In Chapter 13, in Virginia, your mortgage payment needs to be on-the-dot current. Paying your mortgage payment by the 14th of the month (or later) gets your Chapter 13 case thrown out at the goal line. That’s because of a local bankruptcy rule, Rule 3002.1-1 in the Eastern District of Virginia Why? Your mortgage is due on the first. They may give you a grace period until the 15th, but it’s due on the first. When you make your last Chapter 13 payment, the Chapter 13 trustee is required by Bankruptcy Rules 3002.1 to ask the mortgage company if you are current. That rule was considered a big victory for the consumer when it passed. The mortgage company had to say if they thought you were current or behind. If you are your mortgage on the 14th instead of the first, your Chapter 13 will be disqualified at the goal line. In this court, that victory turned into a nightmare, in a case called Evans. Now, if the mortgage company says you haven’t yet made this month’s payment, Thomas Gorman, the Chapter 13 Trustee, tells the Judge that your case should be thrown out. Unless you get caught up–and the mortgage company agrees in writing you are caught up–your case is tossed out. You are disqualified at the goal line. What Should You Do? When you are at the third to last payment on your Chapter 13, catch up the house! Make the mortgage payment on the first of the month. Eat oatmeal for a month, borrow from family, stop your 401k contribution, cut expenses everywhere. Get the mortgage payment in on the first of the month. Do what you have to do. There is a detour Suppose instead of being two weeks behind, you are three months behind on your mortgage payment. Sometimes that’s better. Why? The mortgage company will likley go to the judge and ask that your house be taken out of the Chapter 13 bankruptcy. That’s called relief from the automatic stay. If your house is taken out of the Chapter 13, then this problem doesn’t come up.  The Chapter 13 Trustee won’t ask the mortgage company at the end 0f the case if you are current, and the judge won’t throw your case out. Of course you do have to catch the house up outside of the bankruptcy. If you are close to the end of the case and sitting a few months behind, you may want the mortgage company to take your house out of the bankrutpcy by relief from the automatic stay.  If you can get close to caught up, they won’t forclose you. And the rest of your Chapter 13 debts can be cleared at discharge. But if you are only close to caught up and the house is still inside the bankruptcy, your Chapter 13 is thrown out at the goal line. Those other debts you were paying in Chapter 13? They can all come back. Do We Need to Talk? Are you close to the end of your case and still struggling with the mortgage?  Not sure what to do?  Call Vanessa at 703-335-7793 and set up a time for us to talk.     The post Your mortgage payment needs to be on-the-dot current appeared first on Robert Weed Bankruptcy Attorney.

Tips For Declaring Bankruptcy In Arizona In 2025 Despite seeming to pass instantly and last way too long at the same time, 2024 has drawn to a close and the new year is upon us. As every issue that has been plaguing our country for generations comes to a head, Americans also face a cost-of-living crisis that can quickly create serious financial problems. More people than ever live paycheck to paycheck. All it takes is one unexpected medical bill, fender bender, being the victim of a low-level crime, or even simple bad luck for a person to begin accruing debt that becomes almost irreversible. At this point, creditors can take actions that will make it harder and harder for the debtor to regain control of their financial situation. If the creditor pursues a wage garnishment, they can automatically take a quarter of the debtor’s paycheck until the debt is repaid, which can cause them to fall behind on other bills. If the creditor repossesses the debtor’s vehicle, they could lose their job, fail their classes, etc. This is a vulnerable position to be in, and some companies will take advantage of this fact by selling debt relief options that only increase debt when bankruptcy is a more effective option.  Want to pause the clock on creditors and potentially clear debts in one fell swoop? Our Arizona bankruptcy firm offers skilled representation with flexible payment plan options. You can learn more about the process of declaring bankruptcy with our firm with a risk-free phone consultation. Schedule your free consultation today at 480-470-1504.  Understand How Your Bankruptcy Timing Could Affect Your Tax Refund If your budget is tight, a few hundred or even thousand dollars from a tax refund could be a huge deal for you and your family. Receiving your tax refund could help you afford expenses like vehicle maintenance and repairs, medical checkups and treatments, and other basics necessary for a comfortable standard of living. But you should also be aware of what could happen to your tax refund if you declare bankruptcy.  