The Department of Education Can Help With Student Loans in Bankruptcy

With the Second Circuit's decision last week regarding private student loans, student loan discharge in bankruptcy is in the news. As Slipster Adam Levitin blogged, the "big picture" effect of this decision--and the 5th and 10th Circuits--is unclear. They could affect a broad swath of private student loans and they possibly could bring more bankruptcy filings to deal with a portion of people's student loan debt. Regardless, though, federal student loans remain presumptively non-dischargeable.

If the people who file bankruptcy with both private and federal student loans (which, I suspect, likely is many people with student loans), debtors will need to bring undue hardship discharge requests. A possible additional effect of these decisions may be to increase undue hardship requests, provided that debtors and attorneys think they are worth making. Research by Jason Iuliano (Utah Law) suggests that debtors may be more successful in these actions than the general public or even many consumer bankruptcy attorneys presume.

For federal students loans, the Department of Education plays a crucial role in undue hardship discharge requests. I recently published an essay in Minnesota Law Review Headnotes, co-authored with Aaron Ament and Daniel Zibel, who co-founded the National Student Legal Defense Network, regarding how the Ed Department should update its internal guidance for determining whether to contest a borrower’s request for an undue hardship discharge. The Ed Department presently seems to be wasting resources going after debtors with little ability to repay, regardless of whether their student loans are discharged. In the essay, we provide two options for how the Department can update its approach to bankruptcies to ensure that it calibrates its actions to make the promise of a fresh start more real for student borrowers.

Second Circuit Holds Many Private Student Loans Are Dischargeable in Bankruptcy

The 2d Circuit this week joined the 5th and 10th Circuits in holding that the discharge exception in 11 U.S.C. § 523(a)(8)(A)(ii) for "an obligation to repay funds received as an educational benefit, scholarship, or stipend" doesn’t cover private student loans, only things like conditional grants (e.g., a ROTC grant that has to be repaid if the student doesn't enlist). It's another important student loan decision. At this point ever circuit to weigh in on the issue has said that private student loans aren't covered under 523(a)(8)(A)(ii).  Instead, a private student loan, if it's going to be non-dischargeable, would have to fit under 523(a)(8)(B), but that provision doesn't cover all private student loans. It only covers "qualified educational loans," which are loans solely for qualified higher education expenses (itself a defined term).

In this case, the debtor alleged that the loan was not made solely to cover his cost of attending college, and the loan was disbursed to him directly. The creditor, Navient, did not claim that the loan qualified as a "qualified educational loan," and instead relied on the 523(a)(8)(A)(ii) exception.The Second Circuit wasn't having any of it.

So what does this mean big picture?

Bankruptcy on Last Week Tonight with John Oliver

The consumer bankruptcy system has made it to late-night television! The main segment on Last Week Tonight with John Oliver this week focused on bankruptcy. As described: "John Oliver details why people file for bankruptcy, how needlessly difficult the process can be, and the ways we can better serve people struggling with debt." Twenty minutes about consumer bankruptcy!

Per usual, it's a well-researched, understandable, and fast-moving segment, with dashes of dark humor. My favorite references Julianne Moore's character in Magnolia. To the well-research part: It is supported by a host of papers about consumer bankruptcy, including the work of several current and former Slipsters. Among them is Portraits of Bankruptcy Filers (forthcoming Georgia Law Review), the most recent article based on Consumer Bankruptcy Project (CBP) data, co-authored with Slipster Bob Lawless and former Slipster Debb Thorne. In Portraits, we rely on data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years.   

Also referenced are Life in the Sweatbox, former Slipster Angela Littwin's The Do-It Yourself Mirage: Complexity in the Bankruptcy System, Slipster Bob Lawless, Jean Braucher, and Dov Cohen's Race, Attorney Influence, and Bankruptcy Chapter Choice, and the ABI Commission on Consumer Bankruptcy's report. The segment closes by highlighting the Consumer Bankruptcy Reform Act of 2020 (and includes a bonus at the end, which you'll have to watch to find out what that's about).

74 Law Professors Sign Letter in Support of the Consumer Bankruptcy Reform Act

Last week, Senator Elizabeth Warren (D-MA) and Representative Jerrold Nadler (D-NY) introduced the Consumer Bankruptcy Reform Act of 2020 (CBRA). As Slipster Adam Levitin detailed, the CBRA proposes a single chapter structure designed to streamline the consumer bankruptcy process. This morning, 74 bankruptcy and consumer law professors sent to Senator Warren a letter in support of the CBRA.

As the letter states, the signatories support the CBRA because it "provides a thoughtful, workable, and comprehensive response to the problems that plague the current consumer bankruptcy system." Before I discuss the letter further, a disclosure: I spearheaded this letter and circulated it among bankruptcy and consumer law scholars for signature.

In detailing our support of the CBRA, the letter points out the key ways in which the current consumer bankruptcy system can fail to provide effective relief and can shut people out because they cannot afford an attorney. Adam's recent post discusses research about substantial regional differences in the use of bankruptcy and the disparate use of chapter 13 by Black households--and the consequences of these differences on bankruptcy's uniformity and on access to justice. The CBRA will simplify the filing process, reduce fees, and address racial and gender disparities. Its new chapter 10 will allow people to address their most pressing concerns, whether that be keeping homes, keeping cars, staying in rental property, or discharging debts. It also provides for a discharge of student loan debt. And it addresses debt collection in bankruptcy cases by expanding the FDCPA and giving the CFPB some supervision and enforcement authority in consumer bankruptcy cases.

Importantly, as noted at the end of the letter, the new single chapter is not a free ride. People who can pay will not be able to walk away from their obligations. Overall, the CBRA will address systemic issues and other problems that plague the current consumer bankruptcy system. Find the full letter from law professors here.

The Consumer Bankruptcy Reform Act of 2020

Today Senators Elizabeth Warren (D-MA), Dick Durbin (D-IL), and Sheldon Whitehouse (D-RI) and Representatives Jerrold Nadler (D-NY) and David Cicilline (D-RI) introduced the Consumer Bankruptcy Reform Act of 2020. This is the first major consumer bankruptcy reform legislation to be introduced since the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Whereas BAPCPA introduced a number of major, but targeted reforms to consumer bankruptcy law (and also a few business bankruptcy provisions as well), the CBRA is a much more ambitious bill:  it proposes a wholesale reform of the structure of consumer bankruptcy law with an eye toward reduces the costs and frictions that prevent consumers from being able to address their debts in bankruptcy.

This is a long post with an extended overview of the bill. The bill's sponsors have a one-page version or a two-page summary, but I figure you're here at the Slips because you just can't get enough bankruptcy law, and we're happy to oblige. Let me start with a disclosure, though. I was privileged to provide assistance with the bill, along with several other Slipsters. That means I know what's in it, and I think it's a really good and important piece of legislation that I hope will become law. 

