April 29, 2017

Consumer Bankruptcy Fee Study

I have just finished reading Lois Lupica’s paper on her impressive
consumer bankruptcy fee study

This is a model of what empirical, law-and-society research should be –
it combines data from electronic court records with focus groups and key player
interviews to give a textured understanding of the role lawyer’s fees play in
this particular legal system. 

The finding that jumped out for me was a little-discussed
but critical aspect of local bankruptcy culture: not how much, but when the trustee pays Chapter 13
lawyers’ fees (pp. 105-106). I practiced in a district where (before BAPCPA)
the trustee paid out the fees as the first priority claim i.e. ahead of even
secured creditors, but adequate protection payments (current mortgage and auto
loan payments, e.g.) were paid directly to the creditors.  There are apparently districts where
every plan must include a $200 monthly payment for the first 15 months to pay
the attorney, others where the pre-confirmation adequate protection payments are diverted to the attorney’s fees and added to the arrears paid over the
remaining plan life (i.e. borrowed from secured creditors), and many other fascinating variations.

Considering
the practical consequences of these disparate rules for attorneys as they decide what cases to take, and
how to structure plan payments, it is easy to see why Chapter choice, and
Chapter 13 success rates, would vary so dramatically from one district to
another.  For example, the front-loading of payments for the legal fee, followed by a payment step-down, would seem to increase the risk of plan failure. The sooner the lawyer is paid, the less risk she takes in filing the
case.  That could increase access, but could also encourage filing more
risky Chapter 13 plans. If we are concerned about
the high failure rate of Chapter 13s on the one hand, and the high costs and
difficulty of obtaining counsel on the other, we might do well to study these
variations further to see what outcomes they produce for debtors, creditors and
lawyers.

It also struck me that Professor Lupica's extensive data tables with fees actually paid, by chapter, state, district and case outcome, and no-look fees for Chapter 13, can provide important independent variables for other studies modeling bankruptcy outcomes.

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