Arizona does not have an exemption that bankruptcy debtors can specifically use to protect their tax refunds. It also doesn’t offer a wildcard exemption that the debtor can use on any asset of their selection, nor does it allow debtors to use the federal exemptions, which offer a wildcard exemption. The trustee has authority to take a certain percentage of a debtor’s post-bankruptcy tax refund- this is how the trustee gets paid. The amount the trustee can take depends on the month of the year in which the bankruptcy petition was filed. So hypothetically, if a debtor filed their bankruptcy in January, the trustee could take 1/12, but if the debtor filed their case in July, the trustee could take 7/12. A debtor anticipating their tax refund may want to file their case as early as possible to reduce how much can be taken by the trustee. Another option would be to wait until receiving and spending the tax refund (on reasonable purchases) before filing for bankruptcy. For tips on which types of purchases to make to spend your tax refund before filing for bankruptcy in Arizona, call 480-470-1504 for your free consultation with our firm.  Prepare To Lose Your Credit Cards And Avoid Certain Pre-Bankruptcy Credit Card Spending Many people considering filing for bankruptcy don’t realize that it doesn’t only clear their credit card debts, but the ability to use credit cards in general until the case is complete. A bankruptcy debtor loses all of their credit cards upon filing for bankruptcy, regardless if they were current on their monthly bill. There is no picking and choosing which debts are cleared and which can stay. If you have points and other benefits saved up, you should use them to your benefit as much as possible before filing your petition. You can apply for new credit cards- carefully- after your case has been discharged. This is approximately 3-6 months for chapter 7 debtors, and 3 or 5 years for chapter 13 debtors.  A bankruptcy filing at the start of the year means that your holiday spending might affect the dischargeability of your credit card debts. Your bankruptcy trustee will be reviewing your credit card statements for luxury purchases and cash advances. These are valuable assets not considered necessary to daily living that theoretically could be contributed to pay off your bankruptcy debts. And if your credit card statements reflect recent cash advances, this could create suspicion that you have a stash of cash at home that isn’t protected by exemptions. Avoid cash advances of more than $1,100 in the 70-day period before filing your bankruptcy petition. You should also avoid luxury purchases exceeding $850 in the 90-day period before your filing. Luxury purchases are those not necessary to maintain a reasonable standard of living, which can sometimes mean choosing designer brands over generic for items that are otherwise necessary. Surpassing these restrictions can result in you remaining liable for these debts after your bankruptcy discharge. It can also draw stricter scrutiny to other issues in your bankruptcy petition. Learn more about credit card spending while preparing for bankruptcy by scheduling your free consultation with our firm- call 480-470-1504 to get started.  Don’t Make Preferential Payments And Transfers If you believe that you will be filing for bankruptcy in the new year, now is not the time to repay friends and family in favor of your other creditors or transfer valuable assets to them that could be lost if you file. Sometimes, potential bankruptcy filers come to us with the idea of transferring a second vehicle that isn’t protected by Arizona’s bankruptcy exemption to a sibling or friend. Lawmakers didn’t miss these types of potential loopholes when writing the Bankruptcy Code. The trustee assigned to your case will be reviewing your financial information to make sure that you didn’t make any such transfers in preparation for your bankruptcy filing. If the trustee catches these kinds of transfers, they have the authority to “claw back” payments and transfers, or you could be left to compensate your bankruptcy estate for that amount. This can be embarrassing and awkward at a minimum, or even be fatal to your bankruptcy case. If you have concerns about transfers and preferential payments before an Arizona bankruptcy filing, call 480-470-1504 for your free consultation.  Prepare For A 2025 Bankruptcy Filing With Our Arizona Bankruptcy Team Many people already view the new year as a fresh start, and this will only become more true if you discharge your debts through bankruptcy. You should always take advantage of time to prepare if you foresee a legal matter on your horizon. Although special filings are available for emergencies, thoroughly planning your bankruptcy is the best way to avoid issues throughout your case. Get the most out of your bankruptcy filing and make 2025 the year of your best financial decisions yet. Want to learn more about Arizona bankruptcy law, changes coming in 2025, and everything else you need to know to make your case run smoothly? Learn more about your Arizona law office with your free consultation with your free consultation at 480-470-1504.  MY AZ LAWYERS Email: [email protected] Website: www.myazlawyers.com Mesa Location 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: 480-448-9800 Phoenix Location 343 West Roosevelt, Suite #100 Phoenix, AZ 85003 Office: 602-609-7000 Glendale Location 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: 602-509-0955 Tucson Location 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: 520-441-1450 Avondale Location 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: 623-469-6603 The post Tips For Declaring Bankruptcy In Arizona In 2025 appeared first on My AZ Lawyers.

