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The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel
The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel
Osgoode Hall Law Journal
The rapid increase in the number of consumer bankruptcies in Canada and the United States over the past fifteen years has again focused attention on the philosophy and design of modern insolvency systems, and on the similarities and differences in the approaches adopted in Canada and the United States. In this article, the author points out that the single most important difference is that the United States has historically subscribed to the debtor's right to a "fresh start" after surrendering the debtor's non-exempt property, whereas Canadian law never has, and does not now, confer an absolute right of discharge. Although …
Options In Consumer Bankruptcy: An American Perspective, Jean Braucher
Options In Consumer Bankruptcy: An American Perspective, Jean Braucher
Osgoode Hall Law Journal
In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …
The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren
The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren
Osgoode Hall Law Journal
The political atmosphere in which changes to the American bankruptcy laws occur has shifted since the adoption of the 1978 amendments to the United States Bankruptcy Code. Bankruptcy professionals, who once effectively controlled much of the legislative debate, have lost ground to creditors, who have become much more powerful in influencing bankruptcy legislation. The result has been the politicization of the debate and the setting of the stage for a series of amendments that have rhetorical appeal, but that do not reflect the underlying factual reality of the bankruptcy system.
The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler
The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler
Osgoode Hall Law Journal
The United States and, to a slightly lesser extent, Canada have come to regard personal bankruptcy as a routine method of discharging debts, enabling the debtor to make a fresh start. By contrast, in the United Kingdom, bankruptcy is still seen as a remedy of last resort, and creditors may retain the right to enforce debts. The difference in approach is due to the fact that the United States and Canada have traditionally given priority to risk taking over security, while the United Kingdom has continued to give priority to security over risk taking. However, the British government's enthusiasm for …
Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford
Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford
Osgoode Hall Law Journal
This article first summarizes the many restrictions that the American consumer bankruptcy system imposes on the enforcement of the contractual rights of secured creditors. The restrictions include the ability, in Chapter 13 proceedings particularly, of the debtor to "strip the lien" of the undersecured creditor, releasing the collateral from the lien upon payment, over time, of only the value of the collateral when it is less than the full amount owing. The article then summarizes many changes in the rights of secured creditors currently being proposed and debated in Congress. The author concludes with his own proposals that would enhance …