postings by Jason Kilborn

Personal Bankruptcy Coming to China

posted by Jason Kilborn

The English-language press has discovered a long-gestating project to introduce personal bankruptcy law in China. The project is described as "China's first personal bankruptcy law," though it remains just a draft for now, and it is strictly limited to longtime residents of Shenzhen, in the special economic zone just north of Hong Kong. If it's a success, something like this law may be rolled out across the country, as the CCP Central Committee (meeting at the 3rd session of the 13th National People's Congress a few weeks ago) explicitly announced its intention to "promote individual bankruptcy legislation" (see item 8, first paragraph). As far as the suggestion that this has been prompted in any sense by the COVID-19 pandemic, lawyers in Shenzhen have been working on this project since at least 2014, and they released a book-length discussion of this project in 2016. And as far as the characterization of this being "the first" such draft law, another extremely thoughtful and impressive draft law was released a few weeks ago by a group of bankruptcy scholars associated with the Research Center for Personal Bankruptcy Law of Beijing Foreign Studies University (coordinated by the amazingly energetic and dedicated Prof. Liu Jing). Meanwhile, courts in several southern coastal cities have been undertaking their own experiments with dealing with debt collection cases involving insolvent debtors. So ... BIG things have been underway in China on this topic for some time now. Stay tuned for more details on these interesting developments (I'm working on a couple of articles on developments in small business bankruptcy in the Arab world and in China this summer and fall ...).

What's in a Word: New Immigration Public Charge Rule and "Bankruptcy"?

posted by Jason Kilborn

I was surprised to find that the explosive new US immigration "public charge" rule has some interesting bankruptcy angles. The rule is a thinly veiled attempt to reduce immigration to the US by non-wealthy individuals (i.e., the vast majority of applicants) by expanding the legal basis for "inadmissibility" based on the likelihood that the immigrant might at some point become a "public charge" drain on the US public welfare system (such as it is). The indirect bankruptcy angle is how similar this is to the BAPCPA means testing fiasco of 2005. Want to reduce access to a public benefit on the pretextual basis that it's being "abused"? Simply ramp up the formalistic application requirements! The new rule imposes a ridiculous and substantial paperwork burden on immigrants to demonstrate that they're not "inadmissible" as potential public charges, requiring completion of a means-test like questionnaire (with often only vaguely relevant questions) supported by a thick sheaf of evidence. The direct bankruptcy angle is ... one of the questions is about bankruptcy! Item 14 (!) asks "Have you EVER filed for bankruptcy, either in the United States or in a foreign country?" (emphasis in original). The thing that struck me about this question is that, of the small but growing number of non-Anglo "foreign countries" that have a system for providing debt relief to individuals, few call this system "bankruptcy." That word is reserved for business cases, creditor-initiated cases, a traditional liquidation not involving a multi-year payment plan, or some other distinction. Individual debt-relief procedures are often intentionally called something other than bankruptcy to signal these differences, reduce the stigma of seeking relief, and emphasize the rehabilitative function of the procedure. The public charge form (and instructions) betray no familiarity with this reality, even in the context of a follow-up question, "Type of Bankruptcy," with check-boxes for "Chapter 7," "Chapter 11," and "Chapter 13." Chauvinism, anyone? I guess I should be relieved that the ignorance of the drafters of this silly and odious new rule might have undermined the "bankruptcy" question, but that leaves honest immigration attorneys in a bit of a bind: do I prompt my client to answer "yes" and explain that her country doesn't have three "Chapters" or even "bankruptcy," but that her gjeldsordning procedure was the functional equivalent? Oh, I forgot--immigration from Norway is actually encouraged!