Tips For Declaring Bankruptcy In Arizona In 2025 Despite seeming to pass instantly and last way too long at the same time, 2024 has drawn to a close and the new year is upon us. As every issue that has been plaguing our country for generations comes to a head, Americans also face a cost-of-living crisis that can quickly create serious financial problems. More people than ever live paycheck to paycheck. All it takes is one unexpected medical bill, fender bender, being the victim of a low-level crime, or even simple bad luck for a person to begin accruing debt that becomes almost irreversible. At this point, creditors can take actions that will make it harder and harder for the debtor to regain control of their financial situation. If the creditor pursues a wage garnishment, they can automatically take a quarter of the debtor’s paycheck until the debt is repaid, which can cause them to fall behind on other bills. If the creditor repossesses the debtor’s vehicle, they could lose their job, fail their classes, etc. This is a vulnerable position to be in, and some companies will take advantage of this fact by selling debt relief options that only increase debt when bankruptcy is a more effective option.  Want to pause the clock on creditors and potentially clear debts in one fell swoop? Our Arizona bankruptcy firm offers skilled representation with flexible payment plan options. You can learn more about the process of declaring bankruptcy with our firm with a risk-free phone consultation. Schedule your free consultation today at 480-470-1504.  Understand How Your Bankruptcy Timing Could Affect Your Tax Refund If your budget is tight, a few hundred or even thousand dollars from a tax refund could be a huge deal for you and your family. Receiving your tax refund could help you afford expenses like vehicle maintenance and repairs, medical checkups and treatments, and other basics necessary for a comfortable standard of living. But you should also be aware of what could happen to your tax refund if you declare bankruptcy.  Arizona does not have an exemption that bankruptcy debtors can specifically use to protect their tax refunds. It also doesn’t offer a wildcard exemption that the debtor can use on any asset of their selection, nor does it allow debtors to use the federal exemptions, which offer a wildcard exemption. The trustee has authority to take a certain percentage of a debtor’s post-bankruptcy tax refund- this is how the trustee gets paid. The amount the trustee can take depends on the month of the year in which the bankruptcy petition was filed. So hypothetically, if a debtor filed their bankruptcy in January, the trustee could take 1/12, but if the debtor filed their case in July, the trustee could take 7/12. A debtor anticipating their tax refund may want to file their case as early as possible to reduce how much can be taken by the trustee. Another option would be to wait until receiving and spending the tax refund (on reasonable purchases) before filing for bankruptcy. For tips on which types of purchases to make to spend your tax refund before filing for bankruptcy in Arizona, call 480-470-1504 for your free consultation with our firm.  Prepare To Lose Your Credit Cards And Avoid Certain Pre-Bankruptcy Credit Card Spending Many people considering filing for bankruptcy don’t realize that it doesn’t only clear their credit card debts, but the ability to use credit cards in general until the case is complete. A bankruptcy debtor loses all of their credit cards upon filing for bankruptcy, regardless if they were current on their monthly bill. There is no picking and choosing which debts are cleared and which can stay. If you have points and other benefits saved up, you should use them to your benefit as much as possible before filing your petition. You can apply for new credit cards- carefully- after your case has been discharged. This is approximately 3-6 months for chapter 7 debtors, and 3 or 5 years for chapter 13 debtors.  