasury -- so much so that Paul O'Neil, George W. Bush's first Treasury Secretary, famously endorsed his Democratic predecessors' controversial bailout.  All this makes sense if the fiscal rescue works like the central bank's lender of last resort function, meant to overcome illiquidity with safe short-term loans at penalty rates.  As Steve Davidoff points out, TARP's overriding goal was rapid stabilization, in which case the big difference between TARP's containment strategy and the preceding Fed facilities is some mix of extreme fear and political exhaustion.  I suspect that this view of  what makes TARP successful lends itself to certain methods-- big loans to banks over little subsidies to households, which would take a long time to wind their way back to the Treasury.  Should "bailouts" make more of an effort to distribute and stimulate, even if it means more risk of near-term loss?  I wonder.  Would any political body ever do it?  I doubt it.  Bye, TARP.

Time Flies

posted by Anna Gelpern

To keep this debt thing in perspective ... Germany is about to pay the last of the debt it took on to finance World War I reparations.  This debt is mostly interest payments to private bondholders.  The reparations came out of the Treaty of Versailles in 1919, but Germany had no money, so it issued bonds in the private capital markets in the 1920s to fund its payments to the Allies.  The bonds defaulted in the 1930s (first crash, then Hitler, then it got really messy), but resumed principal payments under a 1953 agreement.  Interest payments were deferred until reunification, and resumed once the Berlin Wall fell, with the last one due this weekend.  Der Spiegel story here.  How poignant yet deeply screwed up all around. 

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The Beginning of a Return to Consumer Protection?

posted by Henry Sommer

Many years ago, in the mid 1970's, when I began my career as a legal services lawyer practicing consumer law, it seemed that we were on a roll. Congress and state legislatures were passing a bevy of laws to protect consumers (including the Bankruptcy Reform Act of 1978.)  The FTC was passing regulations and taking action against consumer scams. Innovative lawyers, often in legal services programs, were bringing class actions against a wide variety of illegal and unfair practices. These cases were received sympathetically by courts that, from a common sense perspective, could see that those practices took advantage of consumer ignorance or confusion.  Little did we know that we were at the peak of the consumer protection movement and it would be almost all downhill from there.

Continue reading " The Beginning of a Return to Consumer Protection?" »

Pro-Consumer Innovations in Payments

posted by Adam Levitin

Todd Zywicki wrote in a Wall Street Journal op-ed yesterday that "The most important pro-consumer innovation in payment systems of the past two decades has been the general disappearance of annual fees on most credit cards." 

Todd is right that consumers are happy to see annual fees go away, but the disappearance of annual fees wasn't a freebie for consumers.  It came about as part of a shift in the credit card business model whereby upfront fees were replaced with backend fees that have lesser salience to consumers when the consumers decide which cards to carry and use.  This was a move that was made to increase revenue for card issuers (or put another way, to siphon off more consumer surplus); it was not a charitable act.  The disappearance of annual fees is an important innovation, but I think it is a stretch to call it a pro-consumer innovation, when it is viewed contextually.  

The disappearance of annual fees was a step in the democratization of credit (or put another way, the decline in underwriting standards).  Whether this was a good thing is unclear.  It certainly increased consumer's borrowing ability and choices, and might have led to a substitution from secured installment credit to unsecured revolving credit.  But greater ability to borrow and more borrowing choices are not necessarily good.  They are only good to the extent that a consumer is capable of repaying the increased credit line and making informed choices among credit options.  Both of those are questionable for many consumers.  

In Todd's defense, though, I am hard pressed to think of another widespread innovation that would qualify unabashedly as pro-consumer, so maybe the disappearance of annual fees wins by default.  I would have placed the card associations' waiver of all consumer liability for unauthorized transactions (going beyond TILA) as the clear winner, but I don't know how far back this policy goes.  (Please pipe in if you do.)  

The difficulty in naming pro-consumer innovations is a sorry indictment of the payments industry, and one that says something about the nature of innovation and competition in payments.  Maybe others have thoughts about pro-consumer innovations.  Comments are open.  

