ROOKER FELDMAN'S BANKRUPTCY BLOG

Saturday, January 27, 2007

INCREASE SEEN IN FAMILY INTERVENTIONS FOR BANKRUPTCY LAWYERS STRUNG-OUT ON BANKRUPTCY REFORM

Rooker Feldman, Director of the famed Feldman Asylum For The Insolvent, reported today a marked increase in the number of freaked-out lawyers whose families are kidnapping them and forcing them into rehab to get the Bankruptcy Code out of their system.

"They're the lucky ones," said Feldman at a press conference. "Many keep reading the Bankruptcy Code until it's too late. The reform prions (a recent discovery by the Feldman Foundation, reform prions cause holes to develop in one's cerebral cortex) eventually find their way from the pages of the Code into the lawyers' brains. The early symptoms are the occasional holes in their interpretation of legislative intent (based on the false premise that the legislature was conscious at the time it enacted the Reform Act). This progresses to the point where every question put to them by their clients elicits the exact same peevish response: "How the hell do I know?" followed by the lawyers' eyeballs drifting up and to the left, and twitching for several seconds, which creeps out many clients.

The brain becomes starved for oxygen and logic, which in many cases drives the lawyers to inject steroids directly into their cerebral cortexia. This helps the brain muscle up, which in turn increases the pressure on the eyes, which explains why many debtors' attorneys show up at the meetings of creditors with their eyes bulging and seemingly in a trance, looking like deer caught in the headlights.

Some of them, according to Feldman, "get off" on the Code by having an associate strangle them while they're reading section 362. By cutting off the air temporarily, it intensifies the experience enormously. But, unfortunately, sometimes the associate waits too long before releasing his or her grip on the lawyer's throat, resulting in minor brain damage. At that point, there's little they can do to make a living, except become president of the U.S., or a talking-head for Fox News.

"We are determined," concluded Feldman, "to find a cure. Fortunately, at this point it does not appear to be sexually transmitted, athough that is moot, since debtors' attorneys have no known sex-life. But the prion is a tough beast. It'll take years."
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Sunday, December 10, 2006

As we approach a season deemed a Holy time by many, I want to share some thoughts.

I think back over a legal career of 35 years, and then a lifetime that is now in its 62nd year, and ask, what have I learned? What have I observed? Is it even possible to sum anything up?

Yes, I think to some extent, at least. What, after all, is to be said about all the defeats, the unfairness, the undignified, the silly, the humiliating, the cruel? And what is to be said about the unexpected disappointments of success itself?

I have observed some things that transcend the disappointments.

At the beginning of my career I saw only clients, and friends, and civic opinion leaders, and colleagues . . . But not much more.

NOW I OBSERVE PEOPLE differently, not as faces and voices. Underneath the skin I see The Walking Wounded. The people we deal with every day, who seem functional, normal, conversational, on the inside are, in so many cases, coping with disappointment, deep sadness, great fear and insecurity, yes, the scars and open wounds of terrible things.

Even for those for whom no great tragedy or defeat has happened, there are the thousand little humiliations and defeats of each day. And the worst of it is that so much of it is ambiguous. They all deal with what I supposed may be called The Fog of Living. Sometimes the Fog seems very thick and difficult to get through . . . the loneliness of the Fog. "But they kept making the fog thicker and thicker ..."*

And yet they carry on in the ordinariness of life, each day doing their best to live according to what, consciously or not, they think it means to be a Human Being. I see nobility there.

To each of you I have met, I acknowledge your greatness, or at the very least, your aspiring to Something Better in Yourselves. I know that if I were to carry your cross, I might find it heavy, indeed, and my spirit be bent under its weight. And yet I see how straight you walk, so I try to walk a little straighter.

"However small we were," wrote Carl Sagan, "something in us was large."

"There is in everyone," wrote David O. McKay**, "a something good looking for a something better."

