Rehabilitation or Liquidation: Consumers' Choices in Bankruptcy

The purpose of this analysis is to identify the legal, environmental, and economic characteristics of debtors that are predictive of their Bankruptcy Code choices. The probability that debtors file under the rehabilitation procedure provided by the Bankruptcy Code (Chapter 13) is influenced by the availability of credit counseling as an alternative to bankruptcy and by the adverse effects of a liquidation bankruptcy (Chapter 7) on future ability to qualify for consumer and mortgage credit. More generous state laws protecting debtors' assets from liquidation in Chapter 7 have a negative effect on the probability that a debtor will contract to repay some debts out of future income in Chapter 13. The results also suggest that the enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984, which restricted Chapter 13 plans providing zero repayment of unsecured debts, precipitated a decline in the probability that nonbusiness debtors would choose the rehabilitation alternative.     

Consumer Bankruptcy Stigma: Understanding Relationships with Familiarity and Perceived Control

Bankruptcy stigma is commonly thought to influence debtors' bankruptcy filing decisions. Despite its importance, researchers have not collected direct quantitative measures of bankruptcy stigma, either in terms of attitudes toward bankruptcy or evaluations of filers. Across two empirical studies, we find that (1) attitudes toward bankruptcy and bankruptcy filers are less negative among those with firsthand bankruptcy experience; (2) bankruptcy stigma is a multidimensional construct that includes morality‐, warmth‐, and competence‐related elements; and (3) consistent with psychological models of blame, filers who are perceived to have more control over the circumstances leading to their bankruptcy are more highly stigmatized. By directly investigating bankruptcy stigma, this research can be used to inform models of consumer decisions about bankruptcy filings and bankruptcy policy.     

Canadian Perspectives on the Challenges of Consumer Bankruptcies

Consumer bankruptcies in Canada have become a major legal, economic and social phenomenon. The number of consumer bankruptcies almost tripled between 1985 and 1995 and exceeded 75,000 in 1996. The author examines the causes of the rapidly escalating number of bankruptcies and shows that there is a strong correlation between the number of consumer bankruptcies and the equally rapid growth in the volume of consumer credit. The paper rejects the argument of credit grantors and federal bankruptcy officials that going bankrupt and obtaining a discharge from one's debts has become too easy and that a high percentage of consumer bankrupts could have made a consumer proposal involving a substantial repayment of their debts.The paper also joins issue with the provisions in Bill C-5, a bill amending the federal Bankruptcy and Insolvency Act currently before the Canadian Parliament, and criticizes the proposed amendments involving consumer bankruptcies on the ground that they ignore or misinterpret the available data, much of them generated by the Canadian Government itself.     

Social Efficiency of the Bankruptcy Reform Act of 1978 With Regard to Personal Bankruptcy

A socially efficient bankruptcy law is one that would have the effect of minimizing the present value of social costs stemming from bankruptcy while permitting debtors to make a “fresh start.” Analysis of a sample of petitions for personal nonbusiness bankruptcy filed under the Bankruptcy Reform Act of 1978 shows that about 30 percent of petitions for Chapter 7 and about 25 percent of petitions for Chapter 13 were cases where social costs were not minimized as would be required under socially efficient bankruptcy legislation. The social costs of Chapter 7 may be reduced under proposed reform [S. 445 and H. R. 1800] as the judge would be provided with information concerning estimates of debts repayable under both chapters and would disallow those Chapter 7 cases which represented a substantial abuse of bankruptcy law. The study data suggest that guidelines for acceptance of Chapter 13 cases should also be scrutinized. In particular, petitioners should be discouraged from providing “token” debt repayment plans while maintaining ownership of large accumulations of assets.     