A bankruptcy filing at the start of the year means that your holiday spending might affect the dischargeability of your credit card debts. Your bankruptcy trustee will be reviewing your credit card statements for luxury purchases and cash advances. These are valuable assets not considered necessary to daily living that theoretically could be contributed to pay off your bankruptcy debts. And if your credit card statements reflect recent cash advances, this could create suspicion that you have a stash of cash at home that isn’t protected by exemptions. Avoid cash advances of more than $1,100 in the 70-day period before filing your bankruptcy petition. You should also avoid luxury purchases exceeding $850 in the 90-day period before your filing. Luxury purchases are those not necessary to maintain a reasonable standard of living, which can sometimes mean choosing designer brands over generic for items that are otherwise necessary. Surpassing these restrictions can result in you remaining liable for these debts after your bankruptcy discharge. It can also draw stricter scrutiny to other issues in your bankruptcy petition. Learn more about credit card spending while preparing for bankruptcy by scheduling your free consultation with our firm- call 480-470-1504 to get started.  Don’t Make Preferential Payments And Transfers If you believe that you will be filing for bankruptcy in the new year, now is not the time to repay friends and family in favor of your other creditors or transfer valuable assets to them that could be lost if you file. Sometimes, potential bankruptcy filers come to us with the idea of transferring a second vehicle that isn’t protected by Arizona’s bankruptcy exemption to a sibling or friend. Lawmakers didn’t miss these types of potential loopholes when writing the Bankruptcy Code. The trustee assigned to your case will be reviewing your financial information to make sure that you didn’t make any such transfers in preparation for your bankruptcy filing. If the trustee catches these kinds of transfers, they have the authority to “claw back” payments and transfers, or you could be left to compensate your bankruptcy estate for that amount. This can be embarrassing and awkward at a minimum, or even be fatal to your bankruptcy case. If you have concerns about transfers and preferential payments before an Arizona bankruptcy filing, call 480-470-1504 for your free consultation.  Prepare For A 2025 Bankruptcy Filing With Our Arizona Bankruptcy Team Many people already view the new year as a fresh start, and this will only become more true if you discharge your debts through bankruptcy. You should always take advantage of time to prepare if you foresee a legal matter on your horizon. Although special filings are available for emergencies, thoroughly planning your bankruptcy is the best way to avoid issues throughout your case. Get the most out of your bankruptcy filing and make 2025 the year of your best financial decisions yet. Want to learn more about Arizona bankruptcy law, changes coming in 2025, and everything else you need to know to make your case run smoothly? Learn more about your Arizona bankruptcy options with your free consultation with your free consultation at 480-470-1504.  MY AZ LAWYERS Email: [email protected] Website: www.myazlawyers.com Mesa Location 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: 480-448-9800 Phoenix Location 343 West Roosevelt, Suite #100 Phoenix, AZ 85003 Office: 602-609-7000 Glendale Location 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: 602-509-0955 Tucson Location 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: 520-441-1450 Avondale Location 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: 623-469-6603 The post Tips For Declaring Bankruptcy In Arizona In 2025 appeared first on My AZ Lawyers.