IN THIS COUNTRY the season is an essentially Christian one, due to the accidents of history and culture. I do not mean to omit the wonderful metaphors and songs and values of other religious traditions. So, please forgive me if I allude only to the Christian one for a moment.

Ralph Waldo Emerson, in his address to the graduating class of Harvard University on July 15, 1838, said this of Jesus Christ:

"Alone in all history, he estimated the greatness of man."

We may debate whether he was "alone in all history" in this estimation, but that would be missing the point. It is not who estimated it, but that it was observed. The "Greatness of man."

"... henceforth nothing they have a mind to do will be beyond their reach." - Genesis, 11:6

AND ONE THING I have come to believe is that the true measure of life is how closely it achieves its potential.

Yes, I reject the concept of entropy, that the universe is winding down. I believe that in quiet, unseen ways (yes, here I invoke Quantum Physics) the important things in the universe struggle to become something more, to achieve a potential, and that this Law governs you and me, as well.

"All things," wrote Peter Beagle***, "are crouched in eagerness to become something else."

I HAVE MENTIONED in previous messages that I have a poster on my wall, that has a picture of a book, and a rose petal on the book, and the words, "The Triumph of Love Over Rage." And I think the need for love to transcend rage is the key to another fundamental truth that guides my life, and I think yours, as well.

BECAUSE I BELIEVE, after a lifetime of observing clients, and friends, and civic opinion leaders, and colleagues, that the principal mission of a life is the Search For Something to Love. This Something may be an idea, a quest, a person, a thing, a country, a craft, a God. I believe it is what the Three Wise men (yes, metaphorically speaking) set out to find on their camels. And I believe that you and I are those wise men.

Wrote the great legal philosopher Karl Llewellyn****, "So, too, and so only, if you are one of those queer souls who dream dreams of something, somehow, sometime better, can you be proof against disgust."

Yes, I know there is the daily reality of grubbing for fees to pay the rent, of reaching for the bottle of anti-depressants, of scrambling to keep on top of the rules of law that govern our craft.

NEVERTHELESS, YOU AND I, this season let us mount our metaphorical camels, tuck our metaphorical myrrh under our arms, and set out toward that noble thing we love ... or renew the quest to find it.

And in our travels toward whatever star we follow, let us make our statement, however halting and vague, about what we believe it means to be a Human Being.

And, oh, yes, along the way, encourage someone we love to do the same.

World without end.

Amen.
_____________________

* The indian chief, Ken Kesey's One Flew Over The Cuckoo's Nest.
** A Christian philosopher
*** Author of The Last Unicorn.
**** Karl N. Llewellyn, The Bramble Bush, Oceana Publications, 1960.
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Saturday, November 11, 2006

PRESIDENT ADMITS HIS MISTAKE IN SIGNING REFORM ACT - THOUGHT HE WAS AUTHORIZING THE INVASION OF NICARAGUA

Blaming a simple clerical mishap, President Bush admitted he signed the wrong bill into law. It turns out, while looking for weapons of mass destruction on his oval office desk he accidentally mixed up some papers ready for his signature. In fact he signed a bunch of things that day but can't remember what they were. He admits he was warned by his former Secretay of State that if he messed with the Bankruptcy Code, he would own it. The President replied, "Consumers will welcome us as liberators."

He apologized to the whole country with, "Oops! My bad!"

IN OTHER NEWS

DEBTORS ADMIT THEY WERE FINANCIALLY IRRESPONSIBLE - APOLOGIZE TO CREDITORS

CREDITORS CRY "WE DIDN'T MEAN IT!"

In a touching moment of national reconciliation yesterday thousands of debtors and hundreds of CEOs of credit card finance companies met to hug and forgive.

With tears running down their cheeks debtors promised to never be late again on their credit card payments.

Upon hearing this inspiring message of redemption among the consumer class, the credit card company CEOs assured them there was no need to be so anal-retentive, and that they didn't really mean to punish consumers for late payments, pointing out that if consumers actually paid on time the finance companies would go bankrupt, since most of their profits come from penalties for late payments.

