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The “Undue Hardship” Test: The Dangers Of A Subjective Test In Determining The Dischargeability Of Student Loan Debt In Bankruptcy, Rebekah Keller
The “Undue Hardship” Test: The Dangers Of A Subjective Test In Determining The Dischargeability Of Student Loan Debt In Bankruptcy, Rebekah Keller
Missouri Law Review
In today’s culture of living life on credit, post-secondary education loans have become the most popular method for American students to pay for their college degrees. Further, “[t]he costs for a higher education are among the fastest-rising costs in American culture today. Since 1980, tuition costs at U.S. colleges and universities have risen 757 percent.” With $1.2 trillion in current outstanding student loan debt, approximately 43 percent of the 22 million Americans with federal student loan debt are not making payments on their loans. In 2014, 69 percent of college seniors at public and nonprofit colleges graduated with some student …
The Eighth Circuit Allows A Child Tax Credit Exemption In Bankruptcy Proceedings: A Minty Fresh Start Or Abuse Of The System?, Rebekah Keller
The Eighth Circuit Allows A Child Tax Credit Exemption In Bankruptcy Proceedings: A Minty Fresh Start Or Abuse Of The System?, Rebekah Keller
Missouri Law Review
Part II of this Note examines the issues presented in the instant case, Hardy v. Fink, in which the Eighth Circuit became the first circuit court to include the Child Tax Credit as a “public assistance benefit” under the Missouri exemption statute in a bankruptcy proceeding. Part III explores the applicable laws, legislative history, and recent case law that addressed these issues. Part IV explores the Hardy decision’s in-depth examination of the legislative history surrounding the Child Tax Credit and the underlying purpose behind including public assistance benefits in both state and federal exemption schemes. Part V offers a framework …
Are They Or Aren’T They “Retirement Funds”? The Case For Including Funds From An Inherited Ira In A Debtor’S Bankruptcy Estate, Jennifer Salisbury
Are They Or Aren’T They “Retirement Funds”? The Case For Including Funds From An Inherited Ira In A Debtor’S Bankruptcy Estate, Jennifer Salisbury
Missouri Law Review
This Note first discusses the subsequent history of Clark. Next, it discusses the legal history of both non-inherited and inherited IRAs leading up to the Clark decision. Then, it details the Court’s decision in Clark. Finally, it concludes with a comparison of state and federal exemption schemes, using Missouri as an example, calling for reform of Bankruptcy Code Section 522(b)(3).
Bankrupting The Faith , Pamela Foohey
Bankrupting The Faith , Pamela Foohey
Missouri Law Review
This Article examines the institutions’ characteristics, reasons for filing, and case outcomes to investigate what benefits Chapter 11 brings to the organizations and whether bankruptcy is an effective solution to their financial problems. Based on the successful reorganizations and continued operations of some of the debtors in the study, it finds that Chapter 11 has the potential to provide a productive means for addressing their financial problems by offering religious organizations an avenue to rehabilitate their operations following economic downturns, failures and transitions in leadership, and standstills in negotiating with creditors. In exploring these Chapter 11 cases, this Article not …
Rethinking The Law Firm Organizational Form And Capitalization Structure , Edward S. Adams
Rethinking The Law Firm Organizational Form And Capitalization Structure , Edward S. Adams
Missouri Law Review
The goal of this Article is to examine the partnership model and advocate for a change in the Model Rules that would allow for public ownership of law firms, and to make disclosure of firm financials a mandatory requirement for all firms with over 100 lawyers. Part II explores the history and evolution of limited liability and law firm structures in the United States. Part III discusses incorporated law firms and MDPs and how they might benefit U.S. law firms. Part IV looks at the developments in the United Kingdom and Australia and the forces of globalization that have an …
Recoupment And Bankruptcy: How To Effectuate Bankruptcy Policy Through The Same Transaction Test , Jacob Thessen
Recoupment And Bankruptcy: How To Effectuate Bankruptcy Policy Through The Same Transaction Test , Jacob Thessen
Missouri Law Review