Bankr. MDNC: Hughes v. MTGLQ Ed Boltz Tue, 12/31/2024 - 18:30 Summary: Brenda Hughes asserted that MTGLQ and U.S. Bank violated the discharge injunction under 11 U.S.C. § 524(a) and sought a determination that a state court judgment reforming a deed of trust was void. Prior to bankruptcy,  Ms.  Hughes  had signed a promissory note secured by a deed of trust, which was,  after the completion of her bankruptcy, reformed by a state court to correct errors.    Ms.  Hughes alleged that the Defendants violated the discharge injunction by continuing foreclosure actions and sending communications related to the debt.  She further  sought a declaration that the reformation judgment was void and that Defendants' actions violated the Bankruptcy Code. The bankruptcy court began by finding jurisdiction over the adversary proceeding and ruling that the claims were not barred by the Rooker-Feldman doctrine or issue/claim preclusion, as the claims involved enforcing the discharge injunction rather than challenging the state court's judgment. The bankruptcy court found that the reformation of the deed of trust was a permissible in rem action that did not violate the discharge injunction nor,  since it did not impermissibly seek to reestablish Ms.  Hughes personal liability,  was it void under 11 U.S.C. § 524(a)(1)..  Similarly,  the foreclosure proceeding, which enforced the lien on the property (but not personal liability), was also permissible and did not violate the discharge injunction.  Lastly, the foreclosure letter and Requests for Contact were deemed informational and necessary for pursuing in rem rights, thus not violating the discharge injunction. A demand letter dated  August 13, 2023,  which stated that Shellpoint was a debt collector  seeking to collect a debt,   could, however,  plausibly be interpreted as a demand for payment and allowed this claim to proceed, along with the monthly mortgage statements,  which did not appear to have any bankruptcy discharge disclaimer. Accordingly,  the court granted Defendants’ motion to dismiss claims related to the reformation action, foreclosure action, and specific communications (e.g., requests for contact),  but allow the claims related to  the August 13, 2023 letter and mortgage statements  to proceed.  Commentary: This case may be impacted by Koontz v. SN Servicing,  which was argued at the 4th Circuit Court of Appeals at the beginning of December and raises issues regarding the extent to which the lack of personal liability (in Koontz resulting from the lack of a reaffirmation)  impacts subsequent in rem  collection efforts. See the attached amicus brief.   With proper attribution,  please share this post. To read a copy of the transcript, please see: Blog comments Attachment Document hughes_v._mtglq.pdf (831.58 KB) Document amicus_brief_koontz.docx (197.19 KB) Category Middle District

 SBA EIDL Loans & the Case of the “Missing Guarantee”Many clients have recently contacted us with a similar issue. They claim they never personally guaranteed their SBA loans. However, after their SBA loans defaulted, the SBA is reaching out to them, stating that they did personally guarantee their business's SBA EIDL loan and are requesting payment.For context, federal law requires a personal guarantee when an SBA loan exceeds $200,000.There appear to be two scenarios where the "Missing Guarantee" issue arises. First, the SBA made a loan to a business exceeding $200,000 and failed to require an individual to sign a guarantee. Second, the SBA initially loaned less than $200,000 to a business, then provided an additional amount exceeding $200,000 by amending the loan documents but did not require the borrower to sign a guarantee.According to SBA records, since the loan exceeded $200,000, it should have been guaranteed.What should one do in this situation?Under New York law, a guaranty must be in writing to be enforceable. In Ashkir v. Wilson, No. 98 Civ. 2632, 1999 WL 710788, at *9 (S.D.N.Y. Sept. 13, 1999), it was stated that an agent is not personally liable for the obligations of his principal unless there is a written and signed personal guarantee.In European American Bank & Trust Co. v. Boyd, 516 N.Y.S.2d 714, 716 (2d Dept 1987), it was affirmed that a guarantee is enforceable as long as it is signed by the guarantor.While each state's law regarding guarantees may vary, most states require that a guarantee be in writing and executed to be enforceable.Our advice to individuals in these situations is: 1. Check your SBA loan documentation to ensure you did not sign a guaranty. 2. Request that the SBA send you a copy of an executed guaranty. 3. If the SBA cannot produce the guaranty, your position should be that you are not personally liable to repay the loan upon default. If the SBA were to litigate this position, we believe you would prevail, especially in New York State.We advise all SBA borrowers with a case involving a "Missing Guaranty" to discuss their case with an experienced attorney as soon as possible.Jim Shenwick, Esq  917 363 3391  [email protected] Please click the link to schedule a telephone call with me.https://calendly.com/james-shenwick/15minWe help individuals & businesses with too much debt!

