This third post of the BAPCPA Consumer Bankruptcy Outline addresses attempts at uniformity by the bench in rendering decisions on BAPCPA’s confusing laws.  These attempts have been manifested in various forms, including: 

  • En banc review established by rules of the local court;
  • Expedited appeals (reported here) (Virissimo case);
  • Jointly drafted opinions; and
  • Combination of multiple cases under a single caption to address a common issue of law (such as reported here). 

The goal of this outline, which will surely become tiresome for most by the final post with the outline’s 180th subsection, is to contribute to these valiant attempts at uniformity.  When I first learned bankruptcy in the early 1980’s following passage of the Bankruptcy Code of 1978, it was often said that "you can find a bankruptcy opinion to support just about any proposition you need." 

Readers of this outline will see that BAPCPA’s onerous, conflicting, poorly drafted, incomplete, and hanging provisions have — in the short time since the Act’s passage — given rise to a myriad of conflicting opinions that simply cannot be reconciled and as to which the conflicts of bankruptcy’s early days pale in comparison.  At least back then you didn’t have to ignore the statute’s "plain meaning" quite as often.  Still, litigants are likely to find a BAPCPA opinion to support just about any proposition they need.

Hopefully this outline will help those debtors, litigants, judges, and clerks wanting to "see the forest (or wood) for the trees" be better equipped to choose among conflicting options.

Good luck to all!

C.     Attempts at Uniformity

1.           En Banc ReviewSee General Order 2006-03 (Bankr. N.D. Tex.) (Houser, J.):  "The Bankruptcy Judges believe that the bankruptcy bar desires consistency in the resolution of legal issues arising under BAPCPA among the Bankruptcy Judges where possible and appropriate. The Bankruptcy Judges also believe that judicial economy will be served, and the likelihood for uniformity in the resolution of BAPCPA legal issues will be enhanced, by the adoption of procedures for en banc consideration of such legal issues.”

2             Jointly Drafted Opinions.  Judges Schermer and Surratt-States combine to issue a joint opinion on the rights of a secured lender with a lien on a car financed within 910 days of the bankruptcy filing.  In re Fleming, 339 B.R. 716 (Bankr. E.D. Mo. 2006) (Schermer, J. & Surratt-States, J).

[NB:  Links are to Westlaw.  Those who do not have access to Westlaw may contact me directly if they would like to view a particular case, though all federal courts maintain their own websites where judicial opinions may be accessed by the public free of charge (e.g., Bankr. N.D. Ill. – Judge Wedoff opinions).  Because all the outline’s case references identify the deciding judge, you should be able to find the opinions online with minimal effort.]

© Copyright 2006, Steve Jakubowski

All Rights Reserved.