PRIVATE REMEDIES AND ACCESS TO JUSTICE IN A POST-MIDLAND WORLD.(The Fifteenth Annual Emory Bankruptcy Developments Journal Symposium)

In so doing, these cases have primed the bankruptcy system to respond. [...]despite the limited success of FDCPA cases challenging timebarred debt claims, we conclude this wave of litigation likely has improved access to justice in the bankruptcy forum. Evaluating claims for statutes-oflimitation de...

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Bibliographic Details
Published in:Bankruptcy developments journal 2018-03, Vol.34 (2), p.365-385
Main Authors: Bruce, Kara J, Sickler, Alexandra P.E
Format: Article
Language:English
Subjects:
Access to information
Automation
Bankruptcy estates
Bankruptcy laws
Collection (Accounting)
Compliance
Consumers
Costs
Debt
Enforcement
Fair Debt Collection Practices Act 1977-US
Funding
Laws, regulations and rules
Limitation of actions
Litigation
Monetary incentives
Mortgage servicing
Personal bankruptcy
Remedies
Remedies (Law)
Stays of execution, proceedings, etc
Trustees
Wall Street Reform & Consumer Protection Act 2010-US
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Summary:In so doing, these cases have primed the bankruptcy system to respond. [...]despite the limited success of FDCPA cases challenging timebarred debt claims, we conclude this wave of litigation likely has improved access to justice in the bankruptcy forum. Evaluating claims for statutes-oflimitation defenses can be particularly challenging because it can require investigation of choice of law, tolling, and revival, information to which the trustee might not have ready access.80 Trustees have sound arguments that other bankruptcy participants, including debtors (and their counsel) and the creditor filing the proof of claim, have superior information to assess a claim's staleness. [...]in light of these challenges, trustees have argued that they (and other creditors) should be able to assume that a creditor seeking an estate distribution is "knowledgeable about statutes of limitation" and has "a good-faith belief that its claim is enforceable. While the case-by-case review and objection can neutralize any stale debt claim filed in any individual case, the massive numbers of claims filed strain the utility of this solution. [...]bankruptcy law and procedural rules that contemplate a case-by-case resolution shelter this practice from a global remedy. [...]the Bankruptcy Rules Advisory Committee's authority to address this problem without complementary Congressional action is constrained by the Rules Enabling Act.111 Our ongoing research examines whether the beleaguered Consumer Financial Protection Bureau (CFPB), or other federal agencies with overlapping jurisdiction, might also play a role in addressing this problem.
ISSN:0890-7862