This Note will explore the interaction between recoupment and bankruptcy by focusing on the Eighth Circuit’s decision in In re Terry. Terry is significant because the Eighth Circuit allowed an insurance company to recoup pre-petition overpayments from the bankrupt debtor’s post-petition benefits. In doing so, the Eighth Circuit refused to acknowledge a separate balancing of the equities test, independent from the traditional same transaction requirement, when determining a creditor’s recoupment defense. This discussion will center on recoupment’s “same transaction” test and why it can be utilized to achieve sound bankruptcy policy by denying recoupment claims. It is this Note’s contention …
From Stem To Stern: Navigating Bankruptcy Practice After Stern V. Marshall, Michelle Wright
From Stem To Stern: Navigating Bankruptcy Practice After Stern V. Marshall, Michelle Wright
Missouri Law Review
In order to provide a foundation for understanding the Court’s reasoning in Stern, Part II of this Comment briefly covers the history of bankruptcy in America. Section III explains how the Supreme Court of the United States’ holding in Stern v. Marshall16 has affected bankruptcy courts’ disposition of state law claims. Scholars’ interpretations of Stern range from understanding it as a narrow holding that will change little in bankruptcy, to questioning whether it foreshadows the Court holding the entire bankruptcy system is unconstitutional in a future case. Given the breadth of opinions that the decision supports, it is predictable that …
Do I Own This Car - The Supreme Court Creates A Standard For Bapcpa Car Ownership, Anne Benton Hucker
Do I Own This Car - The Supreme Court Creates A Standard For Bapcpa Car Ownership, Anne Benton Hucker
Missouri Law Review
The case was Ransom v. FIA Card Services, N.A., and the dispute was whether, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Appellant Jason Ransom should be able to claim a vehicle ownership expense for purposes of Chapter 13 bankruptcy for the unencumbered car that he owned. Practitioners in the bankruptcy field had been watching the progression of this case and were eager to learn the Court's resolution of the issue. The interest was due to two reasons. First, the outcome of the case would affect approximately 250,000 Chapter 13 petitioners. Second, the case would resolve …
Eighth Circuit Loosens The Grip Of The Bankruptcy Gag Rule, But Holds Attorneys To Advertising Disclosure Requirement, The, Bethany R. Findley
Eighth Circuit Loosens The Grip Of The Bankruptcy Gag Rule, But Holds Attorneys To Advertising Disclosure Requirement, The, Bethany R. Findley
Missouri Law Review
The Court of Appeals for the Eighth Circuit, in a case of first impression, struck down a provision of the 2005 bankruptcy reform law that prohibits attorneys from advising their clients to incur more debt in contemplation of filing for bankruptcy. At the same time, the court upheld a provision of the Bankruptcy Code that compels attorneys to include a specified disclosure within their bankruptcy-related advertisements. The court's rationale for striking down the Code's restriction on attorney advice was that its broad application restricted attorneys from rendering advice that in some situations would be entirely lawful and beneficial to their …
Setting Things Straight: Adding A Provision To Allow Damages For Emotional Distress In The Bankruptcy Code Could Clear Up A Lot Of Confusion, Nathan M. Priestaf
Setting Things Straight: Adding A Provision To Allow Damages For Emotional Distress In The Bankruptcy Code Could Clear Up A Lot Of Confusion, Nathan M. Priestaf
Missouri Law Review
This Comment details the history of the automatic stay, the differing treatment of the statute in various jurisdictions, and the potential ramifications to debtors. Clearly, much of the time-consuming analysis performed by courts could be avoided if the Bankruptcy Code expressly permitted recovery for emotional distress, something most courts already permit, albeit only after considerable hand-wringing and strained reasoning. As a result, this Comment proposes a statutory addition to § 362(k) that addresses the dual concerns of bankruptcy courts: (1) allowing a legitimately injured debtor to recover for emotional distress damages while (2) providing a standard and burden of proof …
Hanging On To Till: Interpretations Of Bapcpa's Hanging Paragraph, Kaitlin A. Bridges
Hanging On To Till: Interpretations Of Bapcpa's Hanging Paragraph, Kaitlin A. Bridges
Missouri Law Review