Debt Limits ... and Poison Pills

posted by Jason Kilborn

The Russian Duma last week adopted on first reading a bill that attempts to solve the biggest problem with the new Russian personal insolvency law, but the bill contains a poison pill provision that will all but kill its effectiveness if the bill makes it past the second and third readings and becomes law.  The problem lawmakers are trying to solve is that far fewer than the anticipated (and desired) number of overindebted individuals are seeking relief. While policymakers estimate a stock of nearly 800,000 potential debtor-beneficiaries of the new bankruptcy relief, only a small fraction have applied, mostly due to the prohibitive cost of the procedure. The obvious solution? Make it less expensive by cutting out the needless and counterproductive formalism, especially the court process. Well, while that message is clearly reflected in the new bill and its proposed solution, the poison pill is in a different and easy-to-miss access restriction: The proposed out-of-court procedure (run and financed by self-regulating organizations of insolvency trustees, a clever and unique approach) is available only to debtors with no seizable income or assets and less than 50,000 rubles (US$2000 PPP) in all bank accounts over the past three months ... and with a total debt burden of no more than 500,000 rubles (US$20,000 PPP, or about $10,000 using official exchange rates). The estimate of 800,000 expected debtors, by the way, includes only individuals with more than 500,000 rubles in debt, so this new bill will not make any headway at all toward solving the existing problem. The English bankruptcy system has struggled with a similar problem of overly complex and therefore expensive access, too, and the English have "solved" this problem in a similar way, by making light-admin Debt Relief Orders available only to debtors with debts below £20,000. English analysts have estimated that more than 75% of bankruptcy debtors meet the "no income, no asset" DRO restriction, like that in the new Russian law, but the debt ceiling excludes them from the cheaper and more efficient form of DRO relief. This is pernicious and counterproductive, as Joseph Spooner argues in his terrific new book (see pp. 122-30). What is the purpose of excluding no-income, no-asset debtors from an efficient bankruptcy procedure because they have too much debt? It is extremely disheartening that the otherwise very clever and progressive new Russian NINA procedure contains the seeds of its own undoing. The new clinic will not treat patients with anything more than a common cold.

Small Biz Reorg Act Sleeper Innovations

posted by Jason Kilborn

Two aspects of the Small Business Reorganization Act of 2019 intrigued me as I looked more closely at this important new twist on Chapter 11 for the other 99%.

First, I thought the new SBRA procedure might be a fairly snooze-worthy Chapter 13 on protein supplements (i.e., not even steroids) because the current Chapter 13 debt limit (aggregate) is $1,677,125, while the new SBRA aggregate debt limit is less than double this, at $2,725,625 [note to the ABI: please update the figures in your online Code for the April 2019 indexation]. A couple of obvious and another non-obvious point cut in opposite directions here, it seems to me. First, Chapter 13 is not available to entities (e.g., LLCs), and for individuals, the Chapter 13 debt limits are broken out into secured and unsecured, while the SBRA figure is not. So the SBRA is significantly more hospitable to any small business debtor with only $500,000 in unsecured debt or, say, $1.5 million in secured debt. Flexibility is a virtue, so maybe the SBRA is just a meaningfully more flexible Chapter 13? No, as Bob's post reminded me. In the "conforming amendments" section at the end of the new law is hidden an important modification to the definition of "small business debtor" in section 101(51D), which will now require that "not less than 50 percent of [the debt] arose from the commercial or business activities of the debtor." So no using the SBRA provisions to deal more flexibly with an individual debtor's $500,000 in unsecured debt or a $1.5 million mortgage or HELOC if it's not related to business activity.

Second, this last point is the really intriguing aspect of SBRA for me. For the first time in recent memory, we see a crack in the wall that has insulated home mortgages from modification in bankruptcy. Sections 1322(b)(2) and 1123(b)(5) still prohibit the modification of claims secured by the debtor's principal residence, but the SBRA at last provides an exception to this latter provision: An SBRA plan may modify the debtor's home mortgage (including bifurcation into secured and unsecured portions?!) if "the new value received in connection with the granting of the security interest" was not used to acquire the home, but was "used primarily in connection with the small business of the debtor." A small crack it may be, but this sleeper provision strikes me as an important opening for serious discussion of modification of other non-acquisition home mortgage modifications in Chapter 13, for example. This would be a game changer after the HEL and HELOC craze of the earlier 2000s. It will doubtless provide further evidence that the HELOC market will not evaporate or even change appreciably as small business debtors begin to modify their home-secured business loans. Of course, that depends on a robust uptake of the new procedure. We shall see in 2020.

