Author: Melissa Jacoby

  • Bonfire at the Repo Lot

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    Melissa Jacoby

     

    You hear a bump in the night. Is it Edgar Allan Poe’s Telltale Heart? Or someone hauling away your car? If you have missed some car payments, it probably is the latter. And while most of your creditors aren’t allowed to lurk in the dark to snatch your car, your car lender can.

    Recorded with steaks sizzling on a fire pit at a car repossession lot, a recent podcast from the Wall Street Journal discusses the physical risks and tight margins associated with the repo industry. Without mentioning the law that shapes this industry, the podcast shows how Article 9 of the Uniform Commercial Code, a law passed by all state legislatures and yet virtually unknown, is far from a niche subject. That’s also an implication, to say the least, from the downfall of FirstBrands, now in bankruptcy.

    Now is a good time for lawyers to ask their law schools if they regularly offer courses that include a hefty dose of UCC Article 9.

     

  • Hospitals Suing Patients – A New Study

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    Melissa Jacoby

    screen shot of SSRN title and author list and beginning of abstract

    My first post on the original Credit Slips was about medical billing and collection; so is this first post on the new Credit Slips. I write to encourage more of you to read Hospitals Suing Patients: The Rise of Stealth Intermediaries, posted this summer on the Social Science Research Network.  This study, by law professor Barak Richman and coauthors at Stanford University’s Clinical Excellence Research Center reports on a hospital’s recent use of collection agencies to sue and enforce judgments (many of which were based on “unsubstantiated and inaccurate billing records”) against patients, and the impact of state law efforts to increase transparency in debt collection. And herein lies the end of my first post on the new Credit Slips, if only to expedite your decision to download this study.

  • Virtual Access to Event in Memory of Juliet Moringiello March 20 2025

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    Melissa Jacoby

    FINAL WLC Juliet M. Moringiello MemorialWidener University Commonwealth Law School will hold an event honoring Professor Juliet Moringiello on March 20, 2025 at 1pm ET. Friends and fans of Juliet are welcome and encouraged to join virtually. The Zoom link is embedded in the image accompanying this post as well as accessible here. I will repeat what Widener says in the bottom of the image about Juliet: "Professor Moringiello was a beloved scholar, professor, mentor, author, administrator, colleague, and friend whose impact on our students and institution was profound and will never be forgotten. We gather to celebrate her contributions to the legal field, share memories, and find comfort in one another."

  • Juliet Moringiello – One of the Greats

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    Melissa Jacoby

    Juliet Moringiello was an amazing person. Her alchemy of brain and spirit and energy and heart and common sense made a positive difference for so many people, across disparate places and professions. She could teach you how to navigate a commercial law and to downhill ski.

    Testaments from Widener University Commonwealth Law School and professional organizations illustrate how Juliet served academic and legal communities with distinction. Examples include the Uniform Law Commission (including an instrumental role in the development of the 2022 amendments to the Uniform Commercial Code), American Law Institute projects, and as a scholar-in-residence for the American Bankruptcy Institute. Juliet did these things while also serving in critical leadership roles at Widener and offering engaged and committed classroom teaching, including first-year property law and an array of upper level classes and seminars. 

    Chris Odinet's memorial captures beautifully Juliet's commitment to helping others and building communities. As reflected in the mentoring award she recently received from the Commercial and Consumer Law Section of the Association of American Law Schools, Juliet did so much behind the scenes to lift up others and to help them improve their research and analysis. 

    Juliet was ideally positioned for mentoring because her own scholarship was creative and wide-ranging and yet reflected care and attention to detail. She offered important insights on municipal bankruptcy and related state law procedures. Whereas scholars and jurists long have referred to the "Butner principle" in the abstract, Juliet closely studied the case for which the principle is named, which turned out not to match how it was remembered. She explored poorly drafted statutory language that since 2005 has affected the treatment of car loans in Chapter 13 repayment plans for individuals and proposed an analytical framework accordingly. These are just a few of the examples of her writings in which a reader can find careful and sustained attention to the relationship between state and federal law. 

    With respect to state secured transactions law, Juliet comfortably traversed the border between real property and personal property. The problems dwelling from the tangible-intangible divide of personal property particularly attracted her attention. She explored puzzles that arise, for example, when one tries to apply fundamental concepts such as possession to remotely controlled activities.

    And those projects dovetailed with Juliet's longstanding interest in understanding emerging technologies, and her ability to demystify how foundational commercial law concepts can be squared with innovation – from software licensing agreements and electronic contracting, to cyberspace and domain names and Second Life, to non-fungible tokens. As popular subjects for scholarship, writings on hot tech topics risk ephemerality. Juliet's work is built to last. She made these issues accessible while demonstrating how they could and should be situated in broader legal frameworks.

    Of course, these professional interests were part of a rich multi-faceted life of family and friends, of appreciating the sights and nature in Pennsylvania, in Quebec, and anywhere and everywhere she traveled. When there wasn't enough snow for skiis, you might find her on a hike. Or on a bike. Or a paddleboard. 

    Juliet Moringiello offers inspiration to do impactful work, to help others, and to spend time on the the things you love. Deepest condolences to her family. 

  • Remembering Brady Williamson

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    Melissa Jacoby

    EW on BWBrady Williamson, a remarkable person, has died at the age of 79. Brady's engagement with the field of bankruptcy law is diverse and of long standing, from arguing before the United States Supreme Court to chairing the National Bankruptcy Review Commission, where I first met and worked for him as a staff attorney. More recently, Brady had a range of professional roles in big bankruptcies, such as those involving the Commonwealth of Puerto Rico, Purdue Pharma, and in cases that implicated air and water quality.  

