On Bankruptcy and Mediation
BAPCPA By: Donald L Swanson Here are five points explaining why the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) should be enacted . . . appearing on the opening page of this “Report of the Committee on the Judiciary, House of Representatives” (at fn. 1, emphasis added): “Shoplifting is wrong; bankruptcy is also... Continue Reading →
By Donald L. Swanson “[T]he appellant would not have acquired priority over other creditors by the sheriff's levy, for the obvious reason that the right of property in the goods seized under the execution had previously passed” to the assignee under Debtor’s ABC. Reed v McIntyre, 98 U.S. 507, 512 (1878). Facts The Debtor, in the... Continue Reading →
BAPCPA By: Donald L Swanson Before 1998, (i) all student loans from for-profit lenders were dischargeable in bankruptcy, but (ii) student loans backed by the federal government or from non-profits were dischargeable in only these circumstances: when the student loan “became due more than 7 years . . . before the date of the filing of... Continue Reading →
By: Donald L Swanson Here are three propositions of law, based on the U.S. Supreme Court’s Clark v. White, 13 U.S. 178 (1838), opinion: absent evidence of wrongful knowledge or intent, a creditor’s efforts at racing-to-the-courthouse to collect a debt are among the basic rights of contract that cannot be abridged by the states; state laws... Continue Reading →
BAPCPA By: Donald L Swanson BAPCPA harmed honest but unfortunate consumers in these United States. It did so by moving them out of Chapter 7 bankruptcy and into an unworkable Chapter 13 system that few consumers can use effectively in times of economic stress. That’s a given. But the up-side tradeoff that’s being pitched to us... Continue Reading →
By: Donald L Swanson The common law of assignments for benefit of creditors ("ABCs”) has been around for a very long time as an out-of-court process under the law of trusts: debtor is trustor, assignee is trustee, and debtor’s creditors are beneficiaries. And the common law of ABCs had already been well-established, when the U.S. Constitution... Continue Reading →
BAPCPA By: Donald L Swanson Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”): “A person who had a heart attack is treated the same as someone who had a spending spree at the mall”; and So, BAPCPA created a “worsening of the value” of bankruptcy as a means of protecting middle class... Continue Reading →
Report by Henry G. Newton in the May 1900 Yale Law Journal By: Donald L Swanson The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is a bi-partisan law: enacted on a vote of 302 yaes and 126 nays in the House and on a vote of 75 yaes and 24 nays in the... Continue Reading →
By: Donald L Swanson Congress must be permitted “at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” Granfinanciera v. Nordberg, 492 U.S. 33, 94 (1989) (Justices Blackmun and O’Connor dissenting, emphasis added). Justices Blackmun and O’Connor were right, of... Continue Reading →
By: Donald L Swanson Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on April 14, 2005. It was signed into law on April 20, 2005. And it applied to all bankruptcy cases filed after October 17, 2005. So, the year 2025 is the 20th anniversary of all such dates. Regressive Law BAPCPA is... Continue Reading →
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