Bankers, pawnbrokers, actors, jugglers, acrobats, quacks, and brothel keepers...in 16th Century Holland

posted by Adam Levitin

It's pretty amazing how the status of some professions has changed over time.  I came across this astounding passage in Simon Schama's The Embarassment of Riches:  An Interpretation of Dutch Culture in the Golden Age (now you know what I read for fun): 

"Bankers were excluded from communion by an ordinance of 1581, joining a list of other shady occupations---pawnbrokers, actors, jugglers, acrobats, quacks, and brothel keepers---that were disqualified from receiving God's grace.  Their wives were permitted to join the Lord's Supper, but only on condition that they publicly declared their repugnance for their husband's profession!  Their families shared the taint and were only permitted to join communion after a public profession of distaste for dealing in money.  It was not until 1658 that the States of Holland [the representatives of the estates of nobles and commoners to the court of Holland] persuaded the church to withdraw this humiliating prohibition on "lombards."

That's a remarkable shunning of those in finance by a culture that was absolutely obsessed with material goods of every sort (tulips, satin, brocade, damasks, gold, silver, pearls, etc.).  There's a long history of religious discomfort with finance, but to see this in as commercial of an early modern culture as there was surprised me. 

Are You a Work Horse?

posted by Bob Lawless

Two items of interest . . . .

First, from West's "headnote of the day" service on a case interpreting what it meant for a horse to a "work horse" within the meaning of an exemption statute. Given the holding, I wonder how many modern-day householders might fit the description! I, for one, vow never to be broken to gear.

To entitle a poor debtor to the benefit of the act which declares "one work horse," etc., shall be retained for the use of every family in this state "free and exempt from levy or sale by virtue of any execution or other legal process," it is not necessary to prove that the horse had been broken to gear, or used in harness; but it is enough if he performed the common drudgery of the homestead, either by hauling wood, drawing the plow, carrying the family to church, etc., under the saddle or in traces. And he need not have performed all these services. If he is intended to be used in any or all of them, or in others of a kindred character, he comes within the exemption. Noland v. Wickham, 9 Ala. 169 (1846).

The second item -- there is a headnote of the day service? Who knew?

By the way, I mainly wanted to post this for the benefit of our resident horse expert, Debb Thorne, who I am sure will chastise me for my cavalier attitude toward the comparisons between humans and horses.

Hat tip to Bob Hiller for pointing the way to this.

New English Bankruptcy History Archive on SSRN

posted by Jason Kilborn

Actually, it's not really an archive per se, but the long list of collected works by John Paul Tribe, KPMG Lecturer in Restructuring at Kingston University (London) School of Law, is impressive enough to merit its own subject heading in a library collection (also, check out the intriguing ancient bankruptcy images at the Muir Hunter Museum of Bankruptcy, of which Prof. Tribe is the curator). Tribe's work was uploaded to SSRN in January and February, so many may not know of its existence yet--this is a resource not to be missed. Most of the work is historical, a great resource for those of us looking for citations (for academic or persuasive rhetorical purposes) on the earliest history and development of bankruptcy and insolvency in England, including its ever-famous death-penalty roots. Not all of the papers are downloadable (the one entitled Discharge in Bankruptcy: A Comparative Examination of Personal Insolvency Relief is particularly enticing to me, but the full-text paper is not available), but other attractive titles are free for the taking, such as A Definitive Bankruptcy and Related Subject Bibliography: From the Earliest Times to 1899 in Chronological Order and Bacon in Debt: The Insolvency Judgments of Francis, Lord Verulam. Check them out--and Prof. Tribe, if you're reading, please upload the missing papers and share the extraordinary wealth!

Contracts in Crisis: Variations in Z and S

posted by Anna Gelpern

Luigi Zingales of Chicago GSB put out a mortgage modification proposal about a month ago that got a bit of attention, but deserves more even if it has no political prayer.  It is one of a genre -- advocating across-the-board contract change in response to a macro shock -- that has at least two other prominent exponents, Randall Kroszner and Joseph Stiglitz.  I am noodling this literature for a U. Conn. symposium paper.

Zingales proposes legislation to allow homeowners to reduce the loan principal in line with the drop in home prices in their zip code from the time of purchase (as measured by Case-Shiller).  Creditors would get an equity kicker TBD.