A New Chapter 10 for Consumer Bankruptcy (Eliminating Consumer 7s and Chapter 13) 

Whereas consumer bankruptcy has long existed in two primary flavors—liquidations (chapter 7) and repayment plans (chapter 13)—the CBRA proposes a single chapter structure (a new chapter 10).  Under the CBRA, individual debtors would no longer be eligible for chapter 7, and chapter 13 would be repealed in its entirety. All individual debtors with debts of less than $7.5 million would be eligible for chapter 10; those with larger debts would have to file for 11 (or 12 if they qualify).  It's important to keep this structure in mind when evaluating the CBRA. While the CBRA takes elements from chapters 7 and 13, the CBRA is not trying to replicate existing 7 or 13. That means if you come to CBRA with a mindset of "wait, that's not how we do it in 13," well, yeah, that's kind of the point. 

The CBRA is a huge bill (188-pages) with a lot of provisions. In addition to the new chapter 10, it also contains amendments to numerous provisions in chapters 1, 3, and 5 of the Bankruptcy Code, as well to certain federal consumer financial protection statutes. I'm not going to try to cover everything in detail, but I want to cover how chapter 10 would work, as well as some of the highlights from other provisions. This is a very long post, but I think it's important for there to be a clear statement of how chapter 10 would work because there will undoubtedly be some misinterpretations of the bill, and I'd like to see consideration of the bill be on its actual merits.  

For Your Bankruptcy Class or Presentation

OK, bankruptcy mavens. What is this a map of? Answer below the fold.

CARES Act "Rebates" and Bankruptcy

Related to Pamela's last post and our article regarding garnishments and the CARES Act "rebates," the US Trustee issued a notice to Chapter 7 and Chapter 13 trustees giving them guidance on what to do about them in a bankruptcy case.

The top line: these payments should not be included in the statutory definitions of "current monthly income" or "disposable income" per the CARES Act itself. But the Act failed to discuss whether these payments are property of the estate, which typically would mean that they are. I know bankruptcy lawyers have been dealing with this already and many feared that some trustees would try to obtain these mounts. I was therefore very pleased to read this in the US Trustee notice, in particular the part in bold:

Regardless of whether the rebate is property of the estate, the United States Trustee expects that it is highly unlikely that the trustee would administer the payment after consideration of all relevant circumstances ... Trustees are directed to notify the United States Trustee prior to taking any action to recover recovery rebates or objecting to a chapter 13 plan based on the treatment of recovery rebates.

Debt Limits ... and Poison Pills

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.

"Middle Class Faux"?

I did some digging into Joe Biden's previously unexplored roll call vote on floor amendments to BAPCPA. They were ugly then and have not improved with age. My full take is in The American Prospect. 

Consumer Bankruptcy, Done Correctly, To Help Struggling Americans

Today, Senator Elizabeth Warren unveiled her new plan to reform the consumer bankruptcy system. The plan is simple, yet elegant. It is based on actual data and research (including some of my own with Consumer Bankruptcy Project co-investigators Slipster Bob Lawless, former Slipster, now Congresswoman Katie Porter, and former Slipster Debb Thorne). Most importantly, I believe it will make the consumer bankruptcy system work for American families. And, as a bonus, it will tackle the bad behavior that big banks and corporations currently engage in once people file, like trying to collect already discharged debts, and some non-bankruptcy financial issues, such as "zombie" mortgages.

In short, the plan provides for one chapter that everyone files, combined with a menu of options to respond to each families' particular needs. It undoes some of the most detrimental amendments that came with the 2005 bankruptcy law, including the means test. In doing so, it sets new, undoubtedly more effective rules for the discharge of student loan debt, for modification of home mortgages, and for keeping cars. It also undoes "smaller" amendments that likely went unnoticed, but may have deleterious effects on people's lives. Warren's plan gets rid of the current prohibition on continuing to pay union dues, the payment of which may be critical to allowing people who file bankruptcy to keep their jobs and keep on their feet. Similarly, the plan eliminates problems debtors face paying rent during their bankruptcy cases, which can lead to eviction.

One chapter that everyone files means that the continued racial disparities in chapter choice my co-authors and I have documented will disappear. No means test, combined with less documentation, as provided by Warren's plan, means that the most time-consuming attorney tasks will go away. Attorney's fees should decrease. Warren's plan also provides for the payment of fees over time. People will not have to put off filing for bankruptcy for years while they struggle in the "sweatbox." Costly "no money down" bankruptcy options should disappear. People will have the chance to enter the bankruptcy system in time to save what little they have, which research has shown is key to people surviving and thriving post-bankruptcy.

Supreme Court Grants Cert To Decide Fate of Repossessed Cars in Bankruptcy

Yesterday, the SCOTUS granted certiorari in City of Chicago v. Fulton, 19-357, to resolve a circuit split about whether a creditor's inaction in not returning property repossessed pre-petition can violate the automatic stay. The split arises predominately from chapter 13 cases in which, pre-petition, creditors repossessed or cities impounded debtors' cars. As the petition for cert stated, this issue is of significant practical importance. As Slipster Bob Lawless, former Slipster Debb Thorne, and I set forth in our new paper based on Consumer Bankruptcy Project data, Driven to Bankruptcy (Wake Forest Law Review, forthcoming 2020), bankruptcy courts deal with more than a million cars in every year. Creditors will have repossessed, but not disposed of some of those cars, and cities (for instance, Chicago) and municipalities will have impounded some of those cars.

In our new paper, we note that bankruptcy seems to be an important tool for some people to keep their cars, including getting their cars back from creditors and impound yards. As will be decided by the Supreme Court in addressing the issues regarding the automatic stay raised by the circuit split, if debtors need to request that bankruptcy courts order creditors or cities to return their cars after they file bankruptcy, the usefulness of filing bankruptcy will decrease, potentially significantly. Stated differently, people need their cars now -- to get to work, to get food, to get their kids to daycare, to get to the doctor. For some households, one of the biggest benefits of filing bankruptcy seems to be that their creditors must turn over repossessed and impounded cars as soon as the debtor files . The question now is -- is that actually what the Code provides? 

Bankruptcy Filing Rate Remains Flat

Every month I see stories about the bankruptcy rate moving up and down. The truth is that the U.S. bankruptcy filing rate has remained flat over about the past four years.

The table to the right shows the total number of bankruptcy filings, consumer and business, using data from Epiq. For 2019, the figure is an estimate. For each of the past two years, 85.3% of the yearly bankruptcy filings had occurred by October 31. Extrapolating from the 648,000 bankruptcy filings through October 31 of this year, the total number of bankruptcy filings by year end will be about 760,000. That is not much different than the 767,000 in 2017 or the 755,000 in 2018.

There's Still Time to Register for NCBJ 2019

The National Conference of Bankruptcy Judges' annual conference is happening soon – Wednesday, October 30 through Saturday, November 2. I'm delighted to be part of this year's education committee. The 2019 conference features some panels that include Slipsters and touch on Slipsters' research. (If you're thinking of attending, "semi early bird" registration, with its lower costs, ends at the end of September.)

