Category: Law Reviews & Studies

Law Review: Twomey, Tara & Maynes, Todd- Protecting Nest Eggs and Other Retirement Benefits in Bankruptcy

Abstract:
For debtors facing financial distress in the twilight of their working years or beyond, bankruptcy’s promised fresh start may depend more on preserving retirement assets and benefits than returning to economic productivity. Even for those in the prime of their working years, losing retirement assets can represent a major lifelong setback. As a result, the question of whether consumer debtors can keep all or part of their retirement assets and benefits is a critical consideration. This paper surveys the intersection between the Bankruptcy Code and the preservation of retirement assets and benefits before and after the 2005 amendments to the Code.… Read More

Tagged with: , , , ,

Law Review: Jiménez, Dalié- Dirty Debts Sold Dirt Cheap

Debt Buyer keeps naggin’ at you night and day
Enough to drive you nuts
Pick up the phone, leave me alone
It’s time you made a stand.

Paraphrase of AC/DC- Dirty Deeds Done Dirt Cheap

Abstract:

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence.… Read More

Tagged with: , ,

Urban Institute Studies: Debt in America and Delinquent Debt in America

Debt in America Abstract:

Debt can be constructive, allowing people to build equity in homes or finance education, but it can also burden families into the future. Total debt is driven by mortgage debt; both are highly concentrated in high-cost housing markets, mostly along the coasts. Among Americans with a credit file, average total debt was $53,850 in 2013, but was substantially higher for people with a mortgage ($209,768) than people without a mortgage ($11,592). Non-mortgage debt, in contrast, is more spatially dispersed. It ranges from a high of $14,532 in the East South Central division to a low of $17,883 in New England.… Read More

Tagged with: , , ,

Law Review: Gotberg, Brook- Conflicting Preferences: Avoidance Proceedings in Bankruptcy Liquidation and Reorganization

Abstract:

The law of preferential transfers permits the trustee of a bankruptcy estate to avoid transfers made by the debtor to a creditor on account of a prior debt in the 90 days leading up to the bankruptcy proceeding. The standard for avoiding these preferential transfers is one of strict liability, on the rationale that preference actions exist to ensure that all general creditors of the bankruptcy estate recover the same proportional amount, regardless of the debtor’s intent to favor any one creditor or the creditor’s intent to be so favored. However, preference law also permits certain exceptions to strict preference liability and gives the estate trustee discretion in pursuing preference actions.… Read More

Tagged with:

Article- Stifler, Lisa and Parish, Leslie, The State of Lending: Debt Collection& Debt Buying

Summary:

This is an excellent primer from the Center for Responsible Lending for understanding debt buyer industry, as well as a overview of various federal and state laws and regulations and policy recommendations.

Commentary:

North Carolina is appropriately given pride of place for being the first state to enact the novel requirement that debt buyers to actually prove the debts using admissible evidence. See N.C.G.S. § 5870-150 et. seq..

This article, however, continues the unfortunate tradition of previous examinations of debt buyers in failing to address the overwhelming number of Proofs of Claims filed by debt buyers in consumer bankruptcy cases.… Read More

Tagged with:

Law Review: Rendleman, Doug & Weingart, Scott- Collection of Student Loans: A Critical Examination

Abstract:

Although the collection of college student loans centers this article, some background precedes its main topic. It begins by defining and distinguishing federal and private student loans. Next is repayment of loans, postponing repayment through deferment, forbearance, extensions, and public-interest assistance and cancellation. Perkins loan deferment, forbearance, and cancellation follow. Delinquency and default are next, including collection fees and penalties, administrative wage garnishment, state and federal income-tax-refund offsets, federal benefits offsets, and professional-license suspension. The lender’s judicial collection is followed by the borrower’s limited affirmative defenses and post-judgment tools. A borrower may exit default through consolidation and rehabilitation. There are two types of statutory discharges: school-related discharges and discharges for death and disability.… Read More

Tagged with: , , , , ,

Law Review: Ponoroff, Lawrence – Constitutional Limitations on State-Enacted Bankruptcy Exemption Legislation and the Long Overdue Case for Uniformity

Abstract: 

The division of responsibility between state and federal authorities in bankruptcy is complex. The U.S. Constitution cedes the power to pass bankruptcy laws to the federal government. For political reasons, however, since 1867 the federal bankruptcy law has deferred to one degree or another to the states with respect to the designation of property exempt from administration in a bankruptcy case. The constitutionality of this practice under the uniformity requirement in the Bankruptcy Clause of the Constitution has been settled since 1902. More recently, however, considerable disagreement has arisen in the case law over whether this deference extends to exemptions enacted by a state that apply solely in bankruptcy.… Read More

Tagged with: , ,

Law Review: Sousa, Michael D.- Just Punch My Bankruptcy Ticket: A Qualitative Study of Mandatory Debtor Financial Education

Abstract:

When Congress amended the Bankruptcy Code in 2005 through the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), it mandated that individual consumer debtors undergo two debtor education courses, one as a condition precedent to filing for bankruptcy relief, and a second for later receiving a discharge of indebtedness. As for the pre-filing credit counseling course, Congressional aim was to have prospective debtors understand the potential alternatives to filing for bankruptcy relief with the goal of having some percentage of debtors settle their debt obligations outside of the bankruptcy system. Regarding the post-filing financial management course, Congress wanted debtors who utilized the bankruptcy system to learn effective financial management techniques to employ after the closing of their bankruptcy cases.… Read More

Tagged with: ,

Law Review: Sousa, Michael D.- A Casus Omissus in Preventing Bankruptcy Fraud: Ordering a Search of a Debtor’s Home

Abstract:

Most individual debtors file for bankruptcy relief with honest intentions. Nonetheless, there is also an underside to the American bankruptcy law system that often goes unreported and ignored in the scholarly literature, namely, the commission of fraud by debtors who seek protection under the Bankruptcy Code. One of the ways in which fraud upon the bankruptcy system occurs is when debtors intentionally conceal assets from the bankruptcy process. Indeed, reported bankruptcy court decisions are rife with examples of debtors attempting to hide or shield assets from their creditors. Debtors who are discovered concealing assets are subject to certain civil remedies, such as the dismissal of their bankruptcy case or the denial of the discharge of their preexisting indebtedness.… Read More

Tagged with: , , , ,

Law Review: Lindblad, Quercia, Jacoby, Wang & Zhao- Bankruptcy During Foreclosure: Home Preservation through Chapter 7 and 13

Abstract:

Filing for bankruptcy is the primary legal mechanism by which homeowners in foreclosure can exert control over ownership of their home, yet little is known about the interplay between bankruptcy chapters, mortgage servicers, state foreclosure laws, and home foreclosure auctions. We analyze 4,280 lower-income homeowners in the United States who were more than 90 days late paying their 30-year fixed-rate mortgages. Two dozen organizations serviced these mortgages and initiated foreclosure between 2003 and 2012. We identify wide variation between mortgage servicers in their likelihood of bringing the property to auction. We also show that when homeowners in foreclosure filed for bankruptcy, foreclosure auctions were 70% less likely.… Read More

Tagged with: , ,
Top