Continue reading "Contracts in Crisis: Variations in Z and S" »

T.A.R.P. R.I.P.: Illiquency Watch

posted by Anna Gelpern

TARP's third incarnation as a consumer lending catalyst goes straight to my pet crisis peeve.  I am endlessly flummoxed at the authorities' insistence on throwing liquidity at a solvency problem -- with TARP I, AIG, and now, the consumers.

I have ranted elsewhere about the perils of drawing a sharp line between illiquidity and insolvency in a financial and macroeconomic crisis.  While the bankruptcy world has moved beyond the distinction in important ways, it still dominates the crisis policy response.

Continue reading "T.A.R.P. R.I.P.: Illiquency Watch" »

Hands on Their Faces

posted by Adam Levitin

Whenever there's a stock market crash, you can be sure that a bunch of newspapers are going to run cover photos of some broker with his hands on his face. There's probably an interesting history to this cultural meme. I always figured that there was just a few stock photos that got recycled crash after crash. And what was the story of the actual individual in the photo? Did he lose his shirt in the market? Or perhaps he was rubbing his eyes in disbelief that he'd just made a killing? Or maybe it was allergies?

Turns out that someone has gathered a collection of photos of brokers with hands on their faces. A little gallows photo humor here.

Some Curious Parallels with the 1930s

posted by Adam Levitin

There are lots and lots of differences in the financial institutions situation of the Depression and today. And yet there are some remarkable parallels in the problems and government responses. We shouldn't overread parallels as predictive matters. But some of them are pretty astounding:

Continue reading "Some Curious Parallels with the 1930s" »

Regulation Cannot Depend on Irrational Markets

posted by Christian E. Weller

At this point, it is all too clear that financial markets can get things wrong. This is not an isolated phenomenon. No, getting it wrong tends to be the name of the game for financial markets. Understanding that financial markets regularly underestimate or overestimate the risks of investing is crucial to the proper design of financial market regulations.

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Wealth Destruction by the Numbers

posted by Christian E. Weller

Financial markets went into free fall in late September and early October. The third quarter of 2008 continued the wealth destruction that took place in the previous nine months. This wealth decline is large, broad, and quick.

The primary reason for wealth building is retirement. Many families nearing retirement, though, relied primarily on their homes for their retirement income. According to the Federal Reserve, only 62.9% of families between the ages of 55 and 64, had a retirement account, such as a 401(k) or IRA, in 2004. The typical holding in such accounts was $83,000 in 2004 dollars. In comparison, 79.1% of such families owned their own house with a total typical value of $200,000. In other words, policymakers need to take a comprehensive view at restoring family wealth in an effort to strengthen retirement income security. Much of the policy attention has been on protecting housing wealth. Policy responses, though, need to match the problem, specifically by fostering a pension renaissance and by vastly improving existing retirement savings plans in addition to protecting housing wealth.

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How Long is the Way Out of the Hole?

posted by Christian E. Weller

The stock market just ended its worst week in history. This has sharply eroded families' financial security. Under rather optimistic expectations it would take about six years before families can hope to achieve the same level of financial security as they had at the end of 2007, before the latest round in the financial market crisis took shape.

Continue reading "How Long is the Way Out of the Hole? " »

This is a Financial Crisis like Any Other – Treat it Like One

posted by Christian E. Weller

I wanted to thank Bob Lawless, Elizabeth Warren and Credit Slips to invite me back as guest blogger. It seems an appropriate time to discuss topics in two of my areas of expertise -- financial crises and retirement income security -- as they are directly related to the current financial turmoil.

The markets are crashing. This is a standard financial crisis, as many other countries experienced over the past twenty or so years. In a crisis four risks materialize: default risk, maturity risk, interest rate risk, and exchange rate risk. We are spared from the last one since the dollar dropped well before this crisis. The problem is that we are not adequately addressing the remaining risks.