Particularly noteworthy is the American Bankruptcy Law Journal symposium, "Equitable Powers of the Bankruptcy Court 40 Years After the Enactment of the Bankruptcy Code," which will be framed as a mock-Senate Judiciary Committee hearing during which a panel of experts will discuss and debate bankruptcy courts' equitable powers. The symposium features Slipsters Jay Westbrook and Melissa Jacoby.

Also worthy of mention are two panels that deal with consumer bankruptcy hot topics, both of which happen to touch on issues that recent papers analyzing Consumer Bankruptcy Project data have considered in depth. First is a panel titled, "Porsches and Clunkers – A Road Trip Through Car Issues." The description for the panel asserts, "many consumers file chapter 13 petition to save their cars, which are essential to maintaining their jobs." In our latest article, Driven to Bankruptcy, Slipster Bob Lawless, past Slipster Debb Thorne, and I rely on Consumer Bankruptcy Project data to assess the veracity of that assertion (among other questions related to cars, car loans, and bankruptcy). As detailed in my recent post about that article, we find a subset of bankruptcy cases that may be labeled "car bankruptcies," in which the debtor owns a car (or cars) and little else. In these cases particularly, debtors may find themselves in chapter 13 to save their cars.

Driven to Bankruptcy — New Research from the Consumer Bankruptcy Project

In America, people drive — to work, to the doctor, to the grocery store, to their kids' daycare, to see their aging parents. Research shows that car ownership increases the probability of employment and number of hours worked; households without cars have lower incomes and are more likely to be in poverty. In short, cars are essential. Household financial distress can threaten people's cars, and with them, the day-to-day stability that car ownership brings. People thus may file bankruptcy, in part, to save their cars.

Although there is a substantial literature on financial distress and home ownership, the literature on car ownership, financial distress, and bankruptcy is thin. In Driven to Bankruptcy (available via SSRN, forthcoming in the Wake Forest Law Review), Slipster Bob Lawless, past Slipster Debb Thorne, and I document what happens to car owners and their car loans when they enter bankruptcy.

In brief, we find that people who file bankruptcy own automobiles at the same rate as the general population. This means that over the last ten years, 15.1 million people filed for bankruptcy owning 16.4 million cars. The majority of these cars, particularly a household's most valuable car, entered bankruptcy encumbered with a hefty loan. And most debtors want to keep their cars, particularly their most valuable and second most valuable cars.

Small Borrowers Continue to Struggle Without Relief

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.

What Is "Credit"? AfterPay, Earnin', and ISAs

A major issue in consumer finance regulation in mid-20th century was what counted as “credit” and was therefore subject to state usury laws and (after 1968) to the federal Truth in Lending Act. Many states had a time-price differential doctrine that held that when a retailer sold goods for future payment, the differential between the price of a cash sale and that of credit sale was not interest for usury law purposes. State retail installment loan acts began to override the time-price doctrine, however, and the federal Truth in Lending Act and regulations thereunder eventually made clear that for its purposes the difference was a “finance charge” that had to be disclosed in a certain way. 

 

Today, we seem to be coming back full circle to the question of what constitutes “credit.” We’re seeing this is three different product contexts: buy-now-pay-later products like Afterpay; and payday advance products like Bridgit, Dave, and Earnin’; and Income-Sharing Agreements or ISAs (used primarily for education financing). Each of these three product types has a business model that is based on it not being subject to some or all “credit” regulation. Whether those business models are well-founded legally is another matter.

 

Let me briefly recap what is “credit” for different regulatory purposes and then turn to its application to the types of products.

Seventh Circuit Smackdown of City of Chicago

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!

Consumer Bankruptcy Reform ... and American Xenophobia?

I hope I'm not stepping on Bob's toes in announcing the public release of the long-awaited report of the ABI Commission on Consumer Bankruptcy. The Commission, with Credit Slips' own inimitable Bob Lawless as its reporter, was formed in December 2016 to explore revisions to the US consumer bankruptcy system that would improve the operation of its existing structure; that is, evolution, not revolution. With this explicitly limited charge, one would not necessarily expect to find much high-level discussion of how the US approach squares with or fits within the many recent global developments in consumer insolvency relief, and one would expect to see a concentration on local solutions for local stumbling blocks.

That being said ... and in no way to detract from the monumental amount and truly impressive nature of the work the Commission has done here ... one might have expected to see a bit of discussion, if not even a touch of inspiration, from comparative sources. In 1970, the Bankruptcy Commission rejected any consideration of foreign developments in consumer bankruptcy, in part because there were few such developments, and in part because so little was known about the operation of non-US bankruptcy law at the time (for those younger than I, note that neither home computers nor the public Internet existed in 1970 ...). Nearly 50 years later, we now have at our fingertips a mountain of comparative data and analysis on the development, operation, and revision of consumer insolvency systems around the world, much of it reported in English specifically to make it widely available to law reformers like the ABI Commission. Again, one would not have expected this comparative material to occupy center stage in a reform of largely US problems in the uniquely US consumer bankruptcy system. But in a bit part here and there, some comparative observations might have supported the Commission's already compelling recommendations.

Arbitration in Bankruptcy -- Discharge, the Easy Case

Now that the major work of the ABI Commission on Consumer Bankruptcy is done, I seem to have this thing called "time" again. One of the topics that I have been wanting to post about is arbitration in bankruptcy. If I follow through on my intentions, this will be the first of a few posts on arbitration in bankruptcy.

Arbitration has come to the bankruptcy courts. In the coming years, how the Federal Arbitration Act intersects with the Bankruptcy Code will become an increasingly prominent issue. What I want to talk about in this post is arbitration of a violation of the discharge injunction itself. In the typical factual set-up, a debtor alleges a violation of the discharge injunction, and the creditor moves to send the question to an arbitrator under a predispute arbitration clause, almost always embedded in a form contract. Given the ubiquity of these form contracts in consumer transactions, the only thing at stake is the effectiveness of the consumer bankruptcy system.

We can first exclude one approach to the topic that I occasionally see. It goes something like this. The Supreme Court keeps sending disputes to arbitration and thus has signaled repeatedly it favors arbitration. Therefore, the Court would hold that bankruptcy disputes can be arbitrated. This is not how law works. The Court's tendencies are not "law." One of the Supreme Court justices has famously declared he favors a certain malted beverage, but that hardly makes it the drink of the land (although I also would not be against making it so).

ABI Consumer Commission Report Is Nearly Finished

For the past two years, the American Bankruptcy Institute's Commission on Consumer Bankruptcy has been hard at work. As the Commission's reporter, I am very happy to say that the work is nearly finished. All of the drafting is completed, and we are in the final stages of the editing process.

The report will be released on April 11. If you want to learn about the report, come to the ABI's Annual Spring Meeting where there will be a number of sessions about the report.

The Commission's charge was to recommend "improvements to the consumer bankruptcy system that can be implemented within its existing structure." The recommendations represent the work of a broad group of bankruptcy professionals across all types of roles and types of practice. The report will have forty-nine sections across five chapters, with multiple recommendations in many of the sections. Although the substance of the recommendations will not be released until April 11, the topic list is public. You can expect recommendations on student loans, attorney compensation, the means test, rights in repossessed collateral, chapter 13 plans as well as many other topics.