    Brady also had tremendous expertise in foundational constitutional law matters and a commitment to democracy, the rule of law, and fair elections at home and around the world. He recently worked with students on such matters from coast to coast, after teaching with some regularity over the years at the University of Wisconsin-Madison. The challenges and joys of university teaching was a topic of what turned out to be our last telephone conversation.

    Brady's impact during his lifetime was broad and deep; it will be enduring. Deepest condolences to his loved ones.  

     

  • Upcoming Public Events for Unjust Debts

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    Melissa Jacoby

    P&PMore upcoming events open to the public – in person and virtual – for the new book Unjust Debts, including tonight in Washington DC. Join the conversation!

     

  • Unjust Debts on the Road

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    Melissa Jacoby

    Unjust_debts_finalFirst, thanks to Bob Lawless for his post about my new book. It has been great to engage with people about Unjust Debts so far, and especially appreciated the book making a new Financial Times best books list (links to that and other coverage here). Wanted to note a few upcoming book events for Credit Slips readers:

    • June 27 (TONIGHT): Greenlight Bookstore, Brooklyn NY, in conversation with Zephyr Teachout. Information and RSVP here. 
    • July 1 (VIRTUAL): Commonwealth Club World Affairs, in conversation with Senator Elizabeth Warren. Information and registration here. 
    • July 8: Politics & Prose, Washington DC, in conversation with Vicki Shabo. Information here. 

  • The Consumer Debt Default Judgments Act

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    Melissa Jacoby

    MapConsumer debt has been a difficult topic for uniform state law movements, but here's one more attempt recently approved by the Uniform Law Commission and the American Bar Association, and introduced in Colorado last week.  You can access the materials here. Meanwhile, here is ULC's summary:

    Numerous studies report that default judgments are entered in more than half of all debt collection actions. The purpose of this Act is to provide consumer debtors and courts with the information necessary to evaluate debt collection actions. The Act provides consumer debtors with access to information needed to understand claims being asserted against them and identify available defenses; advises consumers of the adverse effects of failing to raise defenses or seek the voluntary settlement of claims; and makes consumers aware of assistance that may be available from legal aid organizations. The Act also seeks to provide a uniform framework in which courts can fairly, efficiently, and promptly evaluate the merits of requests for default judgments while balancing the interests of all parties and the courts.

    Would welcome Credit Slips posters and readers chiming in on this act in the comments, especially if you were involved in the drafting process and/or if will be weighing in on this act with their state legislatures.

    And for previous recent coverage of other uniform acts being urged on state legislatures, see here and here.

  • A Uniform Law Project of Note: Special Deposits Act

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    Melissa Jacoby

    Last week, bolstered by a continuing legal education program offered by the American Law Institute, I started studying a new uniform law that will be recommended to your state legislature in the coming days and months. It is called the Special Deposits Act. As of today it has not yet been enacted by a state legislature. But trust me when I predict that you want to study it too – especially because the choice of law rules will work differently for this uniform law than for, say, the digital assets amendments to the Uniform Commercial Code. In other words, if one of the green states in the map below adopts the law, parties can contract for that state to govern the special deposit as well as to be the forum for disputes, even if there's no other relationship with that state.

     

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    A special deposit is payable on the occurrence of a contingency and the identity of the party entitled to the funds is uncertain until the contingency happens. Right now, the law governing special deposits is nonuniform and the details can be uncertain, including the rights of creditors against those funds. One big impact of this uniform Special Deposits Act is this: in broadest terms, if a bank and depositor agree that a deposit account is a special deposit, and it meets the requirements for permissible purpose under the law, this law says that the funds in that account are not property of the depositor, including if the depositor files for bankruptcy, and cannot be reached by the depositors' creditors. (Fraudulent transfer law still applies and the drafters say there are other anti-fraud measures in place). The bankruptcy world may be interested in this law for an additional reason: possible use of special deposits in a bankruptcy case to pay professionals, or for large numbers of claimants, etc.

    I also find this law interesting because of its implications for loans secured by deposit accounts under Article 9 of the Uniform Commercial Code. Even if a bank has a security interest in all deposit accounts of a debtor held by a bank, and is automatically perfected by control, the bank's enforcement rights are far more limited against the special deposit than against a typical bank account. In general, the bank cannot exercise rights of setoff or recoupment against a special deposit.

    Again, as of today no state has enacted the Special Deposits Act. But given how the law is drafted, it will take just one state to adopt it, and for lawyers to encourage banks and depositors to opt in to that state's law, to have a much broader effect. Check out the materials here.

  • Catching Up on the Digital Asset Amendments to the Uniform Commercial Code

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    Melissa Jacoby

    It has been a while since I last posted resources on amendments to the Uniform Commercial Code that would govern transactions in digital assets, including security interests. The take-up of these amendments, including a new Article 12, has not been as swift and sweeping as some might have hoped. To put it mildly, some in the cryptocurrency world have lobbied hard against enactment based on what seems to be a misinterpretation (to help set things straight, I recommend reading and listening to professors Juliet Moringiello and Carla Reyes). Currently, 11 states have enacted the amendments. Article 12

     

     

     

     

     

     

     

     

     

    Thorny choice of law issues flowing from non-uniform enactment inevitably will land in bankruptcy courthouses, as so many legal quandaries do. For example, choice of law will affect whether or not a lender has a perfected security interest in the debtor's interest in cryptocurrency, an issue that can arise in a wide variety of bankruptcies. Here is a collection of Uniform Law Commission resources in case you need them.