Continue reading "This is a Financial Crisis like Any Other – Treat it Like One" »

Market Apropos Reading

posted by Adam Levitin

As a way to searching for some historical frame of reference for the current financial crisis, I've eschewed LTCM, etc. and gone back to the granddaddy of modern market crises, 1929. To that end, I've been reading Maury Klein's Rainbow's End: The Crash of 1929. It's a cultural history of the 1920s that uses the stock market's rise in the 20s as a way to explore the development of a culture of consumption. Nonetheless, it has quite a bit of detail about the events of October 1929. There's a lot to be said about comparative financial crises---do they fall under the Anna Karenina rubric or not?

For now, though, two key points (not original to Klein) of how popular memory and actual events diverge: (1) the "Crash" was not a one-day event. It was a series of ups-and-downs that stretched out over a month, with some sighs of relief in between. (2) The relationship between the Crash and the Depression is uncertain and hotly debated--the Depression did not immediately follow the Crash; it only set in a half a year later and the causal mechanism, if any, is uncertain.

God Was the Poor Man’s Only Surety

posted by Mechele Dickerson

The Conference opened with a talk on "Debt, Credit and Poverty in Early Modern England" presented by Dr. J. Craig Muldrew, a history professor from Cambridge (the one in England, not the one in the US).  (He used the term that is the title for this post.)

Though his paper related to Early Modern England, you'll notice striking similarities between what happened then, and what's going on now.  Indeed, Professor Edward Balleisen (a history professor at Duke) connected the dots between then, and now, in his response to Dr. Muldrew's paper.

Continue reading "God Was the Poor Man’s Only Surety" »

The Future of Consumer Credit in the US

posted by Paige Marta Skiba and Jeremy Tobacman

During these few posts we've been writing about aspects of consumer credit today in the US.  We'd like to close our week by inviting comments about the future of consumer credit.  How much indebtedness should we expect in the long term?  Will plastic be with us forever?  Will the terms of consumer credit improve (lower interest rates, more frequent flyer miles) or worsen (higher late fees, more invasive collections practices)?

We've had a blast blogging this week. Thanks!

Debt Slavery? Correlation of Slavery with Chapter 13 Filing Patterns

posted by Adam Levitin

Looking at Bob's posting of chapter 7 and 13 filing rates, I couldn't help but notice the correlation between high chapter 13 filing rates and states in which slavery was legal until 1863 (the "South" broadly speaking). The 11 jurisdictions with the highest rate of chapter 13 filings (and all of those with over half the filings being 13s) were slave states. The top 9 (and but for Lincoln imposing martial law in Maryland, the top 11) states were all part of the Confederacy. With a few of exceptions, all former slave states were in the top 15.

Slavery_and_chapter_13_numbers_2

What are we to make of this this correlation?

Continue reading "Debt Slavery? Correlation of Slavery with Chapter 13 Filing Patterns" »

State Control of Pre-Modern Bankruptcy

posted by Emily Kadens

At the end of my turn, I want to thank the Credit Slips bloggers for the opportunity to talk about some of my work and the readers for putting up with my long posts.

With my last post, I want to turn away from stories and air an issue about which I admit I am rather confused. I hear some modern bankruptcy scholars calling state control the defining characteristic of bankruptcy, and I am not sure what that means, or at least, I am not sure how to explain the way the state and the bankruptcy procedure intersected historically if state control is the defining characteristic. I will agree that from the first, bankruptcy has been a fundamentally statutory system. Not completely, mind you, because medieval northern Europe had a customary debt relief system that was something like bankruptcy, and some of the elements of what became modern bankruptcy were developed customarily in medieval northern Italy. Also, a great deal of English bankruptcy law was judge-created expansion and explanation of the statutes. But at its base, bankruptcy was built on statutes. Thus, even though for centuries the procedure was often run by the creditors, they operated in the shadow or under the compunction of the statutes, and more importantly under the threat of state-imposed punishment for not following the statutes. Given this caveat, I still think that indiscriminately labeling the various shades of state involvement “state control” is to homogenize what was a varied situation. By homogenizing under one descriptor, we lose a sense of important differences. What follows are a few very, very sketchy and selective observations about the public-private coexistence of bankruptcy procedure in several times and places. My question for readers is: what is the role of the state in bankruptcy procedure? Where is it vital and where is it, perhaps, optional?

