BANKRUPTCY TABLE OF CONTENT
Non-judicial collection methods:2
State Collection Remedies:2
Fraudulent Conveyances:3
Bankruptcy Court:5
Ethical Issues:5
Valuation:6
General Eligibility:6
Commencement:6
Dismissal:7
Automatic Stay:9
Estate:11
Exemption:12
Redemption:15
Reaffirmation:15
Avoidance: Trustee Powers. 16
Other Trustee Powers:22
1. Estate property: §363. 22
2. Executory Contracts: §365. 23
Claims Against the Estate:25
Discharge:28
Consumer Bankruptcy:31
Chapter 7: Liquidation. 31
Chapter 13:32
Chapter 11: Reorganization. 35
Conversion:41
Comparative Charts:41
Non-judicial collection methods:
1. Policy: (Why non-judicial collection methods)
a. Less fees
b. Litigation is risk
c. Slow process
d. (All of these methods stop one bankruptcy proceedings commence.)
2. Credit reporting:
a. Attempts to level the playing field between debtors and creditors
b. Creditors have long exercised this leverage individually with their debtors by refusing any further extensions of credit until past bills are paid; leverage is stronger if there is no one else for the debtor to turn to.
c. Credit reporting is an inexpensive, fairly accurate method of tracking and reporting debtors’ payment behavior.
i. Credit reporting is run by privately owned reporting companies.
ii. Creditors use this data to rate the debtors with a kind so shorthand to indicate which debtors are most creditworthy (FICO score)
iii. Permissible and impermissible debt collection activities
iv. The most frequent source of dispute between agencies and the debtors is the accuracy of the credit information supplied.
d. Fair Credit Reporting Act:
i. Themes:
1. Giving the debtor aces sot the credit report information and
2. Prescribing procedures to ensure the accuracy of the information in the file
ii. Procedure in Case of Disputed Accuracy
iii. Civil Liability for Willful Noncompliance
iv. Civil Liability for negligent Noncompliance
v. Administrative Enforcement
3. Limitations:
a. Usury Laws:
i. (def.) if a creditor charged more than a predetermined rate of interest, the loan would be deemed usurious and the interest and under some statues the principal would be deemed uncollectible; governments way of regulating the heart of the debtor creditor relationship and maintaining control over ancillary issues such as service fees and penalty charges. (left mainly to state governments)
ii. Marquette v. First Omaha
b. Federal Statutory Controls on Non-judicial Collection:
i. Fair Debt Collection Practices Act:
1. (def.) major effort to acknowledge difficulties with debt collection and to fashion a federal remedy directed specifically toward debt collection abuses
2. Short title
3. Congressional findings
4. Definitions
5. Acquisition of location information
6. Communication in connection with debt collection
7. Harassment or abuse
8. False or misleading representations
9. Unfair practices
ii. Application:
1. To lawyers who regularly en
pre-file notice for a security agreement.)
Fraudulent Conveyances:
Uniform Fraudulent Transfer Act: (unsecured creditor)
Section 4: Transfers Fraudulent as to Present and Future Creditors
i. Fraudulent transfer if:
1. Actual intent to defraud plus factors: (not exhaustive)
a. Transfer to insider*
b. Debtor retained property
c. Transfer was concealed/secreted*
d. Transferor was sued or threatened to be sued
e. Transfer was of substantially all debtors assets
f. Debtor absconded
g. Debtor removed or concealed assets
h. Reasonable consideration
i. Debtor was insolvent
j. Transfer made shortly before/after debt incurred*
k. Used middle man to transfer to insider
2. Inadequate consideration:
a. Engaged in business transaction and debtors remaining assets were unreasonably small
b. Incurred debt that debtor knew he/she would not be able to pay
Section 5: Transfers Fraudulent as to Present Creditors (constructive fraud)
i. Fraudulent conveyance if:
1. Transferred property for less than its reasonable equivalent value:
a. While transferor was insolvent or
b. Immediately after the transfer, transferor became insolvent
