by George L. Clauer III, Skinner & Associates Law Firm LLC, Greenville, S.C.
When an irate creditor comes to bankruptcy court in a chapter 7, 12 or 11 case in which an individual debtor is holding a check issued by the debtor that was dishonored by the debtor’s bank, she often expects a quick and easy finding that the debt is not dischargeable. Unfortunately, the debt based on a bad check is not automatically and not even usually held to be non-dischargeable. To succeed, the creditor usually bears a heavy burden of proof of fraud.
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
On March 16, the House Judiciary Committee approved without amendment the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAP/CPA 2005, S. 256) as passed by the Senate and sent it to the House floor. The house is currently in recess and will return on April 4. The bill is expected to come to a vote on the House floor shortly after the House reconvenes, where it is expected to be passed by a wide margin and sent to the President. The President has already signified that he would sign the bill. Consequently, it can be expected that BAP/CPA 2005 will become law around May 1, effective 180 days later.
The bill, as passed by the Senate and introduced in the House, and other information concerning the status of the bill can be accessed through the ABI bankruptcy bill news page. A redlined version of the Code incorporating the amendments made by BAP/CPA 2005 prepared by Davis Polk Wardwell may be downloaded from their web site. (This is a fairly large file; a 1.6 MB PDF.)
At the 2005 Annual Spring Meeting we will provide further updates on the bill and alert you to those provisions that may affect consumer debtors that are scheduled to go into effect immediately. We also expect to provide you with additional sources of information on the effects and operation of BAP/CPA 2005 as is available at that time. We will further attempt to keep you abreast of developments as they occur, particularly the availability of educational materials and seminars, through the listserve as well as future newsletters.
Committee Agenda for Annual Spring Meeting
The Consumer Committee has scheduled a panel at the 2005 Annual Spring Meeting to review the conflicting decisions that continue to emerge in connection with Bankruptcy Rule 3001 and Official Form 10 in relation to unsecured proofs of claim, particularly those filed on behalf of credit card issuers and debt purchasers. This issue has been the subject of several previous articles in the ABI Journal and continues to present concern and confusion in the overwhelming number of bankruptcy courts that have no published decisions determining these issues. The panel will also discuss the recently promulgated Director’s Procedural Form 210, Notice of Transfer of Claim Other Than for Security. (Form B210 and related instructions are available online.)
The panel will be moderated by Burton Craige Professor of Law, Elizabeth Gibson, University of North Carolina School of Law, and includes creditors’ counsel; Alane A. Becket, Becket and Lee, who has extensive national experience and has previously written on these issues (ABI Journal, December/January 2005), and debtors’ counsel, David Lin, who has been successfully involved in these issues at both the trial and appellate levels. The panel presentation will contemplate a comprehensive and valuable presentation of these continually encountered issues. Register by April 1, 2005, to avoid late fees.