Consumer Bankruptcy

On May 7, 2019, the Consumer Financial Protection Bureau (CFPB or Bureau) issued its long-awaited Notice of Proposed Rulemaking (NPR) for debt collection. These proposals precede a final rule that will be known as Regulation F and will be the first rules issued under the tenure of Director Kathleen Kraninger. The NPR was published in the Federal Register on May 19, 2019.[1]

Whether it’s a client in financial difficulty or a client pursuing the collection of assets or debts owed, insolvency issues play a prominent role for federal practitioners with commercial and general litigation practices. However, the relatively small size and collegial nature of the bankruptcy bar in many jurisdictions — coupled with the need to move quickly when handling disputes in bankruptcy to preserve value — sometimes lead to relatively informal discovery practices in bankruptcy court. While informal exchanges of information often are sufficient to resolve disputes, practitioners should be mindful of the formal discovery processes set forth in Rule 26 of the Federal Rules of Civil Procedure (the “Rules”), as made applicable by Rule 7026 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). This article explores the mechanisms available under Rules 26(a)(2) and 26(b)(3)-(5) with respect to privilege and expert discovery in bankruptcy litigation.

On May 19, 2019, Senator Dick Durbin introduced Senate Bill 1414, which proposes a simple solution to the ongoing question of how student loans should be handled in bankruptcy. It would strike § 523(a)(8) in its entirety from the Bankruptcy Code, thereby making any governmental or private student loan immediately dischargeable. It is unlikely that this bill will be passed in this Congress, at least not without significant amendments. However, given that Senators Warren, Harris, Klobuchar and Sanders were co-sponsors of the bill, it seems likely that the dischargeability of student loans will be a topic of discussion in the 2020 election and that reform might be on the way.

The CFPB enacted certain changes for 2017 and 2018 which bring about fundamental changes in the practice and daily life of consumers, servicers, trustees and bankruptcy practitioners. The new rules add additional forms and heightened requirements that will affect the daily practice of anyone involved in the mortgage and lending world. The program seeks to walk attendees through the highlighted changes which will specifically impact the parties involved in a bankruptcy case, with an eye towards what to expect, areas that are impacted, and potential 'danger zones' that will require additional foresight and attention.

Hear a stimulating, high energy discussion involving a debtor's attorney, a chapter 12 trustee and a bankruptcy judge sharing the special and surprising aspects of chapter 12. Learn tips to navigate the challenges and to evaluate this chapter choice. Topics covered will include farmer and fisherman bankruptcies, cramming down homes, long term amortizations, tax benefits, and eligibility requirements. This program is not just for chapter 12 practitioners - all bankruptcy practitioners and judges will enjoy this one hour overview of one of the most fascinating chapters of the Code.

The webinar will provide an overview of the National Form Plan and the opt-out compromise, as well as an update on the current status of the proposed rules. There will be a presentation about the other changes to the Federal Rules of Bankruptcy Procedure. Speakers will also lead a discussion of the requirements of Rule 3015.1 for courts choosing to opt out of the National Form Plan.