Small Borrowers Continue to Struggle Without Relief

posted by Jason Kilborn

Several recent stories remind us that many, many ordinary people around the world continue to struggle with crushing debt with no access to legal relief, and when relief is introduced, it is vehemently opposed by lenders and often limited to the most destitute of debtors.  These stories also reveal the dark underside of the much-heralded micro-finance industry.

In Cambodia, micro-finance debt has driven millions of borrowers to the the brink of family disaster, as micro-lenders have commonly taken homes and land as collateral for loans averaging only US$3370. When many of these loans inevitably tip into default, borrowers face deprivation of family land, at best, and homelessness at worst. Actually, in the absence of a personal bankruptcy law (which Cambodia still lacks), things can get much worse. If a firesale of the collateral leaves a deficiency, borrowers might be coerced into selling their children's labor or even migrating away to try to escape lender pursuit. In the past decade, the MFI loan portfolio in Cambodia has grown from US$300 million to US$8 billion, about one-third of the entire Cambodian GDP! People around the world have turned to micro-finance to sustain their lifestyles (or just to survive) in an era of increasing government austerity, with disastrous results for many borrowers.

In India, the government continues to delay the introduction of effective personal insolvency relief, and it seems concerned with the interests of only the lending sector in formulating a path to relief for "small distressed borrowers." In a story that fills only half a page, consideration of individual or national economic concerns is not mentioned, but it is noted four times that discussion/negotiation with the "microfinance industry" has occurred, whose satisfaction seems paramount to law reformers. Among the "safeguards" put in place to prevent "abuse" of this new relief are (1) the debtor's gross annual income must not exceed about US$450 ($70 per month), (2) the debtor's total debt must not exceed about US$500, and (3) the debtor's total assets must not exceed US$280. While this may well encompass many poor Indian borrowers in serious distress, it offers no relief to what are doubtless many, many "middle-class" Indians similarly pressed to the brink and straining to cope in a volatile economy.

In South Africa, a decades-long fight to implement effective discharge relief for individual debtors has culminated in a half-hearted revision of the National Credit Act (Bloomberg subscription likely required). The long-awaited revision still promises relief only to a small subset of severely distressed borrowers. The bill offers debt discharge only to "critically indebted" debtors with monthly income below US$500 and unsecured debts below US$3400. A step to be applauded, this still leaves many, many South Africans to contend with a complex web of insolvency-related laws that offers little or no relief to many if not most debtors. And still, banks engaged in the typical gnashing of teeth and shedding of crocodile tears, terribly worried that this new dispensation will "drive up the cost of loans for low-income earners, restrict lending and encourage bad behavior from borrowers." Where have we heard this before? To their credit, South African policymakers apparently "made no attempt to interact with the [lending] industry," though the compromise solution here still leaves much to be desired.

On a brighter note, the country of Georgia is on the verge of adopting major reforms to its laws on enforcement and business insolvency (story available only in the really neat Georgian language, check it out!). In an address to parliamentary committees, the Minister of Justice remarked that a new system of personal insolvency is also in development. Georgia suffers from many of the same problems of micro-finance as Cambodia, so perhaps Cambodia and other similarly situated countries will be able to learn from Georgia's example. We'll see what they come up with.

New Guide to Money Judgment Collection/Defense

posted by Jason Kilborn

EyesonthePrizecoverI excitedly tore into a small box this morning containing the first printing of my new book, Eyes on the Prize: Procedures and Strategies for Collecting Money Judgments and Shielding Assets (Carolina Academic Press 2019). Since the advent of the Bankruptcy Code in 1979, the study of how one collects a money judgment (or arbitral award) in law schools has become as rare as an involuntary bankruptcy petition against an individual debtor. But my students (and local lawyers) clamored for treatment of the topic for years, so I decided to do what I could to revive the subject. I was surprised at the diversity of approaches I found among the states (whose enforcement law applies to federal judgments, too, as described in the book), but I think I fairly survey the key variants by concentrating on a detailed exposition of the laws in New York, California, and Illinois, with a smattering of other salient state laws thrown in here and there (Texas, Florida, Pennsylvania, Iowa, etc.). In the past, I've used my state's statutes and a series of hypothetical practice problems (both of which included in this book) for years in my Civil Procedure classes, and the students have voraciously devoured that material. More detailed comparative knowledge has also sharpened my appreciation for how the battle between judicial lienholders and secured creditors works. I tried to offer soup-to-nuts coverage here, from discovery to asset protection to bankruptcy, so I think a lot of readers will find something useful, especially new practitioners who likely learned none of this in law school. A bit more of a preview than appears in the "Look inside" link on CAP's website is available for free download on SSRN, as well. Check it out--and let me know what you think!

