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Articles 1 - 30 of 42
Full-Text Articles in Law
Divide, "Two-Step," And Conquer: How Johnson & Johnson Spurred The Bankruptcy System, Patrick Maney
Divide, "Two-Step," And Conquer: How Johnson & Johnson Spurred The Bankruptcy System, Patrick Maney
University of Cincinnati Law Review
No abstract provided.
Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne
Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne
Articles
One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …
The Internet Of Bodies, Andrea M. Matwyshyn
The Internet Of Bodies, Andrea M. Matwyshyn
William & Mary Law Review
This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …
Time Bandits: The Seventh Circuit Gets It Wrong By Allowing Debt Purchasers To Escape Fdcpa Liability For Filing Time-Barred Proofs Of Claim In Chapter 13 Bankruptcies, Jeffrey Michalik
Chicago-Kent Law Review
Debt purchasers can use debtors’ bankruptcies to profit from stale, otherwise unenforceable debt. Although state statutes of limitations bar legal enforcement of this debt, predictable breakdowns of the bankruptcy process mean that the debtor might be forced to pay anyway. Courts have determined that this scheme does not violate the Fair Debt Collection Practices Act, allowing debt purchasers to continue this scheme without repercussion.
Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart
Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart
Maine Law Review
The discharge injunction is an integral aspect of the “fresh start” that bankruptcy affords to many debtors. But there has been a growing threat to the viability of the bankruptcy discharge: zombie debt! Just when honest but unfortunate debtors think they have finally laid their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior. This Article discusses the motivation behind these questionable collection tactics and potential …
Midland Funding V. Johnson And The Pernicious Problem Of Stale-Debt Claims, Kara J. Bruce
Midland Funding V. Johnson And The Pernicious Problem Of Stale-Debt Claims, Kara J. Bruce
Loyola of Los Angeles Law Review
No abstract provided.
Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy
Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy
Articles & Chapters
Internet of Things (“IOT”) products generate a wealth of data about consumers that was never before widely and easily accessible to companies. Examples include biometric and health-related data, such as fingerprint patterns, heart rates and calories burned. This Article explores the connection between the types of data generated by the IOT and the financial frameworks of Article 9 of the Uniform Commercial Code and the Bankruptcy Code. It critiques these regimes, which enable the commodification of consumer data, as well as laws aimed at protecting consumer data, such as the Bankruptcy Abuse Prevention and Consumer Protection Act, various state biometric …
Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin
Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin
Law & Economics Working Papers
A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …
La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn
La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn
Jason Kilborn
This Article on the French law continues a study of European consumer debt-relief systems, which the author began previously in an article on the German system. With rapid legal and practical developments in consumer debt-relief law, Europe provides an excellent comparative legal laboratory for observing the potential benefits and pitfalls of consumer bankruptcy reforms. In particular, French and German experiences with long-term payment plans shed useful light on the great debate raging in the United States over similar plans.
"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne
"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne
Articles by Maurer Faculty
This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …
Tightenting The Loophole: The Role Of Fee-Shifting Statutes In Resolving The Growing Problem Of Servicing America's Student Loan Debt, Katheryn E. Marcum
Tightenting The Loophole: The Role Of Fee-Shifting Statutes In Resolving The Growing Problem Of Servicing America's Student Loan Debt, Katheryn E. Marcum
West Virginia Law Review
No abstract provided.
Energy Derivatives: Which Country (U.S. Or U.K.) Provides The Best Customer Asset Protections To An Energy Trading Firm If Its Brokerage Firm/Counterparty Files For Bankruptcy, Ronald H. Filler
Articles & Chapters
No abstract provided.
Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer
Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer
University of Richmond Law Review
This article will cover both consumer and business bankruptcy issues, and is limited primarily to decisions by courts within the Fourth Circuit since mid-2012. Despite these general parameters, because bankruptcy is federal law, there are some cases outside the Fourth Circuit that are included due to their influential and instructive nature. The intention of this update is to provide bankruptcy practitioners in Virginia with concise, yet compre-hensive, case summaries that will prove to be a valuable researchtool.
The Law And Economics Of Consumer Debt Collection And Its Regulation, Todd J. Zywicki
The Law And Economics Of Consumer Debt Collection And Its Regulation, Todd J. Zywicki
Todd J. Zywicki
This article reviews the law and economics of consumer debt collection and its regulation a topic that has taken on added urgency in light of the announcement by the Consumer Financial Protection Bureau that it is considering new regulations on the subject. Although stricter regulation of permissible debt collection practices can benefit those consumers who are in default and increase demand for credit by consumers, overly-restrictive regulation will result in higher interest rates and less access to credit for consumers, especially higher-risk consumers. Regulation of particular practices may also have the unintended consequence of providing incentives for creditors to more …
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Matthew Adam Bruckner
In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …
Reforming The Law Of Reputation, Frank A. Pasquale
Reforming The Law Of Reputation, Frank A. Pasquale
Faculty Scholarship
Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.
As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to …
4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci
4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci
Touro Law Review
No abstract provided.
