I have just finished reading Lois Lupica’s paper on her impressive
consumer bankruptcy fee study.
This is a model of what empirical, law-and-society research should be –
it combines data from electronic court records with focus groups and key player
interviews to give a textured understanding of the role lawyer’s fees play in
this particular legal system.
The finding that jumped out for me was a little-discussed
but critical aspect of local bankruptcy culture: not how much, but when the trustee pays Chapter 13
lawyers’ fees (pp. 105-106). I practiced in a district where (before BAPCPA)
the trustee paid out the fees as the first priority claim i.e. ahead of even
secured creditors, but adequate protection payments (current mortgage and auto
loan payments, e.g.) were paid directly to the creditors. There are apparently districts where
every plan must include a $200 monthly payment for the first 15 months to pay
the attorney, others where the pre-confirmation adequate protection payments are diverted to the attorney’s fees and added to the arrears paid over the
remaining plan life (i.e. borrowed from secured creditors), and many other fascinating variations.
Considering
the practical consequences of these disparate rules for attorneys as they decide what cases to take, and
how to structure plan payments, it is easy to see why Chapter choice, and
Chapter 13 success rates, would vary so dramatically from one district to
another. For example, the front-loading of payments for the legal fee, followed by a payment step-down, would seem to increase the risk of plan failure. The sooner the lawyer is paid, the less risk she takes in filing the
case. That could increase access, but could also encourage filing more
risky Chapter 13 plans. If we are concerned about
the high failure rate of Chapter 13s on the one hand, and the high costs and
difficulty of obtaining counsel on the other, we might do well to study these
variations further to see what outcomes they produce for debtors, creditors and
lawyers.
It also struck me that Professor Lupica's extensive data tables with fees actually paid, by chapter, state, district and case outcome, and no-look fees for Chapter 13, can provide important independent variables for other studies modeling bankruptcy outcomes.
Comments
2 responses to “Consumer Bankruptcy Fee Study”
In this jurisdiction (Utah), the priority unsecureds and the secureds who are in the plan will object to fee payments longer than 4-5 months, the trustee will join, and the plan will not be approved. Most secureds are outside the plan to minimize the trustee fee, but any arrearage is inside, so those secureds have a stake. There is no step-down after the fee is paid. As for causes of failure for approved plans, I see essentially two: 1) major new expenses (typically medical and auto), and 2) inability to maintain steady income for the life of the plan (an unavoidable problem in this economy). Neither of these risks can be assessed up front in any meaningful fashion, so they can’t really be used to decide which cases to file and what fee arrangement to make.
the imperialist creditor nations — which placed themselves permanently in charge of the IMF and World Bank when they created them after WWII