New (From the Archives) Paper on Determinants of Personal Bankruptcy

This working paper is a longitudinal empirical study of lower-income homeowners, including a subset of bankruptcy filers, produced with an interdisciplinary team of cross-campus colleagues, including Professor Roberto Quercia, director of UNC's Center for Community Capital. We just posted this version on SSRN for the first time yesterday in light of continued interest in its questions and findings. The abstract does not give too much detail (see the paper for that), but here it is:

Personal Bankruptcy Decisions Before and After Bankruptcy Reform

Abstract

We examine the personal bankruptcy decisions of lower-income homeowners before and after the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). Econometric studies suggest that personal bankruptcy is explained by financial gain rather than adverse events, but data constraints have hindered tests of the adverse events hypothesis. Using household level panel data and controlling for the financial benefit of filing, we find that stressors related to cash flow, unexpected expenses, unemployment, health insurance coverage, medical bills, and mortgage delinquencies predict bankruptcy filings a year later. At the federal level, the 2005 Bankruptcy Reform explains a decrease in filings over time in counties that experienced lower filing rates.

Pets and Financial Distress

Last weekend, The New York Times published an opinion piece about animal shelters, Are We Loving Shelter Dogs to Death? It highlighted the sad reality that nationwide shelters are horribly overcrowded. According to the piece, a "big part" of shelters' overcrowding "is poverty: An estimated one-quarter of shelter animals are there after their owners have surrendered them because of family dysfunction or financial pressure." For instance, a family might not have enough money for vet bills. Or a family must relocate to less expensive housing that does not accept pets. The example in the piece that stood out to me most was families' inability to pay fees and fines related to their pets being picked up by animal control.

Reading the piece -- particularly the parts about fines -- led me to wonder more about pets and financial distress and bankruptcy. And to a broad question for Credit Slips readers. What have been your experiences regarding pets and financial distress, both pre-bankruptcy and in bankruptcy?

Older Americans’ Rising Bankruptcy Filings

Older Americans (age 65 and over) are increasingly likely to file bankruptcy and now comprise a larger proportion of the people who file bankruptcy -- and the effects are not small. Using data from the Consumer Bankruptcy Project, in a new working paper just posted to SSRN -- Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society -- my co-authors (past Slipster Debb Thorne, Slipster Bob Lawless, and past Slipster Katie Porter) and I find a more than two-fold increase between 1991 and now in the rate at which older Americans file bankruptcy. We further find an almost five-fold increase in the percentage of older persons in the bankruptcy system. The magnitude of growth in older Americans in bankruptcy is so large that the broader trend of an aging U.S. population can explain only a small portion of the effect.

In the paper, we link older Americans’ increased filing rates with the shrinking social safety net. A story published today in the New York Times (on actual paper and on the front page!) does an exceptional job of both describing our study and detailing the ways in which the risks of aging have been off-loaded onto older Americans: “vanishing pensions, soaring medical expenses, inadequate savings.” The story also highlights the financial and life travails of a few older Americans who filed bankruptcy. Their struggles stem from declining income, lost insurance, and unmanageable medical expenses.   

Access to Justice, Consumer Bankruptcy Edition

The Great Recession, the CFPB's creation, the rise of debt buying, changes in the debt collection industry, and advances in data collection have encouraged more research recently into issues of access to justice in the context of consumer law and consumer bankruptcy. This spring, the consumer bankruptcy portion of the Emory Bankruptcy Development Journal's annual symposium focused on access to justice and "vindicating the rights of all consumers." Professors Susan Block-Lieb, Kara Bruce, Alexander Sickler, and I spoke at the symposium about how a range of consumer law, finance, and bankruptcy topics converge as issues of access to justice.

We recently posted our accompanying papers (detailed further below) to SSRN. My essay overviews what we know about the barriers people face entering the consumer bankruptcy system, identifies areas for further research, and proposes a couple ideas for improving access to bankruptcy. Susan Block-Lieb’s essay focuses on how cities can assist people dealing with financial troubles. And Kara Bruce’s and Alex Sickler’s co-authored essay reviews the state of FDCPA litigation in chapter 13 cases in light of Midland Funding v. Johnson and explores alternatives to combat the filing of proofs of claim for stale debts.

Combatting Fear of Abuse--A Sisyphean Task?

Over the past few weeks, at conferences with judges and policymakers in Varna (Bulgaria), Seoul, and Beijing, I've been confronted with a surprising degree of skepticism about personal insolvency systems and fear of opportunistic individuals abusing the ability to evade their debts (especially while hiding assets). I've pointed out the interesting progression identifiable in Europe in recent years of a marked relaxation of such fear of abuse, especially in places like France and most recently Slovakia, which have gone all the way to adopting a very US-like open-access system to immediate discharge. For the real skeptics--and they are numerous in Bulgaria and China, both of whom are considering adopting their first personal insolvency laws--these arguments seem to fall on more or less deaf ears. Detractors put me in a no-win situation by offering one of two rejoinders: (1) the incidence of discovered abuse is low in these systems because debtors are crafty or anti-abuse institutions are weak, or (2) anti-abuse institutions like the means test and restrictive access hurdles are successfully dissuading abusers from seeking access, so we need more--not less--of this kind of effort (which I've criticized as wasteful, unnecessary, and counterproductive). A common third response is the classic "we're different" position--that is, any comparative empirical evidence from elsewhere is irrelevant to the new, entirely unique context of [insert skeptical country's name here].

More on "Undue Hardship" and Student Loans in Bankruptcy

Following up on Bob's post earlier this week about the Department of Education's request for information (RFI) regarding evaluating "undue hardship" claims in adversary proceedings to discharge student loans, a group of 23 academics, including myself, also submitted written comments in response. The effort was spearheaded by Slipster Dalié Jiménez. Matthew Bruckner (Howard Law), Brook Gotberg (Missouri Law), and Chrystin Ondersma (Rutgers Law) also were part of the drafting team.

Our primary recommendation is that the Department establish ten categories of borrower circumstances under which the Department would agree to the borrower’s discharge of federal student loans. As with the ABI Commission on Consumer Bankruptcy's comments (and the National Bankruptcy Conference's comments), our categories are designed to offer objective criteria for when the Department should agree to a discharge of student loans. The overall aim of the proposal is to establish clear, easy-to-verify, dire circumstances that merit the Department’s acquiescence to a student loan discharge and thereby promote the efficient use of taxpayer funds. To this end, we also recommend that the Department accept "reasonable proof" that a borrower fits into one of the ten categories without engaging in formal litigation discovery. Our response also calls on the Department to collect and release more data about federal student loans.

The underutilized student loan bankruptcy discharge

A common misconception is that student loans are never dischargeable in bankruptcy. There is a bankruptcy discharge exception for some qualified student loans and educational benefit repayment obligations. The discharge exception does not, however, apply to all loans made to students. Jason Iuliano argues in a new paper that bankruptcy courts have interpreted the discharge exception too broadly, applying it to loans for unaccredited schools, loans for tutoring services, and loans beyond the cost of attendance for college. His paper presents a compelling argument based on the plain language of the statute, the legislative history and policy in support of a narrow reading of 11 USC §523(a)(8).