AND THIS JUST IN -

"A REALLY, REALLY ANNOYING TRUTH" RELEASED TO THEATERS NEAR YOU

More frightening than Ann Coulter under your bed, this documentary shows hundreds of lawyers brain-dead from attempting to cope with bankruptcy reform, walking aimlessly down the middle of main street in cities across the country, making muffled muttering sounds that some think may be a new language - "Means test, queen's chest, debtors in your stew. Median, comedian, Whatever can we do?." If anthropologists can decipher this gibberish it could change how we view our place in the cosmos.

Or not

The narrator explains in simple sentences and well-concealed alarm that it is a problem the nation can't ignore. This sudden new phenomenon, says the narrator, is like pulling on the thread of a sweater - if consumer bankruptcy lawyers come unravelled, it could undo an entire ecosystem on which we all rely.

The biggest fish eat the medium size fish. The medium size fish eat the little fish. And the little fish eat the tiny little specs of things that float around. Our entire economy depends on it.

World without end.

Amen

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Wednesday, November 01, 2006

THE ORIGIN OF THE "ZOMBIE RULE" IN BANKRUPTCY

As we all know by now, the Bankruptcy Reform Act of 2005 added section 563 to the Bankruptcy Code. This section provides that the debtor's attorney must file a certification certifying that his client is alive, rather than dead. This is a statutory enactment of the rule in In re Zombie Jamboree, a controversial ruling by Hon. Oxley ("Loose Cannon") Sarbannes, presiding judge of the 16th Circuit.

In addition to adding the requirement to verify a living, breathing client, the new statute prescribes that the debtor's attorney must take a blood sample from the client to match against a national database of DNA, unless the debtor is determined to have already been bled dry by the chapter 7 trustee. The problem is that the debtor could not be bled dry by the trustee unless he was already a debtor, and he couldn't be a debtor if he was dead (hence the well-known phrase "Deador in bankruptcy").

The Zombie Jamboree case held that in the event the debtor was either dead or subsequently bled dry, the court could excuse the debtor's corpse from the meeting of creditors, thus avoiding the problem of a trustee trying to bleed dry an already bled dead debtor.

In a subsequent, similar case, Judge Sarbannes was again confronted with what what by then was known as the "Zombie conundrum." Luckily, he found a case providing precedent which guided him in ruling on the new case . . . his published opinion in his first case, In re Zombie Jamboree.

Sometime after that, judge Sarbannes was, amazingly, again confronted with a Zombie case. He dispatched this case even faster, citing two previous cases as precedent.

By the time judge Sarbannes saw his 4th case involving the same issue, he noticed an emerging trend in case law. "Every case that has ruled on this issue," he announced, "has held that the debtor, if dead or bled dry prepetition, may be excused from the meeting of creditors." Whereupon he cited his 3 previous rulings on the topic.

Finally, another judge in the country had a case involving the Zombie issue. After delving deeply into legislative intent ("What in the hell were they smoking?") and doing a careful analysis of the statute (a one-paragraph memo from the law clerk), the judge resolved the question by citing "the weight of authority" which excused the debtor under the described circumstances. The weight of authority consisted of Judge Sarbannes four previous opinions.

Today, courts everywhere are satisfied that it is a "well settled rule," and all similar cases are quickly dispatched as they came up.

Which is why, today, dead or bled debtors everywhere breath easier knowing they will not have to drag their rotting stinking carcasses to a meeting of creditors.

World without end.

Amen.

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Monday, September 18, 2006

When I was in law school we took a course called, simply, "Jurisprudence." At the beginning of the course the professor posed this question: "What is law?"

At the end of the course, after exploring things like Constitutional law, concepts of due process, Natural Law, equity, and etc. we arrived at the following conclusion: "Law is What the Judges Say It Is."