Seventh Circuit Smackdown of City of Chicago

posted by Jason Kilborn

The Seventh Circuit Court of Appeals this week released its opinion in In re Fulton, the highly anticipated consolidated appeal of four Chapter 13 cases involving debtors whose cars had been impounded. The City of Chicago had refused to release them to the debtors (exercising the rights of trustee under section 1303) after the petition filings, as clearly required by section 542 and Seventh Circuit precedent, Thompson v. GMAC, 566 F3d 699 (7th Cir. 2009). The Court rejected the City's arguments in favor of repealing Thompson or recognizing a stay/turnover exception for the City to maintain its possessory lien on impounded cars by keeping, well, possession.

The Court reached the right result here, in my view, and two things really jumped out at me. First, the Court explains several times that the case should be governed by "the purpose of bankruptcy - 'to allow the debtor to regain his financial foothold and repay his creditors.'" The Court's emphasis on the debtor-salutary purpose of bankruptcy is refreshing, even in cases where the repaying-creditors purpose is likely to be largely defeated.

More striking were the first lines of the portion of the opinion recounting the facts of Fulton's case. She used the car "to commute to work, transport  her young daughter to day care, and care for her elderly parents on weekends." You can already anticipate where the Court is heading in the case, but then it gets better: "On December 24, 2017, three weeks after she purchased a 2015 Kia Soul, the City towed and impounded the vehicle for a prior citation of driving on a suspended license." Really??!! The City towed and impounded her new car on Christmas Eve!!?? It probably still had a temporary plate indicating it was new. And it got towed for what? A prior citation having nothing to do with the car at all. Note to self, City of Chicago: When the Court opens the fact section with a smackdown recounting @$$hole behavior like this, you can just skip to the end. You lose. Three cheers for the Seventh Circuit again!

Reverse Mortgage Meltdown ... and Gov't Complicity?

posted by Jason Kilborn

USA Today just came out with an interesting expose about reverse mortgages and their negative impact, especially in low-income, African American, urban neighborhoods (highlighting a few in my backyard here in Chicago). I have long been interested in reverse mortgages, touted in TV ads by seemingly trustworthy spokespeople like Henry Winkler and Alex Trebek as sources of risk-free cash for folks enjoying their golden years, and I am always on the lookout for explanations of the pitfalls. Most of these breathless critiques strike me as overkill, but the USA Today story reveals fairly compelling real stories of a few of the ways in which a combination of financial illiteracy and sharp marketing tactics can lead to bad outcomes ranging from rude awakening (heirs having to buy back their childhood homes) to tragedy (simple missed paperwork deadlines leading to foreclosure and an abusive accumulation of default and attorney fee charges).

One line really jumped out at me. In defense of their seemingly hard-hearted and Emersonian-foolish-consistencies-being-the-hobgoblins-of-little-minds conduct, an industry spokesperson deflects, "lenders would prefer to extend the deadlines for older borrowers but fear violating HUD guidelines." Another bank official chimes in, “No matter how heinous or heartbreaking the case, it’s not our call. There’s no wiggle room,” adding that the stress of being unable to behave in a commercially and morally reasonable manner “takes a toll on employees.” [Yes, the unquoted characterization of the rigid lender behavior is mine, not the bank official's].

"Really??!!," I wondered. I wouldn't put any outrage past the Trump administration these days, but forcing banks to foreclose because an elderly surviving spouse overlooked a single piece of paperwork and is prepared to fix the problem a few days past the deadline strikes me as ... hard to believe. Is the government complicit in these reverse mortgage tragedies because it forces lenders to observe rules and deadlines rigidly? If so, how sad and frustrating, and yet another sign of the failures of our modern political stalemate between rational compromise and hysteria, where the latter seems to be winning on all sides.

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