Continue reading "State Control of Pre-Modern Bankruptcy" »

Hanging Bankrupts

posted by Emily Kadens

As previously promised, today's post is an overview of the history of the use of capital punishment for fraudulent bankruptcy in England.

The English instituted capital punishment for fraudulent bankrupts in 1707, but they were not the first to do so. In 1560, Charles IX of France legislated that “All bankrupts and those who failed (feront faillite) fraudulently are to be punished . . . capitally.” The royal ordinance of 1579 seems to have stepped back from the death penalty, but the punishment was reinstated in the royal edict of May 1609 on account of concerns that the multiplication of bankruptcies would lead to the ruin of commerce. Capital punishment remained the legal penalty for fraudulent bankrupts in the 1673 French national commercial code and until the time of the Revolution. In reality, the French courts often tried to avoid sentencing fraudulent bankrupts to death, but the law was not an empty threat. In 1602, two bankrupts were tortured and hanged. In 1637, a fraudulent bankrupt was tortured then condemned to be led around with a signboard around his neck reading, “Fraudulent Bankrupt,” prior to being strangled to death. But some judges preferred a more humane punishment. In 1673, for instance, a prominent bankrupt in Paris was sentenced to be led around by a rope around his neck, carrying a signboard advertising his crime, pilloried for three days, and then enslaved on a galley ship for nine years, and—to add insult to injury—made to pay court costs.

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Perrott Bankruptcy, Part 3: Lord Mansfield, a Dead Prostitute, and Hidden Banknotes

posted by Emily Kadens

This is the final installment of the Perrott bankruptcy story begun here and continued here.

Perrott was not pleased about being sent back to Newgate, so he turned to the courts.  In September 1760, he brought a writ of habeas corpus in King's Bench arguing that he should be released because he had answered the commissioners’ questions.  Lord Mansfield remanded Perrott to Newgate.  This case resulted in no published report, but Perrott's next two habeas attempts did.  In Rex v. Perrott, 2 Burrow's Reports 1122, heard on February 10, 1761, Perrott again argued that 1) he had already given a full answer to the commissioners’ questions; and 2) the commissioners' jurisdiction to question him, and therefore to commit him to prison, lasted only for the statutory 42 days that the bankrupt had to surrender himself and be examined.  Mansfield summarily dismissed point one, saying that Perrott’s answer to the commissioners was "very insufficient and unsatisfactory."  On question two, he pointed out that Perrott's counsel was reading the relevant statute (5 Geo 2 c. 30) selectively, for one section clearly permitted the commissioners to commit the bankrupt until he made a full answer. "The objection has been strongly argued," Mansfield said, "but there is no case to support it.  It is a new invention, and would entirely defeat the end and intention of the bankrupt-acts."

Finding himself still stuck in Newgate, Perrott agreed to submit to another examination by the commissioners.  This time he explained that about six years previously he had become acquainted with a certain Sarah Powel.  During 1759, he had lavished money upon her to the amount of 5000 £.  He provided an exact accounting of this money, each entry listing the month in which he sent Powel the money and the place to which he sent it.  Each entry was in round numbers:  100 £ at Christmas 1758, 500 £ in January 1759, 400 £ in February 1759, etc.  The commissioners were not persuaded.  First, Perrott could not provide any details about the money he spent on Powel during the first four years of their acquaintance, nor could he remember where she lived during those years, even though he claimed to have visited her often and to have written her.  Second, Perrott claimed that all of the money he sent to Powel came from his agent Henry Thompson.  None of it came from bank notes, and therefore none of it was traceable.  Unfortunately, Thompson had since died.  Conveniently, so had Powel, who had died penniless of consumption about ten months earlier (meaning that Perrott had known of her death when he gave his previous accounting on June 5, 1760).  In fact, Perrott could provide no evidence at all of giving enough money to Powel to keep her in luxury for many years.  On the contrary, the commissioners dug up evidence that Powel had complained to others of Perrott's parsimony.  To make matters worse, the commissioners discovered that Powel, aka Rachel Sims, was a prostitute and a drunk, or as a contemporary account put it, she was "in keeping, as the fashionable term is, by different persons, but was deserted at the time of Perrott’s meeting her.  She had contracted an habit of drinking, an habit not uncommon to ladies of her profession and disposition. . . ."