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Faculty Scholarship
Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland
Peter A. Holland
Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …
House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki
House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki
Michigan Law Review
Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-to-one split of circuits in favor of the minority view …
Clearinghouses As Liquidity Partitioning, Richard Squire
Clearinghouses As Liquidity Partitioning, Richard Squire
Faculty Scholarship
To reduce the risk of another financial crisis, the Dodd-Frank Act requires that trading in certain derivatives be backed by clearinghouses. Critics mount two main objections: a clearinghouse shifts risk instead of reducing it; and a clearinghouse could fail, requiring a bailout. This Article’s observation that clearinghouses engage in liquidity partitioning answers both. Liquidity partitioning means that when one of its member firms becomes bankrupt, a clearinghouse keeps a portion of the firm’s most liquid assets, and a matching portion of its short-term debt, out of the bankruptcy estate. The clearinghouse then applies the first toward immediate repayment of the …
The Debtor Class, Kara J. Bruce
The Debtor Class, Kara J. Bruce
Kara J. Bruce
In recent years, individuals seeking bankruptcy protection have encountered an unexpected harm: their lenders have misrepresented the amounts they owe, lost or misapplied their loan payments, and violated clear requirements of bankruptcy law and procedure. Recent investigations of consumer bankruptcy cases reveal widespread abuse of the bankruptcy code, ranging from the filing of unsupported or overinflated proofs of claim to violations of the automatic stay and discharge injunction. Such practices undermine consumer bankruptcy’s central goals to provide consumer debtors a fresh financial start and to achieve the fair treatment of and distribution of assets to creditors. Because many debtors affected …
Improving The Lives Of Individuals In Financial Distress Using A Randomized Control Trial: A Research And Clinical Approach, Lois R. Lupica, Dalie´ Jimenez, D. James Greiner, Rebecca L. Sandefur
Improving The Lives Of Individuals In Financial Distress Using A Randomized Control Trial: A Research And Clinical Approach, Lois R. Lupica, Dalie´ Jimenez, D. James Greiner, Rebecca L. Sandefur
Faculty Publications
This Article describes an ambitious Randomized Control Trial (RCT) in the area of consumer debt collection. Randomized trials are the same kind of evaluation that the law requires (or at least strongly encourages) before new drugs and medical devices may be sold to the public. Although they have not yet gained widespread popularity in the evaluation of legal systems, randomized trials are uniquely effective ways of assessing whether any benefits observed after implementation of legal or educational assistance programs are really due to those programs as compared to other factors, such as unusual levels of competence or motivation of program …
Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland
Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland
Peter A. Holland
Junk debt buyer lawsuits have overwhelmed the courts all across the United States. These lawsuits wreak havoc on consumers and their families. Often overlooked is the fact that judgments against consumers which are based on junk debt are part of a zero sum game, where every bogus judgment deprives a legitimate creditor of the chance to get paid from scarce resources. Thus, the legitimate creditor to whom money is owed is materially harmed by the junk debt buyer who extracts money based on an illegitimate claim, or who causes someone to declare bankruptcy. Providing representation to this otherwise unrepresented population …
Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland
Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland
Faculty Scholarship
Junk debt buyer lawsuits have overwhelmed the courts all across the United States. These lawsuits wreak havoc on consumers and their families. Often overlooked is the fact that judgments against consumers which are based on junk debt are part of a zero sum game, where every bogus judgment deprives a legitimate creditor of the chance to get paid from scarce resources. Thus, the legitimate creditor to whom money is owed is materially harmed by the junk debt buyer who extracts money based on an illegitimate claim, or who causes someone to declare bankruptcy. Providing representation to this otherwise unrepresented population …
The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel
The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel
Faculty Scholarship
For the legal system to operate effectively, it must address problems arising from the absence of needed laws, or, if enacted, of laws that have been drafted poorly or are not being implemented in a fair and just manner. Since law schools are generally part of a larger university community, they are uniquely placed to serve as laboratories to find solutions to such problems, perhaps nowhere more so than in their legal clinics. The latter have in fact often played the role of legal innovators, but their contributions to the law and therefore to society at large have been little …
Financial Literacy Or Financial Castigation?, John A. E. Pottow
Financial Literacy Or Financial Castigation?, John A. E. Pottow
Articles
This year, the Canadians- through their government-convened Task Force on Financial Literacy - have proudly produced, "Canadians and their Money: Building a Brighter Financial Future." Armed with 30 recommendations, its most dramatic innovation is to recommend the creation of a Financial Literacy Leader. I have been asked to provide an American perspective on this report specifically and the broader agenda of "financial literacy" more generally as a consumer welfare intervention. Let me start by acknowledging the critiques of the Canadian Task Force. For example, my Canadian colleague, Saul Schwartz, has already drafted a compelling analysis of the political economy behind …
In Or Out Of Mortgage Trouble? A Study Of Bankrupt Homeowners, Melissa B. Jacoby, Daniel T. Mccue, Eric M. Belsky
In Or Out Of Mortgage Trouble? A Study Of Bankrupt Homeowners, Melissa B. Jacoby, Daniel T. Mccue, Eric M. Belsky
Melissa B. Jacoby
We examine the determinants of missed payments and foreclosure initiation among a national sample of homeowners who filed for personal bankruptcy in 2007, using a rich dataset from the 2007 Consumer Bankruptcy Project.
Credit access had a significant effect on keeping mortgages current across all of our models: access to, and reliance on, credit cards reduced the chance of missed payments and default, increasing the likelihood that bankruptcy could produce a fresh start. Missed mortgage payments also were associated with a substantial drop in income and with the use of a mortgage broker. The probability of foreclosure initiation was lower …
Making Debtor Remedies More Effective, Melissa B. Jacoby
Making Debtor Remedies More Effective, Melissa B. Jacoby
Melissa B. Jacoby
Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …
Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman
Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman
Melissa B. Jacoby
This paper presents original empirical evidence on financial interactions between medical providers and their patients who go bankrupt. We use a nationally representative sample of people who filed for bankruptcy in 2007 to compare two popular but hotly contested methods of measuring medical burden. By applying both methods to the same filers, we find that nearly four out of five respondents had some financial obligation for medical care not covered by insurance in the two years prior to filing as measured by the survey method. The court record method paints a different picture, with only half of the cases containing …