The Bankruptcy Court for the Southern District of Texas recently adopted the narrow reading of §523(a)(8)(A)(ii) in Crocker v. Navient Solutions, LLC , Adv. 16-3175 (Bankr. S.D. Tx Mar. 26, 2018). The court denied Navient's motion for summary judgment, finding that the bar exam study loan from SLMA at issue was not within the discharge exception for qualified student loans or educational benefit repayments.

In another class action complaint filed last year against Sallie Mae and Navient, plaintiffs claim that servicers are systematically defrauding student loan debtors about their bankruptcy discharge rights. According to the complaint in Homaidan v. Sallie Mae, Inc. (17-ap-01085 Bankr. EDNY), servicers illegally continued collecting private student loans that were fully discharged in debtor bankruptcies because they were not qualified educational loans. The servicers exploited the common misconception that "student loans" writ large are excluded from bankruptcy discharge. The defendants' motion to dismiss or compel arbitration is pending.

Professor Iuliano has also demonstrated in a prior paper that even student loans covered by the bankruptcy discharge exception can still be discharged based on showing "undue hardship," and that courts are far more likely to approve undue hardship discharges than many debtors (and lawyers) may realize.

Fed chair Powell to Congress - make student loans dischargeable in bankruptcy

Coverage of Federal Reserve Chairman Jerome Powell's Congressional testimony highlighted his optimism about economic growth and its implications for future interest rate hikes. Less widely covered were his brief remarks on the student loan debt crisis. Citing the macroeconomic drag of a trillion-and-a-half dollar student loan debt, chairman Powell testified that  he "would be at a loss to explain" why student loans cannot be discharged in bankruptcy. According to Fed research, Powell noted, nondischargeable student loan debt  has long-term negative effects on the path of borrowers' economic life.

People’s Pre-Bankruptcy Struggles -- New Paper from the Consumer Bankruptcy Project

The current Consumer Bankruptcy Project (CBP)’s co-investigators (myself, Slipster Bob Lawless, and past Slipsters Katie Porter & Debb Thorne) just posted to SSRN our new article (forthcoming in Notre Dame Law Review), Life in the Sweatbox. “Sweatbox” refers to the financial sweatbox—the time before people file bankruptcy, which is when they often are on the brink of defaulting on their debts and lenders can charge high interest and fees. In the article, we focus on debtors’ descriptions of their time in the sweatbox.

Based on CBP data, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. Two-thirds of people who file bankruptcy reported struggling with their debts for two or more years before filing. One-third of people reported struggling for more than five years, double the frequency from the CBP’s survey of people who filed bankruptcy in 2007. For those people who struggle for more than two years before filing—the “long strugglers”—we find that their time in the sweatbox is marked by persistent debt collection calls, the loss of homes and other property, and going without healthcare, food, and utilities. And although long strugglers do not file bankruptcy until long after the benefits outweigh the costs, they still report being ashamed of needing to file.

Lularoe, Other Multi-Level Marketing Companies, and Bankruptcy Filings

Several days ago, Stephanie McNeal at BuzzFeed News published a short piece on Lularoe's intersection with consumer bankruptcy filings. I've blogged about multi-level marketing (MLM) companies' potential role in bankruptcy filings a couple times. So when BuzzFeed sent me a list of twenty-four chapter 7 and chapter 13 bankruptcy filings from the past two years in which the debtor listed Lularoe as a part of its DBA or FDBA, I was intrigued. Much of what I could glean from the sample of those petitions and schedules I reviewed is in the short piece. The debtors' reports of past years' income from their Lularoe businesses show a precipitous decline in income, some schedules include unsecured loans from online lenders (seemingly to fund purchases of inventory), and most schedules include a large amount of credit card debt. The debtors also are overwhelmingly married with children, and the couples together owe quite a bit in student debt (over $50,000 on average).

Of course, as the story notes, there likely are many more filings stemming, in part, from Lularoe businesses, and these cases very likely are not representative of all the cases. But it was interesting to review them nonetheless. Lularoe reminds me very much of Rodan + Fields and Herbalife, two other well-known MLMs. Which led me to run the same search that BuzzFeed ran for Rodan + Fields and Herbalife. 

Come Talk to the ABI Consumer Bankruptcy Commission at NABT

As careful Credit Slips readers will remember, I was inflicted on the American Bankruptcy Institute's Commission on Consumer Bankruptcy as the Commission's reporter. Things are off to a roaring start. Taking the suggestions of many different stakeholders in the consumer bankruptcy system, the Commission has developed a list of topics and assigned them to different committees. In turn, the committees have broken down into working groups to study the issues.

The Commission and its committees already have had two successful public meetings, hearing from persons at the annual meeting for the National Association of Consumer Bankruptcy Attorneys (NACBA) in Orlando, Florida, and from persons at the annual seminar for the National Association of Chapter 13 Trustees (NACTT) in Seattle, Washington. The Commission web site has videos and, where available, written statements from both the NACBA meeting and the NACTT meeting.

The next public meeting is for the Commission's Committee on Chapter 7, which will occur on September 15 at the annual meeting for the National Association of Bankruptcy Trustees in New Orleans, Louisiana. Come talk to us. Subject to time availability, we hope to allow participants to make statements of about five minutes each. Written statements are very welcome and encouraged. Further details appear in the call for participation on the Commission web site. For full consideration, requests to participate must be received by September 6.

Midland Got It Right (Sort Of)

The Supreme Court got it right in Midland Funding LLC v. Johnson, which holds that it is not a violation of the Fair Debt Collection Practices Act to file a proof of claim in a Chapter 13 bankruptcy based on a debt whose statute of limitations has expired.  

I suspect that I might be the only bankruptcy professor whose name doesn't start with the last two letters of the alphabet who isn't outraged by Midland (which gives a nice shout out to our former co-blogger Katie Porter's scholarship!), and I'm going to catch hell for writing this, but one of the great things about tenure is that I can say things like this.  So here goes.  I don't think Midland is a very persuasive opinion; it's not the reasoning I would adopt, but I think it gets the right answer, even if it is uncomfortable as a policy result (it's hard to defend an industry whose economics are dependent upon careless trustees and debtors). 

How to Get Involved with the ABI Consumer Commission

As Jason Kilborn noted last month, the American Bankruptcy Institute (ABI) has formed a Commission on Consumer Bankruptcy. More information about the Commission is available on its web site including the unfortunate news that it got saddled with me as the reporter. We very much invite input and suggestions about the Commission's work. Right now is an especially good time to get involved as the Commission sets its agenda.

The ABI has charged the Commission with "researching and recommending improvements to the consumer bankruptcy system that can be implemented within its existing structure. These changes might include amendments to the Bankruptcy Code, changes to the Federal Rules of Bankruptcy Procedure, administrative rules or actions, recommendations on proper interpretations of existing law and other best practices that judges, trustees and lawyers can implement."