Continue reading "Perrott Bankruptcy, Part 3: Lord Mansfield, a Dead Prostitute, and Hidden Banknotes" »

Perrott Bankruptcy, Part 2: Mysterious Packages and a Lot of Missing Money

posted by Emily Kadens

(This is a continuation of my post from yesterday here )

In deposing Perrott's agent, Henry Thompson, the commissioners learned that the day after the commission was sued out, Perrott had his apprentice deliver a package to Thompson for safe keeping.  The package was sealed with three seals, and Perrott told Thompson it contained personal papers unrelated to the bankruptcy.  On February 27, Perrott asked Thompson to bring the package back to him, which he did.  An account of Perrott's case here adds the following alert, "it is necessary to advertise the reader, to keep in his memory the paper parcel sealed with three seals . . . as it was principally owing to the same paper parcel, that this complicated scene of iniquity was at last unraveled."  Perrott later told the commissioners that the package contained "'nothing but letters from the fair sex;' which he had since destroyed."

The commissioners also received a tip leading them to a certain Patrick Donnelley, a peruke, or wig, maker, who told them that on March 13, Perrott sent him two large boxes, claiming the boxes contained his clothing and asking Donnelley to hold onto them while he looked for lodging.  Several days later, Perrott instructed Donnelley to deliver the boxes to rooms in a house in one of the fanciest parts of town, on Queen Street in Holborn.  The house was occupied by a Mrs. Mary Anne Ferne.  Ferne was interviewed.  She claimed she had known Perrott for about a year but had received no money, banknotes, or other effects from him, and the matter was dropped.

When the commissioners finally got to examine Perrott again on April 19, they presented him with the following written interrogatory, "As you do admit that you have spent the last week . . . with Mr. Maynard, one of your assignees[,] to settle and adjust your accounts and to draw up a true state thereof, to enable you to close such your examination; and do likewise admit . . . there is a deficiency of the sum of 13,513 £ . . . .  Give a true and particular account; What is become of the same, and how, and in what manner you have applied and disposed thereof?"

Continue reading "Perrott Bankruptcy, Part 2: Mysterious Packages and a Lot of Missing Money" »

Perrott Bankruptcy, Part 1: The bankruptcy Opens

posted by Emily Kadens

Thank you to Bob Lawless for the far too generous introduction and to the Credit Slips bloggers for the opportunity to regale you with stories of bankruptcies past.  I know this a bit out of the usual stream of discussion on this blog, but I will try to keep things interesting. 

One of the things that strikes me about the history of bankruptcy (to say nothing of modern bankruptcy rhetoric) is the omnipresent ambivalence about the bankruptcy mechanism.  On the one hand, countries that developed bankruptcy laws did so because the elite perceived it to be good for commerce—pre-modern bankruptcy only being available to traders.  At the same time, though, people were offended by the notion that debtors could get away without honoring their commitments. 

This ambivalence comes out forcefully in the fear of “fraudulent bankruptcy.”  This concept meant different things in different countries.  French law, for instance, distinguished between those honorable debtors who were forced into insolvency (in French called faillite, or "failure") through circumstances not of their own making, and those dishonorable debtors whose irresponsible spending and borrowing habits caused their downfall.  The latter were called banqueroutiers, and were considered to have perpetrated a fraud on their creditors and were consequently subject to criminal prosecution. Seventeenth- and eighteenth-century England did not make a comparable distinction between types of bankruptcy.  Instead, one would commit the crime of fraudulent bankruptcy by failing to follow the requirements set out in the statutes, for instance by refusing fully to disclose assets.  In principle, the punishment for this crime was death by hanging.  In a later post, I will talk more generally about the use of capital punishment for fraudulent bankruptcy in England.  For sheer entertainment, I want to start with a multi-post account of the bankruptcy and eventual execution of John Perrott in London in 1761.  In 1819, this case was remembered by a parliamentary commission debating the abolition of capital punishment for bankruptcy as the most famous fraudulent bankruptcy of them all.

Continue reading "Perrott Bankruptcy, Part 1: The bankruptcy Opens" »

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