The Way into Bankruptcy: Market Anomie and Sacrifice Among Portuguese Consumers

Portugal ranks among the EU27 countries with higher levels of consumer indebtedness. Contrary to the trend observed in countries with similar indebtedness rates, Portugal has one of the lowest rates of consumer default. Previous studies (e.g., Frade et al. 2006) have identified three strategies that have contributed to keep levels of credit default low: reliance on savings, financial support from relatives and friends, and cuts in household expenses. These strategies have been widely used for the last decade and have been strained since the very beginning of the global financial crisis in 2007. We argue that these three strategies are near to collapse and consequently the levels of consumer default will rise steeply in the next years. The savings rate in Portugal has been declining over time, and the social networks are limited in their action due to the current crisis that affects everyone. In this article, we advance the hypothesis that sacrificing living standards is rooted on collective beliefs about the current economic crisis in Portugal and trust in political and market agents in line with the Theory of Market Anomie (Karstedt and Farrall 2006). The conclusions are based on macroeconomic statistics and on the results of a Web survey of 1244 Portuguese households, which focuses on attitudes towards the financial crisis, trust in political and economic institutions, and strategies to cope with the crisis. The results show that trust in financial companies (banks and insurance companies) and in the European Parliament promotes a sense of empowerment to contribute to the country economic restoration. This attitude induces citizens to avoid default by sacrificing living standards. But in the current austerity context, with low levels of trust in political institutions and detachment of the economy, consumers will be less prone to sacrifice. In this scenario, credit default and insolvency is expected to rise especially in those households most exposed to unemployment and to cuts in social benefits. This reality puts a huge and growing pressure on bankruptcy procedure, civil courts, and economic and social policies. Some adjustments should be made to the Portuguese Bankruptcy Code by facilitating and simplifying the bankruptcy regime in order to accommodate the increase in insolvency cases. But the improvement of the insolvency procedure will not resolve the situation of financial distress if the structural causes persist, such as unemployment and deterioration of salaries, and cuts in social benefits. A reform of the Bankruptcy Code facilitating and simplifying the bankruptcy regime should be coupled with measures that boost the economy and stimulate the labour market. Otherwise, Portuguese households will not have the resources necessary to benefit from the bankruptcy process and regain the control over their financial lives.     

Accounting for the Rise in Consumer Bankruptcy Rates in the United States: A Preliminary Analysis of Aggregate Data (1945–1981)

While previous surveys of bankrupts and cross-sectional analyses of state data have provided a profile of “typical” bankrupts and the various constraints under which they operate, little in the economic and legal literature on personal financial failure explains the postwar growth in consumer bankruptcies in the United States. This paper constitutes a first attempt to model the theoretically appropriate determinants of aggregate failure rates and to test them empirically for the period 1945 to 1981. The data indicate that the incidence of financial failure has been exacerbated by rising divorce rates, unemployment and credit use, which increased through the mid-1970's. These trends were largely mitigated by increasing consumer wealth held in the form of real estate. However, there is tentative evidence that during its first two years, the Bankruptcy Reform Act of 1978 may have encouraged consumers to petition for bankruptcy.     

The geographic determinants of bankruptcy: evidence from Switzerland

This paper examines the geographic determinants of firm bankruptcy. We employ hazard rate models to study the bankruptcy risk of a firm, allowing for time-varying covariates. Based on a large sample from all geographic areas and the major sectors of the Swiss economy, we find the following main results: (1) Bankruptcy rates tend to be lower in the central municipalities of agglomerations; (2) bankruptcy rates are lower in regions with favorable business conditions (where corporate taxes and unemployment are low and public investment is high); (3) private taxes and public spending at the local level have little impact on bankruptcy rates.     

Comparative analysis of Canadian,American and Swedish bankruptcy policy: why do governments legislate consumer debt?

Comparative research in consumer bankruptcy law is scarce. After profiling bankruptcy statistics in each country, the paper compares bankruptcy laws in Canada, United States and Sweden across 20 criteria and then analyses the predominate ideology underlying each law: deviant behaviour modification, consumer protection or social safety net. There is obvious tension between ideologies in each country with the punitive, deviant behaviour modification paradigm the most pervasive across all three countries. There is much we can learn from a comparative policy analysis approach, leading to the conscious development of bankruptcy policy from discernible, declared ideologies. Seven areas for future research are proposed.     

Dirt of whitewashing: re-conceptualising debtors’ obligations in Chinese business by transplanting bankruptcy law to early British Hong Kong (1860s–1880s)

This article, drawing on a wide range of archived materials, and using one of the earliest sets of English business law imported to Hong Kong – the Bankruptcy Ordinance of 1864 – as a case study, argues that the transplantation of the English bankruptcy regime into early colonial Hong Kong was contrary to the business interests of both the European and Chinese communities and wrongfully displaced the traditional Chinese business norms and practices that had contributed to the health of the colonial economy prior to the regime's introduction. This article constitutes one of the first empirical studies to place English business law and its widely acknowledged contribution to the economy of early colonial Hong Kong under scrutiny. From the perspective of the relationship between English law and former British colonies’ development of business modernity, the findings presented herein contradict the readily accepted notion that English business law provided a solid legal infrastructure upon which colonial Hong Kong's prosperity and economic growth were built and call for more nuanced studies of the positive role of Chinese legal traditions in Hong Kong's development of business modernity in its early colonial period.     

