Adequate Protection in Chapter 13 Cases under the New Code §1326(a)
by Richard J. Hayden, Spokane, Wash.
Has Learned Hand Finally Come Home?
The new Bankruptcy Code, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA, Title 11 U.S.C.), has made some controversial and sweeping changes in the area of adequate protection in chapter 13 cases. While the case law throughout the circuits recognizes that secured creditors were entitled to some form of adequate protection, it is a fair statement of the law throughout the circuits to say that enforcement was varied. For example, in the Ninth Circuit, the case of In re Andrews, 49 F.3d 1404 (9th Cir. 1995), held that a plan would not be confirmable unless before, and after confirmation, adequate protection could be provided to secured creditors. The Ninth Circuit also held however, in another decision, that adequate protection would be payable only from the point the creditor asked for it, In re Deico Electronics Inc., 139 B.R. 945 (9th Cir. BAP 1992). In a recent thoughtful decision, In re Stembridge, 394 F.3d 383 (5th Cir. 2004), the Fifth Circuit reiterated the rights of a personal property creditor to adequate protection from petition filing.
We Are a Debt Relief Agency
by Thomas J. Yerbich, Anchorage, Alaska
One provision added by BAPCPA 2005 that will impact all attorneys who represent consumer debtors is that concerning Debt Relief Agencies (“DRA”). All attorneys who represent consumer debtors are, by definition, Debt Relief Agencies: any person who provides any bankruptcy assistance to any assisted person in return for the payment of money or other valuable consideration [§101(12A)]. An assisted person is any person whose debts are primarily consumer debts and the value of whose nonexempt property is less than $150,000 [§101(3)]. Bankruptcy assistance includes:
- goods or services provided to an assisted person, the purpose of which is to provide:
- information
- advice
- counsel
- document preparation or
- filing;
- attendance at a creditors’ meeting
- appearing in a case or proceeding on behalf—or providing legal representation—of another in a case or proceeding under title 11 [§101(4A)].
Sections 526–528 contain numerous provisions governing a DRA.
Agenda for the 2005 Winter Leadership Conference
The Consumer Bankruptcy and Ethics Committees will present a joint program, “My Practice Will Go On… or Will It?—Ethical and Other Challenges for Consumer Bankruptcy Case Practice Under the BAPCPA of 2005” at the 2005 Winter Leadership Conference in Indian Wells, Calif., on Friday, Dec. 2, at 3:45 p.m. This timely program will address the various ethical issues that arise in consumer bankruptcy cases and the new challenges posed by the 2005 amendments to the Bankruptcy Code. The panel, which will include debtor and creditor counsel as well as a representative of the Office of the United States Trustee, will discuss various present practices of counsel, new approaches to old issues and questions raised by the new consumer provisions. Be prepared to be both challenged and enlightened by this presentation of titanic importance.