$45 Million for Stay Violations

How much in punitive damages is enough to punish unlawful conduct and deter its repetition? $45 million was one bankruptcy court's opinion, in the case of a wrongful home foreclosure and eviction in knowing violation of the automatic stay.

The court described the plaintiff-debtors’ treatment by defendant Bank of America as Kafkaesque, and found their deeply emotional testimony (one of them attempted suicide during the ordeal) completely credible, awarding more than $1 million in actual damages for the loss of housing and emotional distress. The court also noted that Bank of America had repeatedly settled cases with federal and state regulators for hundreds of millions, and even billions, of dollars, in recognition of serious and repeated compliance failures, including some related directly to servicing home mortgages.  

The fascinating 107-page opinion grapples at length with the dilemma of awarding enough punitive damages to effectively deter the defendant while avoiding an unseemly windfall to the plaintiffs. The solution: the decision awards $40 of the $45 million punitive award to consumer advocacy organizations and the five public California law schools. Citing an Ohio case, state statutes and several law review articles, the court proposes this split award technique as an appropriate step forward in the federal common law of §362(k) punitive damages. An interesting appeal is sure to follow.

New ABI Commission on Consumer Bankruptcy

The American Bankruptcy Institute announced this morning that it has convened a commission to study and propose reforms of the US consumer bankruptcy system. In light of the success of ABI's Chapter 11 commission, we can expect big things from this commission on Chapters 7 and 13. Some major names in consumer bankruptcy are among the 15 members of the commission, and Credit Slips is well represented, with Bob Lawless as Reporter and Katie Porter on the membership roster, along with one more super-prominent academic, professor-cum-judge-cum-professor Bruce Markell, now of Northwestern. I wish the commission had consulted Bob about its name. He would have pointed to his empirical work on small business debtors to suggest that this be called a personal bankruptcy commission, rather than consumer, but perhaps the inclusion of a good deal of small business debtors and business-related debts is taken as a given. Anyway, best wishes to the commission--we'll eagerly await its first reports and calls for comments!

New Article from the Consumer Bankruptcy Project: Attorneys’ Fees and Chapter Choice

Many of us on Credit Slips have been part of the Consumer Bankruptcy Project (CBP), a long-term research project studying people who file chapter 7 and 13 bankruptcy. Several years ago, some of us blogged about the writings from the last CBP iteration in 2007.  In 2013, the CBP was relaunched as an ongoing data collection effort. The CBP’s current co-investigators – myself, Bob Lawless, Katie Porter, and Debb Thorne – recently posted “No Money Down” Bankruptcy, the first article analyzing data from the Current CBP (data from 2013-2015), combined with 2007 CPB data. The article focuses on the timing of when debtors are required to pay their bankruptcy attorneys to report on the increasingly prevalent phenomenon of debtors paying nothing in attorneys’ fees before filing chapter 13.

This nationwide phenomenon raises questions about how people are accessing bankruptcy and the extent of the benefits they receive from the system. The phenomenon also explains some prior findings about the intersection of race and bankruptcy filings. And it adds to our knowledge about regional disparities in the percentage of people who file chapter 7 versus chapter 13 bankruptcies.

Homestead Proceeds in Bankruptcy

California's tiered homestead exemption protects a debtor's dwelling to the extent of $75,000, $100,000, or $175,000, depending upon the debtor's status, protects a like amount of proceeds of an execution sale of the homestead for six months following sale, and protects a dwelling acquired with the proceeds within the six-month period. Cal. Code Civ. Pro. §§ 704.710 – 704.730. The short six-month window seriously undermines Chapter 7 relief to a California debtor who would be willing to sacrifice non-exempt equity in a dwelling, such as a surviving spouse, recently widowed, who is burdened with unmanageable unsecured debt and can no longer afford mortgage payments.

In the Ninth Circuit, following a Chapter 7 trustee's sale of a dwelling, the debtor's right to retain the exempt proceeds evaporates, and the right to the proceeds reverts to the trustee, if the debtor fails to reinvest the proceeds in a new dwelling within six months after receiving proceeds of the sale. Wolfe v. Jacobson (In re Jacobson) (9th Cir. 2012). The six-month window assumes a debtor's ability to purchase a replacement dwelling within the specified period. In many locations, including coastal California's urban areas, the amount of protected proceeds will be sufficient, at best, for a down payment. Unless the debtor moves to a less expensive part of the state or country, financing would be essential. But Freddie Mac and Fannie Mae will not purchase mortgage secured loans made within four years of a Chapter 7 discharge (two years with extenuating circumstances) and the FHA will not insure such loans made within two years of a Chapter 7 discharge unless the debtor qualifies under the FHA's back to work program. Some specialized lending programs targeting specific categories of debtors (e.g. veterans) may be more forgiving, but otherwise it is difficult to imagine a lender willing to finance purchase of a dwelling by a recent Chapter 7 debtor if the loan is neither insured nor salable in the secondary market.

Linking Pyramid Schemes (aka Multilevel Marketing Companies) and Consumer Bankruptcy

A couple weeks ago, on Last Week Tonight, John Oliver started what promises to be the greatest pyramid scheme ever. In an effort to help him, watch the segment here (warning: language). More seriously, multilevel marketing companies that sell products directly to customers through salespeople working out of their homes (Herbalife, Amway, Nu Skin, the relatively new Rodan + Fields) operate by way of a concerning sales structure. Salespeople recruit salespeople, who recruit more salespeople, who recruit yet more salespeople. The salespeople at the top make money off of the salespeople at the bottom. And the salespeople at the bottom often are left with stockpiles of soon-to-expire product in their homes and garages. Indeed, as noted by John Oliver, in July of this year, Herbalife consented to a $200 million settlement with the FTC in which they agreed to change their business tactics. When asked about Herbalife's business model, FTC Chairwoman Ramirez said, "they were not determined not to be a pyramid."  

Now, the potential (probable?) connection to bankruptcy filings. There is evidence that people sign up to sell these products because they need to make extra money--which makes sense. Signing up to be a salesperson for a multilevel marketing company could be one of many coping tactics used by someone hopelessly deep in debt. Get a second job, sell some belongings, go without insurance or food . . . and try to sell products from your home. People may get the idea from friends or financial gurus. For instance, Dave Ramsey's website has a page titled, "Guide to Joining a Multilevel Marketing Company," which includes some of the same inspirational, "go-getter," pull yourself up by your own bootstraps, you hold the key to your own success language that accompany Facebook posts that try to entice people to join Rodan + Fields. Of course, that means it is your fault when you fail, right?

Disrupting consumer bankruptcy law practice

     Imagine a conversation with Siri (or other digital assistant), circa 2040, that begins as follows:

        Mariana: Siri. I am wondering whether I should file bankruptcy. What do you think?

Siri: Have you considered meeting with a consumer bankruptcy lawyer to discuss that?

Mariana: I've already contacted a few, but all of them charge more than I can afford.

Siri: I understand. I've talked with many other people who say the same thing, and many people file bankruptcy without consulting a lawyer. So let me see if I can help you. Why are you thinking about bankruptcy?