Changing Directions in Consumer Bankruptcy Law and Practice in Europe and USA

The consumer bankruptcy or, rather, consumer debt adjustment, is a fairly recent phenomenon in continental Europe. In the nineties, a number of European countries introduced judicial institutions in order to alleviate an excessive debt burden carried by consumer debtors. In addition to the court proceedings, the European jurisdictions often provide the debtor with debt counselling services, supervision, and payment requirements. In the United States, on the other hand, discharge of debt has been an established principle of bankruptcy law since the late 19th century, and bankruptcy is frequently used by consumer debtors. However, in the US, as well as in Canada, debtors are increasingly encouraged to opt for a payment plan. There seems to be a certain convergent trend between the two different legal cultures. Paradoxically, at the same time scholars have pointed out that the variance in local cultures seems to be a main factor in explanations of how debtors choose either a direct discharge or a payment plan. This finding gives us reason to consider the interplay of counselling and other pre-trial measures and its effect upon the rights and duties of debtors.     

"死去活来"话破产

应当把国有企业规范破产作为现代企业制度的重要内容，法律不能只管企业的生，不管企业的死，而生死都是企业发展不可避免的客观现象。过去对国有企业破产关注不够、研究不多，社会主义市场经济需要企业家来正确面对：既要认真落实《公司法》，又要认真落实《破产法》。     

A Next Step in Debt Enforcement: the Merger of Debt Help and Debt Collection

Since the 1990s, each Member State of the European Union designed a policy that infused the liberal American fresh start policy into its own social institutions and legal culture. Especially in countries with a civil law tradition, the legal position of the consumer has improved. The paradigm of lifelong liability of debts has been replaced by a form of limited liability. Discharge of debts has established itself as a firm legal principle in all European jurisdictions. In most European countries, the new approach consists of a combination of legal and extrajudicial instruments. Under the umbrella of the courts, social workers, trustees, and administrators perform a broad range of activities in monitoring and helping debtors. The so-called new-chance approach has dramatically changed the playing field amongst debtors and creditors. The new legal equilibrium worked rather well in most European countries in the 1990s and 2000s. However, the systems are obviously far from perfect as almost all European governments are still fine-tuning their laws. Recently, two innovations have appeared on the European stage: Some Nordic countries have opted for a centralized state-controlled enforcement system, while in the UK, commercial debt management plans were developed, mainly by commercial suppliers. In 2005, the US Bankruptcy Code was changed in favour of the creditors. The 2008 credit crunch and its aftermath present a window of opportunity for the next step in the modernization of debt enforcement policy. I will suggest a merger of the fields of debt relief and debt collection, with a pivotal role for independent trustees.     

Educating and empowering consumers to avoid bankruptcy

The US has the highest consumer bankruptcy rate in the world and Utah is the state with the highest rate. Bankruptcy filings are rising rapidly due to uninsured medical expenses, job loss, family break‐up and rising consumer and mortgage debt burdens. Lending standards are extremely lax among mainstream creditors while predatory and sub‐prime lending are growing. Utah State University Extension is addressing this problem by creating a new Extension educator position to focus on financial education and by training county Extension educators to mount an extensive consumer education campaign. The ‘Take Charge of Your Money’ programme, developed by the Extension specialist, is being taught throughout the state by satellite distance education. Each educator is being trained to use the Power Pay debt reduction software developed by two Utah Extension educators. As part of the emphasis on empowerment, consumers are being taught to make their own decisions on debt load rather than accepting credit because it is available. Heavy dependence of lenders on credit scores mean consumers are taking on debt that they do not have the cash flow to repay. Grant money available from the state was used to provide training for an Extension bankruptcy prevention team and to provide funding for laptop computers for Power Pay so educators can take the programme to the citizens at county fairs and other public events. While it is too soon to measure the results of the programme, Utah State University's Cooperative Extension project is an example of an aggressive response to the highest bankruptcy rate in the nation. The bankruptcy prevention team is an example of the power of the Extension Service to extend the resources of the university to improve the quality of life for the citizens of the state.     

