All items from Credit Slips

TicketsThat's the title of Denver Law Professor Michael Sousa's new article exploring debtors' evaluations of the pre-filing credit counseling course and the post-filing financial management course mandated by BAPCPA. The data for the article came from in-depth interviews that Sousa conducted with 58 individuals from Colorado who filed under Chapter 7 between 2006 and 2010. Bob Lawless previously posted about another article Sousa wrote based on the interviews that discusses debtors' perceptions of bankruptcy stigma. Like Sousa's previous article, this paper carefully presents the interviews for what they are and what they can reveal about debtors' interactions with these two components of the bankruptcy process.



Posted 2 hours 34 min ago

Rosen
As family, friends, and colleagues mourn the passing of the Leonard Rosen, the fitting tribute by Wachtell, Lipton, Rosen & Katz allows a glimpse into his exceptional contributions:
But above all, Leonard was a good man. A generous man. A kind man. A man you could trust with your most difficult problems and deepest concerns, a superb partner who represented, and will always represent, all we strive to be as lawyers, citizens, and human beings. He was much sought after for his judgment, as well as for his marvelous ability to resolve disputes and reconcile disparate views. He shaped the culture of our Firm. He was the glue that cemented a group of hard-working and talented attorneys into a leading law firm that has served as a model for other firms. He was not only admired and respected by his colleagues; he was beloved.



Posted 1 day 10 hours ago

In light of General Mills policy of claiming that its binding mandatory arbitration requirement (with class action waiver) applies to anyone who purchases its products, including via third-party vendors, I have decided, to post the following legal notice, applicable to all persons, everywhere:     

By permitting, allowing, or suffering me to purchase any of your products or services, whether directly from you or indirectly through dealers, vendors, agents, or other third-parties, you agree to irrevocably surrender all rights to compel me to arbitration or to waive my rights to proceed against you as a member of a class action.  In order to make this provision effective and allow effective vindication of my rights, you also agree to irrevocably surrender all rights to compel arbitration and to prevent class actions against all other purchasers of your products and services.  You also agree to cover all of my costs associated with bringing an action, including attorneys' fees and any damages awarded against me, irrespective of the outcome of the action. 

Is General Mills notice any more effective than mine?  I don't see why it would be.  Let's get this long-range battle of the forms on! 



Posted 1 day 12 hours ago

I had the pleasure of participating in this weekend's very successful Research Symposium on Student Loans organized by Kathleen Engel of Suffolk Law School and Deanne Loonin of the National Consumer Law Center (NCLC) (NCLC, by the way, is looking to hire three attorneys!). In this post I want to mention some of the highlights.



Posted 3 days 7 hours ago

A while back, The PEW Charitable Trust did two fascinating papers, found here and here, on prepaid cards. The studies reported that nearly 12 million consumers loaded more than $64 billion onto prepaid cards in 2012, and that three of the top 10 companies now offering prepaid cards are highly recognizable banking institutions that did not offer the product before. This is a big change. Indeed, we here at credit slips do not even have a category for stories on pre-paid cards, but the cards are the next big thing. Since these reports came out, I have seen numerous conferences advertised to help people learn more about how to make money issuing pre-paid cards. The business plan for making more money from a seemingly simple payment device? Offering overdraft “protection” for the cards, meaning that if the money is gone, the card holder can just overdraw the pre-paid card…for a few bucks of course. Hmmm…



Posted 2 weeks 1 day ago

On behalf of everyone at Credit Slips, I wanted to thank Professor Javier Arias of the Universidad Rey Juan Carlos and Professor Andrew Dawson of the University of Miami. It takes time out of a busy schedule to contribute to the Credit Slips community, and their contributions are well appreciated. Javier brought us up to date on the recent changes in the Spanish insolvency regime, and Drew offered his thoughts on some developments in chapter 15/transnational insolvency as well as on labor rights in chapter 11. Thank you again, both of you.



Posted 2 weeks 1 day ago

Thanks to all who commented on my earlier post on the interaction of §§ 544(a)(3) and 551 and homeownership in bankruptcy; as hoped, CreditSlip readers helped me frame the questions that I continue to have about Traverse and the larger policy questions it raises. Some readers emphasized the importance of variations in state mortgage law to the trustee’s strong-arm powers; others questioned whether these distinctions should affect the trustee’s power to sell the residence (or the avoided lien) following avoidance.
Clearly, the trustee had the power to avoid the unrecorded mortgage in Traverse; let’s assume for purposes of argument that he also had the power to sell full title to the debtor’s home after avoidance.  For me the more interesting question is whether the trustee should have exercised these powers, and also whether the exercise might be viewed as an abuse of discretion.
Another way to think about this question is from an even broader angle: What position should a trustee play in a individual borrower’s chapter 7 case?  Is a trustee’s role to maximize distributions to unsecured creditors, full stop? Or might the trustee’s fiduciary obligations to the estate sometimes sit in tension with an interest in maximizing creditors’ interests?



Posted 2 weeks 2 days ago

The U.S. Supreme Court has denied a petition for writ of certiorari in Bank of America v. Sinkfield, an 11th Circuit case raising the issue whether a junior lien wholly unsupported by collateral value can be stripped off in chapter 7. 
The high court's denial of certiorari yesterday (March 31) is a victory not only for the debtor who prevailed in the case below but also for the National Association of Consumer Bankruptcy Attorneys, represented by the National Consumer Bankruptcy Rights Center, which argued in an amicus brief against Supreme Court review on the ground that the case had not been fully litigated below and thus was a poor one for the Supreme Court to take up.   
The creditor in Sinkfield stipulated to the result that strip off was permitted in the case, based on an Eleventh Circuit opinion so holding in another case,  In re McNeal, 735 F.3d 1263 (11th Cir. 2012), one in which en banc rehearing has been sought.



Posted 2 weeks 4 days ago

Word on the street is that the company formerly known as TXU – now known as Energy Future Holdings – is lining up the biggest private DIP loan ever. About $9 billion.
Still substantially less than the $33 billion that GM needed, and that is still much, much less than a global SIFI might need upon failure. A few years ago I suggested that number might be as high as $300 billion.
So why do we continue to pretend that private DIP lending can work in SIFI resolution? Do we really think the DIP loan market will provide more lending than usual during times of financial stress?



Posted 2 weeks 5 days ago

Richard Alderman (Houston Law Center ) and I welcome all of you to beautiful Santa Fe New Mexico on May 30-31,  2014 for the only international conference in the world dedicated to the teaching of consumer law. The conference is sponsored by the Center for Consumer Law at the University of Houston Law Center, in cooperation with the University of New Mexico, and the National Association of Consumer Advocates. This year the theme is “Teaching Consumer Law in a Virtual World.”
More than 25 presenters will discuss issues related to teaching consumer law, establishing a consumer law program, as well as substantive issues regarding U.S. and international consumer law. Some of the topics include: Increasing the Prominence of Consumer Law and Influencing Policy, Debt Collection, What’s New with the FTC and the CFPB?, Economic Justice and Consumer Law. 
Teaching the Financial Crisis through Consumer Law, Virtual Currency, Privacy, Making the Most of Consumer Clinics, Consumer Arbitration , Class Actions, Innovations in Teaching, “Legal” Drug Advertising, Computerized Delivery of Consumer Law, Foreclosure Defense, Online Peer-to-Peer Lending , and Strict Product Liability in South Africa. Click here  to register and here for the brochure. 



Posted 2 weeks 6 days ago