Mariana: I can't pay my medical bills and I got a notice from a collection agency about garnishing my wages. My credit card debts keep growing because I can't even pay the monthly interest, and my student loan debt is still large.

Siri: I imagine that this is pretty stressful for you and I think it is a good idea to consider ways in which you might be able to deal with these problems.

Mariana: Thanks for understanding. And I am losing sleep over this and also having trouble concentrating at work. What do you suggest?

Siri: Let's start by creating some spreadsheets that show your income, your living expenses, your debts, and what you own. You will probably have to dig up some of this information and get back to me, but we can at least start now.

Mariana: O.K. I've got some time now. How do we do this?

Siri: Turn on your television monitor and I'll show you some spreadsheets that we can fill in.

Mariana: O.K. Done.

Siri: Good. I see you now. You do look quite upset.

Mariana: [Shakes her head agreeing with Siri].

Siri: Do you want to talk a little bit more about how this is affecting you before getting started?

Mariana: No. Let's get started now.

     Siri proceeds over the next couple of days to interview and counsel Mariana as would today's consumer bankruptcy lawyer (and staff). Siri gathers the necessary data and completes the spreadsheets. She helps Mariana understand and compare Chapter 7 and Chapter 13 as well as possible non-bankruptcy options (e.g. resisting wage garnishment and stopping unwanted contact from debt collectors). She provides Mariana with the required credit counseling.

     After a few days reflection, Mariana instructs Siri to prepare the relevant documents for a Chapter 7 bankruptcy. Siri does so, obtains digital copies of Mariana's pay stubs, obtains Mariana's digital signatures, draws filing fees from Mariana's PayPal account, and files the necessary documents with the bankruptcy court.

     Soon thereafter, Siri alerts Mariana to the first meeting of creditors. Mariana attends via FaceTime after practicing with Siri on answering questions that Siri anticipates from the United States Trustee. A few weeks later, Siri notifies Mariana of her discharge, evidence of which Siri will store for Mariana together with the spreadsheets, copies of the documents filed with the bankruptcy court, and a recording of all conversations between Siri and Mariana relating to resolution of her financial difficulties.

     Science fiction? I'm beginning to think not for too long.

Welcome to Guestblogger Gary Neustadter

Credit Slips is delighted to welcome first-time guest blogger, Professor Gary Neustadter. A renowned innovative teacher, Professor Neustadter  specializes in debtor-creditor law, contracts, consumer protection, and legal practice. His classic work, When Lawyer and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office, is a must-read, particularly worth revisiting as the nature of legal practice changes in the last decade driven by BAPCPA and the technology.

His new article, Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World, is one of the most exciting pieces of scholarship that I've had the pleasure of reading. Gary offers all those interested in civil justice and economic rights a rare window directly into the justice system. While the picture that he portrays is far from pretty, his article approaches the effect of great art: it challenges us to question our assumptions and our perspectives.

Welcome, Gary, to Credit Slips. We look forward to your insights.

CFPB Consumer Complaint Narratives: What They Say About Bankruptcy

The Consumer Financial Protection Bureau's consumer complaint database has contained narratives for over a year now. Each month, the CFPB publishes a report that summarizes the complaints received over the previous three months, and that focuses on a specific product and geographic area. (The latest report was published on August 31.) The higher-level summary offered by these reports is interesting and I have referenced them in class on occasion.

The consumer complaint narratives tell as interesting, but often different stories. However, they are harder to sort through systematically. In preparation for a symposium, I recently took a random sample of complaints with narratives published in the year period between May 2015 and April 2016. Having now read thousands of narratives, one trend stood out to me rather quickly -- narratives that talked about the consumer's prior bankruptcy or a relative's bankruptcy. About 5% of the narratives discuss bankruptcy.

Clawing Back Tuition Payments

Are tuition payments for an adult child's education, while the parents are insolvent, constructively fraudulent? As the WSJ reported this week, Bankruptcy Judge Hoffman (D. Mass.) recently held that they are not. But other courts have disagreed. In fact, there seem to be courts on both sides of this (although apparently, no circuit decisions yet).

In this latest case, In re Palladino, the debtors made tuition payments for their adult daughter's college education. There was no question that the debtors were insolvent when they made payments or that they did so within the last two years. The only question was whether the debtors received "reasonably equivalent value" (REV) under section 548 of the Bankruptcy Code (and Massachusett's UFTA). That section defines value as "property, or satisfaction or securing of a present or antecedent debt of the debtor, but does not include an unperformed promise to furnish support to the debtor or to a relative of the debtor." 548 (a)(2)(A). Courts have interpreted REV as requiring an economic benefit, which could be indirect, but has to be "concrete" and "quantifiable."

Here, the court explained that

[The Palladinos] believed that a financially self-sufficient daughter offered them an economic benefit and that a college degree would directly contribute to financial self-sufficiency. I find that motivation to be concrete and quantifiable enough ... A parent can reasonably assume that paying for a child to obtain an undergraduate degree will enhance the financial well-being of the child which in turn will confer an economic benefit on the parent. This, it seems to me, constitutes a quid pro quo that is reasonable and reasonable equivalence is all that is required.

Opn. at 8 (emphasis mine).

Can a Nonprofit Startup Fix the Pro Se Problem in Bankruptcy?

For the past four years, Jim Greiner, Lois Lupica, and I have been working on the Financial Distress Research Project (FDRP)*, a large randomized control trial trying to find out what works to help individuals in financial distress. As part of the project, a large number (70+ at last count) of student volunteers have created self-help materials aimed at these individuals, using the latest learnings in adult education, psychology, public health, and more. Part of our work has focused on creating a set of materials to help pro se filers through a no asset Chapter 7 bankruptcy (I blogged about the student loan AP materials here).

Harmonizing Consumer Insolvency Law

In contrast to the cacophony created by Brexit, EU authorities have been working for several years on a project to move toward greater harmony among the discordant insolvency laws of the Member States. Though the project is focused on business rescue and restructuring, the Commission Recommendation "on a new approach to business failure and insolvency" makes specific reference to non-business cases, as well, as "Member States are invited to explore the possibility of applying these recommendations also to consumers" (para. 15).

A fantastic conference at Brunel University London this May explored the question whether there was a need for comprehensive EU intervention in the historically national-law arena of consumer debt relief. The conference presented several instructional vignettes on the varying situations in the UK, Germany, Italy, and Greece, as well as some reflections on the very limited degree of EU involvement in ensuring "fair" consumer credit markets as a supposed bulwark against overindebtedness. The presentations at the conference vividly illustrated the weakness of this supply-side-only approach, as well as the extreme divergence among exisiting European personal insolvency relief regimes. A fascinating book published in connection with this conference's greater project nicely illustrates the messy state of overindebtedness regulation in the EU today.