Law Review: Antill, Samuel and Bellon, Aymeric, The Real Effects of Bankruptcy Forum Shopping (December 11, 2024). Ed Boltz Wed, 12/25/2024 - 20:36 Available at:    Available at SSRN: https://ssrn.com/abstract=5052176 or http://dx.doi.org/10.2139/ssrn.5052176 Summary: Many non-Delaware firms strategically file for bankruptcy in Delaware. Should this "forum shopping" be allowed? This question has motivated six congressional bill proposals over decades of policy debate. Using a novel natural experiment and Census-Bureau microdata, we inform this debate. Comparing observably similar firms within a Delaware-adjacent state, we show that physical proximity to Delaware predicts forum shopping. Instrumenting with proximity, we find that forum shopping causally: (i) prevents closures and liquidations, (ii) shortens bankruptcies, (iii) boosts creditor recovery, and (iv) increases post-bankruptcy employment by 62%. Proximity to Delaware is uncorrelated with pre-bankruptcy employment trends, validating the exclusion restriction. Commentary: While admitting that this paper "is silent on the implications of forum shopping to courts other than Delaware",  unrecognized  are the disparate responses by courts,  likely including in Delaware,  to corporations that forum shop to find just the right case law or judge and when consumers have the temerity and gall to similarly file in a convenient but improper forum. With proper attribution,  please share this post.    To read a copy of the transcript, please see: Blog comments Attachment Document ssrn-5052176_compressed.pdf (393.23 KB) Category Law Reviews & Studies

Law Review: Nagel, Fabian, Consumer Bankruptcy Audits (October 12, 2024). Ed Boltz Mon, 12/23/2024 - 18:27 Available at:    https://ssrn.com/abstract=4991384 or http://dx.doi.org/10.2139/ssrn.4991384 Abstract: Bankruptcy insures consumers against large and unexpected wealth shocks. However, debtors may abuse this insurance. Indeed, close to 20% of consumer bankruptcy filings contain at least one material misstatement. I exploit the conditionally random assignment of audits to estimate the effect of mandatory audits on debt forgiveness in consumer bankruptcy. I find that audits reduce debt forgiveness, but only when alternative oversight is low (Chapter 7). Audits come at the cost of increased case complexity for filers, deteriorating the long-run financial health of unsophisticated filers. Generally, audits drive a reallocation of debt relief from non-compliers and misreporters to truthful filers. Aggregate calculations show that the reduction in debt forgiveness due to misstatements and deterrence exceeds the direct cost of increasing the audit rate when oversight is low. Reductions in debt relief due to deterrence exceed reductions due to identified misstatements two-fold. Commentary: While the conclusions of this research and analysis about the costs and benefits of random consumer audits is not a clear as studies have been regarding the requirement of pre-filing credit counseling (basically a pointless  filing fee paid to private entities),  this does lead to questioning whether audits in highly scrutinized Chapter 13 cases is warranted. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document consumer_bankruptcy_audits_compressed.pdf (453.88 KB) Category Law Reviews & Studies

4th Cir.: Wesker v. Bank of America- Failure to State Claims following Denial of Mortgage Modification Application Ed Boltz Fri, 12/20/2024 - 15:40 Summary: The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of Mark and Natasha Wesker’s claims against Bank of America. The Weskers alleged the bank mishandled their application for a modification of their home equity line of credit, leading to financial harm and damage to their credit score. The Weskers asserted the following claims against Bank of America: Professional negligence and negligent misrepresentation Detrimental reliance Fair Credit Reporting Act (FCRA) violations (negligent and willful) Maryland Consumer Protection Act (MCPA) violation Tort Claims (Negligence and Misrepresentation): The court held that under Maryland law, a bank owes no duty of care in handling loan modification applications unless there is contractual privity or "special circumstances." Here, the Weskers failed to establish either because neither the line of credit contract imposed  any modification obligations on Bank of America nor did Bank of America  provide any extraordinary services or derive abnormal benefits. As to detrimental reliance, the Weskers failed to allege any "clear and definite" promises made by the bank that could support their claim.  