|Professor Mark S. Scarberry
Resident Scholar Final
The subprime mortgage crisis hit just as I started my service during
the fall of 2007 as the thirteenth Robert M. Zinman Scholar in
Residence. As a result, I spent much of my time keeping track of
proposed legislation in the Congress - both legislation intended to deal
with foreclosures and legislation intended to deal with mortgage
origination practices - and responding to numerous related media
The bills that relate to mortgage origination include H.R. 3913,
which would enact the "Mortgage Reform and Anti-Predatory Lending Act of
2007" ("MRAPLA"). My summary of MRAPLA for the ABI Legislation Committee
Newsletter can be found here.
The foreclosure-related bills would allow modification of home
mortgages in chapter 13 to varying degrees under various circumstances.
that I prepared for the ABI web page comparing the bills received
substantial attention and was reprinted in the Spring 2008 N.Y. Real
Property Law Journal. Near the end of my service as scholar in residence
I had the privilege of testifying on those bills before the Senate
Judiciary Committee (written testimony and hearing webcast available here). My
written responses to follow-up written questions from the Senators
should appear on the committee's web page shortly. All of this led to my
being asked to be a luncheon speaker at the January, 2008 Association of
American Law Schools (AALS) annual meeting (for the Section on Financial
Institutions and Consumer Financial Services). In addition, I will be
presenting a paper on these issues (particularly the proposed home
mortgage strip down in chapter 13) at the AALS Annual Meeting in San
Diego in January, 2009 (at the meeting of the Section on Creditors' and
Debtors' Rights). I am also an organizer for the Pepperdine
Law Review symposium to be held on April 17, 2009 (at the law
school in Malibu) entitled Bringing Down the Curtain on the Current
Mortgage Crisis and Preventing a Return Engagement.
The new ABI
Consumer Webinar series premiered while I was the scholar in
residence. I had the opportunity to write the materials for the first
two webinars and grew to love the 2005 BAPCPA even less than
Much of the rest of my time was spent analyzing the Supreme Court's
decision in Travelers Casualty & Insurance Co. of America v.
Pacific Gas & Electric, 127 S. Ct. 1199 (2007) and writing a
law review article for the ABI Law Review: Interpreting Bankruptcy
Code Sections 502 and 506: Post-Petition Attorneys' Fees in a
Post-Travelers World, 15 ABI L. Rev. 611 (2007) (download
available on SSRN here).
As a result, on Sept. 5, 2008 I will be debating the highly-successful
Supreme Court advocate G. Eric Brunstad (who won the Travelers
case) at the 16th Annual
Southwest Bankruptcy Conference in Las Vegas.
I was also asked to give the luncheon speech at the 16th Annual
Bankruptcy Battleground West in Santa Monica, California, in
February, 2008, shortly after my stint as scholar in residence ended.
The speech, which was graciously received by the ABI members in
attendance, was entitled Statutory Interpretation and the Rule of
I want to thank the ABI and its generous members for giving me the
opportunity to serve as your scholar in residence. It was a great
experience working with Sam Gerdano, Felicia Turner, and the wonderful
staff at ABI. Everyone was gracious. I hesitate to single out any
particular staff member, but the great media interest stirred up by the
subprime crisis meant that I spent a lot of time working with John
Hartgen, ABI's Public Affairs Manager. I want to thank him particularly
for his welcoming attitude, great professionalism, and willingness to
share his insights into how to deal with the media. It was also a treat
to spend a semester in the DC area, with all that it offers. (Family
trips to the caverns in the Shenandoah Valley, to Gettysburg, and to
Amish country were highlights.)
Again, to the ABI and its generous members, to Sam, to Felicia, and
to the ABI staff, thank you!