Bankruptcy law has significantly changed in the last two years due to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"). An already complex and challenging area of law, bankruptcy has become even more so, as debtors and creditors begin to question how their rights have changed. For courts, one of the most perplexing issues is whether the standards and interpretations that were established in preBAPCPA bankruptcy cases are still applicable today. As courts have examined the potential effects of the new legislation, different opinions have emerged, leaving even more uncertainty for interested parties. One of the …
Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock
Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock
Missouri Law Review
Although sovereign immunity jurisprudence is not the most highly publicized topic of debate in the mainstream media, it has recently become a major source of contention on the Supreme Court. The flurry of sovereign immunity litigation that has reached the high court in the last decade has yielded mostly 5-4 decisions that have expanded the state's ability to assert immunity as a defense. Given this trend, few could have predicted the outcome of the court's decision in Central Virginia Community College v. Katz. In Katz, the 5-4 decision broke the other direction, and the court held that states had waived …
Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby
Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby
Missouri Law Review
Two important developments in the personal bankruptcy system unfolded over the course of the last several years: lawmakers considered and ultimately passed an omnibus bankruptcy bill, and researchers began to delve more broadly and deeply into medical-related financial distress among bankruptcy filers. Drawing on prior scholarship, this article contributes to this symposium by considering what, if anything, these developments have to do with one another. Part I briefly reviews two recent empirical studies of bankruptcy filers and the findings they produced. Although these findings may not have had discrete prescriptive implications for bankruptcy reform, they have contributed to a more …
Why The Bankruptcy Reform Act Left Labor Legacy Costs Alone, Daniel Keating
Why The Bankruptcy Reform Act Left Labor Legacy Costs Alone, Daniel Keating
Missouri Law Review
This paper proceeds in four parts. Part I describes the world of labor legacy costs and how they end up intersecting with bankruptcy. Part II discusses what approaches Congress or the courts have already used to address the labor/bankruptcy intersection. Part III explores what Congress might have considered in the bankruptcy reform bill if it had been motivated to take a serious look at labor legacy costs in bankruptcy. Part IV explains possible theories as to why Congress chose not to reform the labor/bankruptcy intersection and why that decision was frustrating but prudent.
Abuse Prevention 2005, James J. White
Abuse Prevention 2005, James J. White
Missouri Law Review
The 2005 amendments to the Bankruptcy Code (BAPCPA or Act) that became effective in October of 2005 had an unusually long and difficult gestation. The legislation was conceived and even passed by Congress once during the Clinton administration. After President Clinton's pocket veto, the Act did not again reach a President's desk until President George W. Bush signed the Act into law on April 20, 2005, during the first year of his second term. The Act was conceived by institutional unsecured consumer creditors as the antidote to the rapidly rising number of consumer bankruptcies that followed the enactment of the …
Foreword, Michelle Arnopol Cecil
Foreword, Michelle Arnopol Cecil
Missouri Law Review
With the tumultuous period after the enactment of BAPCPA as our backdrop, hundreds of academics, practitioners, and judges gathered together for a two-day symposium to explore the positive and negative aspects of bankruptcy reform from a variety of interdisciplinary perspectives. This volume of the Missouri Law Review is devoted almost exclusively to that symposium. Not only does it include the ten participants' written scholarship that emerged from that extraordinary setting, during which we all benefitted tremendously from the input of others who had thought about, written about, and worked with the provisions of BAPCPA, but it also contains a fascinating …
Bankruptcy Reform: What's Tax Got To Do With It, Michelle Arnopol Cecil
Bankruptcy Reform: What's Tax Got To Do With It, Michelle Arnopol Cecil
Missouri Law Review