In monitoring the reported cases in connections with BAPCPA issues, at first a trickle and now becoming a flood, it is obvious much of how BAPCPA is interpreted depends on "local practice," or in other words what individul judges are ruling on the issues.

Cases are flopping all over the place on questions like: is the calculation of disposable income for a chapter 13 case based solely on the 707(b)(2) and 1325(a) calculations, or are the actual income and expenses shown on the schedules also considered? What situations constitute "exigent circumstances" justifying debtor's failure to do credit counseling prior to filing the petition? Is a PMSI debt falling within the anti-cramdown provisions of the Code a secured debt under 506? Should a case in which the debtor was never a "debtor" due to failure to satisfy the pre-petition credit counseling "dismissed" or "stricken"? Which individuals can be counted as part of the debtors' family or household for purposes of the median income test?

The fundamental thread that seems to run through the published opinions is the larger question, when do you go strictly by the plain language of the statute, and when do you look at what Congress must have intended?

Because individual judges are issuing opinions all over the playground on this question, it occurs to us that a web page reporting individual judges' names and how they are interpreting these and other BAPCPA issues might be helpful to practicing attorneys.

Before we undertake this task, we'd like to know if you, a consumer bankruptcy attorney, would find this useful?
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Monday, September 04, 2006

ROOKER FELDMAN'S BLOG

FELDMAN DISCOVERS LAWS OF PHYSICS THAT EXPLAIN EXPANDING UNIVERSE

The debate over why the universe continues to expand despite the pull of gravity of all known matter has raged ever since Einstein photographed Marylin Monroe's legs as she stood over the sidewalk vent, thus demonstrating how invisible matter can cause a short skirt to defy gravity.

Today Professor Rooker Feldman of the Association of Bankrupt Astrophysicists announced that he has proven that the dark matter forcing the universe to expand is directly related to the expanding rate of credit card debt in the known universe. "It is urgent," states Feldman, "that we find a way to reverse this trend. Otherwise, the universe will continue to exand, which will make the air even thinner, and eventually we will not be able to repeat the Marylin Monroe skirt lifting effect!"

In response, Professor Oxley Sarbannes of Stupid Consumer University, issued a rebuttal. "Nonsense," he said. "I'm certain that future work in the field will demonstrate that the expansion of the universe is ultimately in direct proportion to the expanding bonuses being given to CEOs of the finance companies. This form of matter, in actuality a hot gas that is causing global warming, will eventually consume all visible matter, in which case this whole debate won't matter, thus canceling out the effect."

World without end.

Amen.
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Saturday, September 02, 2006

TOPIC: INTERPRETING BAPCPA

For questions, comments, information and news about the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005
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Friday, September 01, 2006

TOPIC: LET'S HAVE A METAPHOR CONTEST

In a recent decision touching on a BAPCPA issue, the Hon. A. Jay Cristol, bankruptcy judge for the S. District of Florida, wrote:

"Unfortunately, the requirement for creditor counseling immediately prior to and as a prerequisite to filing bankruptcy is similar to locking the barn after the horse is gone. The present statutory requirement is the equivalent of requiring a person who has suffered a heart attack to listen to a lecture on exercise, diet and the evils of cholesterol before allowing such person to undergo open heart surgery." In re Petit-Louis, 344 B.R. 696.

I say, the credit counseling requirement is like making passengers listen to a lecture on how to use the non-existent life-boats as the Titanic is going down.
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Thursday, August 31, 2006

TOPIC: CONSUMER BANKRUPTCY LAW - EVENTS - ISSUES - PERSONALITIES

This is an interactive blog intended for the use of consumer bankruptcy professionals to share views, ask questions, and vent as the situation may invite it.

Readers can add their comments by clicking on the "comments" link. Readers can also see comments made by others by clicking on the same "comments" button.

Please give it a try.

- Morgan King, editor, King Bankruptcy Media
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