Bank of America's reporting of the Weskers’ delinquency and charge-off to credit agencies was found to be accurate, with  no basis to challenge the completeness or accuracy of the reporting under the FCRA. The Weskers’ allegations also did not meet the heightened pleading standard for fraud under Rule 9(b), which was required for a deceptive practices claim under tort and the MCPA.  Commentary: For other cases related to when a mortgage lender can and cannot be held liable,  see: Bankr. E.D.N.C.: In re Alvarez Bankr. E.D.N.C.: McClendon v. Walter Home Mortgage Bankr. M.D.N.C.: Rutledge v. Wells Fargo Bank, N.A.   With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document wesker_v._bank_of_america.pdf (202.24 KB) Category 4th Circuit Court of Appeals

Law Review: Mary J. (Newborn) Wiggins, The New Rawlsian Theory of Bankruptcy Ethics, 16 CARDOZO L. REV. 111 (1994) Ed Boltz Fri, 12/20/2024 - 15:34 Available at:    https://larc.cardozo.yu.edu/clr/vol16/iss1/5 Abstract: Bankruptcy law was once considered a rather insular subspecialty of commercial and debtor-creditor law. Bankruptcy scholars of an earlier time devoted their main energies to drafting bankruptcy legislation for Congress, mastering the particulars of that legislation, and systematizing the case law. When these scholars attempted to local larger themes in bankruptcy, they labored with great deference to positive expressions of bankruptcy’s purpose. Bankruptcy law’s relative insularity began to fade with the innovative work of Professor Thomas Jackson, who developed what he argued was a comprehensive theoretical explanation for bankruptcy’s existence. His explanation was based on a contractual paradigm called “the creditor’s bargain.” Several bankruptcy scholars, most prominently Elizabeth Warren and David Gray Carlson, have challenged the creditor’s bargain model on several fronts, but a direct theoretical assault was slow to emerge until Professor Donald Korobkin presented a nascent theory based upon what he called a “values-based account” of bankruptcy. Professor Korobkin then buttressed the values-based account with a contractarian model of his own called “the bankruptcy choice model.” In this Article, Professor Newborn explores Professor Korobkin’s theoretical model, distinguishes his model from the creditor’s bargain model, and identifies the significant descriptive and analytical insights Professor Korobkin’s bankruptcy choice model generates. At the same time, Professor Newborn identifies several controversial assumptions that seriously undermine the theory’s explanatory and normative force. Professor Newborn concludes with thoughts on her Article’s implications for the role of highly theoretical claims in bankruptcy scholarship. Commentary: I generally  stick to just blogging about recent cases and law review articles,  but I tend to nerd out about papers that look at the philosophy undergirding bankruptcy and when I stumbled on this about John Rawls and Bankruptcy Ethics,  even though 30 years old,  I couldn't help but share it. Building on even earlier work by  Donald R. Korobkin, including Rehabilitating Values: A Jurisprudence of Bankruptcy, 91 COLUM. L. REV. 717, 721 (1991),  this paper posits two Rawlsian two principles to govern relationships in financial distress:  The Principle of Inclusion"  through which each party- creditors and debtors- affected by financial distress should have the threshold eligibility to press his or her demands in that context; and  The Principle of Rational Planning which First seeks to maximize (i.e., promote most fully and effectively) those diverse demands   by using a rational plan.  Second,  mandates that when it is impossible to promote one aim without frustrating another, protects  those in the worst-off positions in the context of financial distress  over those occupying the better-off positions. Unlike the principle of creditor wealth maximization, promoted by Douglas Baird and Thomas Jackson elsewhere as an ethical or philosophical basis for bankruptcy, the principle of rational planning does not filter all decisions 'through a prism of creditor prosperity. For something more recent about John Rawls' theory of justice (including a little bit about bankruptcy),  I also highly recommend Free and Equal: A Manifesto for a Just Society  by Daniel Chandler. To read a copy of the transcript, please see: Blog comments Attachment Document rawlsian_bankruptcy_ethics_compressed-1-16.pdf (910.03 KB) Document rawlsian_bankruptcy_ethics_compressed-17-37.pdf (746.91 KB) Category Law Reviews & Studies