I’ve been reading many interesting comments online about yesterday’s Supreme Court ruling in Espinosa. Some of my colleagues are suggesting that this is a huge win for consumer debtors. I think Mr. Espinosa is justifiably happy. I’m not sure creditor’s attorneys are happy. I’m think debtor’s attorneys can be happy, sort of. I think Bankruptcy Judges might have something to be concerned with… and if it concerns Bankruptcy Judges, it ought to concern me.
And it does.
In another unanimous decision relating to an important bankruptcy issue, the US Supreme Court today ruled that a student loan creditor’s failure to object to confirmation to a chapter 13 plan was fatal to the creditor’s post-discharge attempts to collect the debt.
Yesterday, I was discussing a “Debt Relief Agency” as it is defined in the Bankruptcy Code. Part of the angst I have with the whole debt relief agency provisions is that I am – by definition – only a debt relief agencies to “assisted persons.” Debt relief agencies have certain specific obligations… but only to “assisted persons.” Before I continue writing, I’m going to take some aspirin; this analysis made my head hurt.
In yesterday’s blog, I suggested that some attorneys – namely on Craigslist – were not complying with the BAPCPA imposed requirement that they disclose that they are a “debt relief agency.” That might not have been completely fair.
Certainly, when an attorney fits into the definition of a “debt relief agency”, they must disclose that fact and are obligated to comply with additional disclosure requirements. But, if an attorney does not fit into the definition of a “debt relief agency”, may they still represent individuals in consumer bankruptcy matters? The answer is yes… and that raises some interesting questions.
As I mentioned earlier this week, the US Supreme Court issued a ruling upholding the BAPCPA requirement that attorneys be considered “debt relief agencies.”
So we’re clear: I did not go to debt relief agency school. I went to law school. I’m not a member of the Boston Bar Association Debt Relief Agency Steering Committee; it’s the Bankruptcy Steering Committee. I’m not a member and author for the American Debt Relief Institute; it’s the American Bankruptcy Institute. I’m not a debt relief agent. I’m an attorney.
Now that I’ve cleared the air on that, let me share with you some of my concerns with this decision and its implications.
Have you see advertisements for bankruptcy attorneys and seen this phrase?
Has a bankruptcy attorney ever said to you “sorry, we cannot advise you to incur debt because you’re seeking bankruptcy protection”?
Ever wonder why? Well, wonder no more. This morning, the Supreme Court of the United States issued its decision in the case of Milvatez, Gallop & Milavetz, P.A., et al. v. United States. The high court has held that (1) attorneys who give bankruptcy assistance (as defined in the Bankruptcy Code) are debt relief agencies; (2) attorneys cannot advise clients to incur debt because they are filing bankruptcy. The decision is 35 pages, and I’ll be reading through it this week.
This first appeared on May 27, 2008. Unfortunately even today, there are people looking to scam those who can least afford it. If you’re facing foreclosure or know someone who is, this is an important read.
I first posted this on February 18, 2008 – more than two years ago… before the election. As I was reading through it, it occurred to me… I wasn’t far off base. Some of the links no longer lead to the page intended, but it’s worth a second look – and perhaps a second thought.
Today, we have something a different… our first guest blogger: a former client who shares her perspectives on her journey into, through and out of bankruptcy.
As you can see, in the title I use the “F” word. Now, I want to point out that by using the “F” word, I’m not saying that you – as a parent deep in debt – are a failure. Yet talking to your kids might raise some concerns that you have about how they might perceive you – and the choices you have made. And that’s the tough road I’m going to talk about today. (more…)