On April 20, 2005, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), the most sweeping bankruptcy reform legislation passed by Congress in over a quarter of a century. The bill, which spanned over 600 pages, completelyoverhauled the consumer bankruptcy system and made significant changes to business bankruptcies as well. Yet despite Congress's massive effort to improve the current bankruptcy system in BAPCPA, it failed to address a number of important issues in the area of bankruptcy taxation, a critical but often overlooked area of bankruptcy law. One such issue involves the tax …
Race Matters In Bankruptcy Reform, A. Mechele Dickerson
Race Matters In Bankruptcy Reform, A. Mechele Dickerson
Missouri Law Review
On April 20, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of ("BAPCPA") was signed into law and became fully effective for cases filed on or after October 17, 2005. 4 After considering bankruptcy reform for almost a decade, Congress ultimately concluded that some debtors were abusing bankruptcy laws by, among other things, discharging debts they had the means to pay. To curb this perceived abuse, Congress decided to radically overhaul the consumer provisions of the Code by generally making it harder for an opportunistic or "Abusive Debtor" to discharge his debts. Given the sweeping nature of these changes, …
Potential And Peril Of Bapcpa For Empirical Research, The, Katherine Porter
Potential And Peril Of Bapcpa For Empirical Research, The, Katherine Porter
Missouri Law Review
This article surveys the history of bankruptcy data and identifies the BAPCPA provisions that bear directly on research. It concludes by examining how such studies will and should proceed. BAPCPA provides both opportunities and hazards to advance our understanding of bankruptcy. The development of comprehensive federal data offers the potential to dramatically increase the scope of knowledge about the bankruptcy system. The peril lies in the government conducting its research without the transparency and accountability necessary to convince private industry, academic scholars, and the general public of the integrity and usefulness of these data. Rather than eclipsing academic research, the …
Psychology And Bapcpa: Enhanced Disclosure And Emotion, Richard L. Wiener, Michael Holtje, Ryan J. Winter, Jason A. Cantone
Psychology And Bapcpa: Enhanced Disclosure And Emotion, Richard L. Wiener, Michael Holtje, Ryan J. Winter, Jason A. Cantone
Missouri Law Review
This article describes a program of research that applies social analytic jurisprudence to test some of the assumptions in consumer bankruptcy law and policy.4 Our work first seeks to describe selected provisions from the newly enacted bankruptcy amendments that pertain to enhanced disclosure requirements, and then to locate some of the behavioral assumptions implicit in these provisions. 5 Next, we assess the accuracy of these assumptions based on an experiment that we conducted looking at a simulated online shopping trip that we constructed specifically to test the effects of enhanced disclosure
Future Of Bankruptcy: A Roundtable Discussion
Future Of Bankruptcy: A Roundtable Discussion
Missouri Law Review
Moderator: Michelle Arnopol Cecil, William H. Pittman Professor of Law, University of Missouri-Columbia School of Law Participants: Marianne Culhane, Professor of Law, Creighton University School of Law A. Mechele Dickerson, Associate Dean for Academic Affairs and Fulbright and Jaworski Professor of Law, University of Texas School of Law The Honorable William Edmonds, Chief United States Bankruptcy Judge, Northern District of Iowa Daniel L. Keating, Associate Dean for Academic Affairs and Tyrrell Williams Professor of Law, Washington University School of Law Katherine Porter, Associate Professor of Law, University of Iowa College of Law John Pottow, Assistant Professor of Law, University of …
Good In Theory, Bad In Practice: The Unintended Consequences Of Bapcpa's Credit Counseling Requirement, Katherine A. Jeter-Boldt
Good In Theory, Bad In Practice: The Unintended Consequences Of Bapcpa's Credit Counseling Requirement, Katherine A. Jeter-Boldt
Missouri Law Review
On April 20, 2005, after nearly a decade of lobbying by the credit industry, President Bush signed the Bankruptcy Abuse and Consumer Protection Act (BAPCPA). The publicly stated goal of BAPCPA was to make bankruptcy less desirable so that debtors would stop abusing the protections of the Bankruptcy Code. Although Congress was motivated by laudable intentions, it is clear that BAPCPA contains at least one good idea that does not work in practice - the credit counseling requirement. Under BAPCPA, a debtor must receive credit counseling before filing for bankruptcy. Not only did Congress fail to instruct judges on the …
Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth
Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth
Missouri Law Review
As a real estate professor, I tend to focus on bankruptcy only as it intersects with mortgage law and Article 9 of the Uniform Commercial Code. Thus, I feel somewhat out of my element as a commenter in this symposium, and my observations may be suspect coming from a bankruptcy "outsider." But as an outside observer, it seems troublesome that bankruptcy's dispute resolution system - and particularly its multiple layers of appellate review - has always been so poorly designed to produce doctrinal clarity. And even if BAPCPA does resolve a number of specific legal issues that have bedeviled the …
No More Russian Roulette: Chapter 13 Cram-Down Creditors Take A Bullet, Jon W. Jordan
No More Russian Roulette: Chapter 13 Cram-Down Creditors Take A Bullet, Jon W. Jordan
Missouri Law Review
Until the United States Supreme Court's decision in Till v. SCS Credit Corp., secured creditors in Chapter 13 bankruptcy cases likely viewed the forced acceptance of a debtor's Chapter 13 repayment plan as a high-stakes game of chance. Prior to this decision, the interest rate applied to the deferred payments to "cram-down" creditors varied dramatically, depending upon the jurisdiction in which the debtor filed bankruptcy and the broad discretion of the bankruptcy court judge. However, by misinterpreting the legislative intent of Congress, the Supreme Court adopted a standard that will consistently under-compensate creditors. Suddenly, secured creditors' high-stakes game of chance …
Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster
Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster
Missouri Law Review
Certain debts are categorically barred from discharge through bankruptcy. Debt for money obtained by fraud is one such category. In Archer v. Warner, the United States Supreme Court addressed the issue of whether a voluntary settlement agreement between the parties that generally released underlying fraud claims so changed the nature of the debt as to render it dischargeable in bankruptcy. This Note explores the analysis employed by the Court and argues that, in light of the Court’s precedent in this area and underlying purpose of the Code, the Court in Archer reached the correct conclusion.
Missouri Law Regarding Punitive Damages And The Doctrine Of Remittitur, Edward S. Stevens
Missouri Law Regarding Punitive Damages And The Doctrine Of Remittitur, Edward S. Stevens
Missouri Law Review
The imposition of punitive damages can devastate defendants, be they individuals or large corporations. Fortunately for these defendants, the jury does not have the final word on the amount of damages. This Note addresses the circumstances under which punitive damages are available in Missouri and when the doctrine of remittitur will be used so that damage awards comport with Missouri's prohibition against excessive awards and the Due Process Clause of the Fourteenth Amendment.
Too Much And Too Little: A Bankruptcy Balancing Act, Michael C. Stoffregen
Too Much And Too Little: A Bankruptcy Balancing Act, Michael C. Stoffregen
Missouri Law Review
This is a case of too much and too little. It represents one court's attempt to deal with problems created by too much Congressional guidance in one area of the Bankruptcy Code and too little guidance in another. In 1994, Congress revised 11 U.S.C. § 106, adding a provision declaring that when a state files a claim in a bankruptcy proceeding, it has waived its sovereign immunity as to that claim.2 Two years later, the United States Supreme Court,.in Seminole Tribe v. Florida,3 limited Congress's power to expand Article I judicial powers to the Eleventh Amendment . The In re …
Res Judicata Effect Of Bankruptcy Court Judgments: The Procedural And Constitutional Concerns, The, George A. Martinez
Res Judicata Effect Of Bankruptcy Court Judgments: The Procedural And Constitutional Concerns, The, George A. Martinez
Missouri Law Review
Should a bankruptcy court's judgment bar further litigation of claims arising out of the series of events at issue in the bankruptcy proceeding based on the doctrine of res judicata? Or should res judicata apply only where the subsequent action would constitute a core,' as opposed to non-core, but related proceeding? These questions raise important procedural and constitutional issues about which the courts of appeals are currently split. In 1984, Congress responded to Northern Pipeline by enacting 28 U.S.C. § 157, which authorizes bankruptcy judges to hear all core proceedings arising under the bankruptcy code. The 1984 Act provides that …