All of which has me thinking about a topic that recurs in the academic debate in the US from time to time:

Essential Resources on Burdens of Proof in Bankruptcy Litigation: Property Exemptions and Beyond

Deliberations of the Advisory Committee on Bankruptcy Rules have generated great materials relevant to burdens of proof in bankruptcy litigation that judges and lawyers should read and keep on their shelves, whether physical or virtual. Judge Christopher Klein's Suggestion 15-BK-E, submitted in July of 2015, posited that Rule 4003(c) (which gives the objecting party the burden of proof in property exemption disputes) exceeds the authority of the Rules Enabling Act "with respect to claims of exemption that are made under state law that does not allocate the burden of proof to the objector." The document includes a detailed court decision, In re Tallerico, setting forth the reasoning. In a memorandum starting on page 67 of the agenda book downloadable here,  Assistant Reporter/Professor/prior Credit Slips guest Michelle Harner takes a deep dive into the intersection of burdens of proof and the Rules Enabling Act. The Harner memo considers two key Supreme Court decisions that present different standards. The first is Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15 (2000), which played a central role in Judge Klein's submission and court decision. The second is Hanna v. Plumer, 380 U.S. 460 (1965). Harner concludes that Hanna is more on point in the event of a conflict between a federal bankruptcy rule and state law. And, as Harner explains, the Supreme Court in Hanna "rejected the argument that a rule is either substantive or procedural for all purposes" (p78), walks through the questions to be considered, and seeks to apply them to the exemption issue at hand. It looks like the Bankruptcy Rules Committee will not be proposing changes to Rule 4003(c) at this time, but this memo should live on, alongside the case law, as an essential resource for judges and lawyers who encounter disputes over the propriety of burdens of proof in federal rules. 

Bookshelf image courtesy of Shutterstock.com

 

Fabulous New Paper: Random Justice in Bankruptcy Trial Courts

I just read a terrific new paper by Gary Neustadter of Santa Clara University Law School, called "Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World." It presents a monumental empirical study of a debt buyer's litigation campaign to pursue essentially identical contract and fraud claims against hundreds of secondary mortgagors in state courts, federal District Courts, and federal Bankruptcy Courts. The paths and outcomes of these materially identical cases are so different in so many surprising (and often disturbing) ways, the paper offers a really stunning look behind the curtain of our often arbitrary trial-level justice system. And Neustadter's telling of the story is gripping--I read the paper and most of its footnotes from beginning to end in one sitting, unable to put it down. The revelations in this paper are a gold mine for civil proceduralists generally and bankruptcy practitioners in particular. It offers a cautionary tale and useful playbook for lawyers (and perhaps judges) in how to make many aspects of our system more effective. Get it while it's hot!

Justice die image courtesy of Shutterstock

Initial Attorney Reactions to the New Bankruptcy Forms

Yesterday I spoke at the Oklahoma Bar Association's annual advanced bankruptcy seminar. My talk focused on my research into chapter 11 cases filed by churches, a few of which are from Oklahoma. But the seminar's timing aligned perfectly with the roll out of the new bankruptcy forms. And unsurprisingly the first hour of the seminar was devoted to introducing and discussing the forms. A debtor attorney who handles chapter 7, 11, 12, and 13 cases -- Brian Huckabee -- parsed through some of the forms and added some initial comments. My take-away is that debtor attorneys' chief concern is that the readability and understandability of the forms will make it easier for debtors to file pro se, taking work away from attorneys ("this is self-service!"), a concern which was raised during the public-comment period. A related concern was voiced by a chapter 7 trustee: that chapter 7 (and 13) trustees will end up spending more time working through each case.

Three items during the discussion stood out to me. The first two relate to the "self-service" nature of the forms, particularly the new forms' instructions and white space. The last item goes to an attachment to the proof of claim form, Form 410A -- Mortgage Proof of Claim Attachment. 

The Future of Bankruptcy Work for Lawyers

As expected, as the number of consumers filing bankruptcy has continued to decrease, the revenue of the consumer bankruptcy debtor and creditor bar has been hit hard. Over the past several years billable hours of business bankruptcy (including insolvency, workout or reorganization) lawyers have been dropping and many mid-level partners at large firms are looking for work in related or unrelated specialties. 

We would expect consumer bankruptcy work to increase when:

1. Filing has a better chance of discharging some or all student loan debt;
2. Filing has a better chance of helping consumers modify the terms of their first mortgages;
3. Filing has a better chance of helping consumers modify the terms of their car loans; and/or
4. Credit card debt and/or defaults increase.

The future is harder to call for the business bankruptcy field. Everyone expects the number of business failures and loan defaults to increase when interest rates tick up and those businesses that are surviving only because of the low rates cannot service their debts or find alternative financing.  Even though the economy had not been vibrant, with the exception of specific industries such as coal or oil defaults are low.

The challenge is to predict to what extent law work in this area is down because of structural and legislative changes.  For example, the shift from traditional financial institution lenders to “Loan to Own” lenders has reduced the amount of law work related to default and/or restructure on both the debtor and the creditor side. Partly related to that change, the shift from chapter 11 reorganizations to “chapter” 363 sales has significantly reduced bankruptcy court work. One of the factors in the shift to 363 sales rather than true reorganizations was the legislative changes to Article 9 in all fifty states. When the ALI –ULI drafting committee made it much easier to take and enforce in bankruptcy court a security interest in just about every conceivable type of asset they reduced the reorganization leverage.

What percentage of the drop off in work involving defaults, workouts and restructure is related to these factors will determine to what extent the work will grow when defaults rise.

Pro Publica: Extraordinary Struggles of African American Debtors

I understand what it's like to live in a low-income family. I can only begin to try to understand the extraordinary struggles facing low-income families who also happen to be black. Pro Publica has just released a story and accompanying study that helps a bit to bridge this empathy gap.

Along the way, the story raises a frustrating point about our legal system that impacts all lower-income communities, but black folks in particular: Most legal protections against the kinds of rapacious collections activities described in the Pro Publica story require the debtor to affirmatively invoke the protections. For example, the story notes a collector explaining "if Byrd had filed a claim in court stating that the funds were exempt, the garnishment would have been terminated." Does the tragic irony escape this commentator? Byrd doesn't have enough money to pay the $29 sewer bill--do we really expect her to hire and pay for a lawyer to "file a claim in court stating that the funds were exempt"?! Similarly, the story describes default judgments being entered on time-barred debts because the debtors failed to invoke the statute of limitations--why in the world would a rational system allow time-barred debt to be revived against an impecunious debtor for failure to pay for counsel to raise this defense?! It's a self-fulfilling prophesy. The clever and unscrupulous inevitably prevail in a system where "The law doesn’t require anyone to tell debtors like Winfield of the [head-of-household 10% garnishment] exemption, and the burden is on them to claim it."

The story also cites and links to a study (and comments from study contributor and Slipster, Bob Lawless) on racial disparities in Chapter 13 practice. I've witnessed the emotional fervor that this study can whip up in a crowd of bankruptcy attorneys ... but the Pro Publica story ought to prompt us to return to the provocative question of whether, intentionally or not, directly or indirectly, our debt collection and debt relief systems are disparately impacting our black neighbors. Fixing problems that fall more heavily on these debtors would improve the system for everyone.

Image courtesy of Shutterstock

Attorney Market for Discharging Student Loans

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 Greiner, Lois 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.