Consumer Bankruptcy: A Right or a Privilege? The Role of the Courts in Establishing Moral Standards of Economic Conduct

The Norwegian Consumer Bankruptcy Act was passed 17 July 1992 to give persons with "serious debt problems (. . .) the possibility to gain control over their economy." The Act contains provisions for negotiations between the debtor and the creditors, for court rulings on repayment plans, and for a discharge of the debts not covered by the plan. The origin of the Act was a social welfare approach to the problem of overindebtedness. However, the Act embodies an inherent contradiction in that it also includes moral elements in order to prevent it from exerting a negative influence on the perceived obligation to pay one's debts. This contradiction has given the courts a wide scope of discretion in the application of the Act. As a result, cases are treated differently in different jurisdictions. Some judges put more emphasis on moral evaluations than others. This situation also gives room for strategic action from creditor groups who typically are repeat players in cases of consumer bankruptcy. In this way the more objective, social welfare approach of the Act is undermined.     

Three perspectives of Chapter 11 bankruptcy: Legal,managerial and moral

With cach successive generation of management, managers have been faced with different goals dictated by that current society's needs and mores. For example, in the early 1900's, industrial growth was essential to society's needs; at the same time, such growth would not be hampered by social costs that were perceived as unimportant. Those social costs viewed as unimportant have not been properly factored into the cost of goods produced. Therefore, the products sold were underpriced, failing to reflect their true social costs. Additionally, this miscalculation or misappropriation of such costs caused a misallocation of resources, such as the manufacturing of asbestos without regard to future health costs. Finally, the payment for the miscalculation of these social costs is due: present day management is now forced to provide a viable solution for payment of debts incurred by previous management. The most notable examples of such misappropriation are provided in the Manville, A. H. Robins and Continental cases. Unfortunately, the choice is often limited to a Chapter 11 bankruptcy.This article views the solution of Chapter 11 bankruptcy from three perspectives: legal, managerial, and moral. The legal review consists of the law and the current jurisprudence. Particularly emphasized are cases dealing with the discharge of executory contracts, tort claims and debts both secured and unsecured. Additionally, an examination of implementing a Chapter 11 bankruptcy plan from the viewpoint of current management is made. Closely associated with both the legal and managerial aspects of this issue is the moral facet of using bankruptcy as a management tool. The broad question is: how prevalent and how reasonable is it for management to declare Chapter 11 bankruptcy to manipulate the corporation's creditors, employees, and stockholders to achieve management's desired end.Professor Hogg currently teaches Managerial Perspectives and Business Law at the A. B. Freeman School of Business, Tulane University. In addition, he is an adjunct faculty member at the Joseph A. Butt, S. J. College of Business Administration, Loyola University, New Orleans, Louisiana, where he teaches courses on Business Ethics and the Legal and Regulatory Environment of Business. Also, he has received several awards for excellence in teaching. His primary research is in the field of Business Ethics.Dinah Payne is licensed to practice law in the state of Louisiana. She has given a number of presentations, including a recent Continuing Legal Education Program on the use of bankruptcy as a management tool. Dr. Payne has also published articles in a number of journals, includingJournal of Business Ethics, Labor Law Journal, Managerial Accounting, andAccounting Today. She has been teaching at UNO since 1988.     

Policy and practice in Germany

Abstract: In Germany, EU directives have been the primary source of consumer protection legislation in banking and financial services, especially legislation on consumer credit and investment services. Otherwise, there is little significant statute law, either at federal or provincial (Länder) level, apart from a recent Consumer Bankruptcy Law. Most consumer problems have to be solved within the framework of the very general Civil Code or the law on unfair contract terms. This means that there is strong emphasis on the role of the courts in interpreting the law in specific cases. In recent years consumer organizations have played an important part in bringing class action cases in the courts – notably on issues concerned with value dating, bank charges and the early termination of mortgage and insurance contracts. There is virtually no tradition of securing consumer protection through codes of conduct. Banking ombudsman schemes have been set up in recent years, but are subject to some criticisms by consumer organizations.     

Consumer Bankruptcy in the United States: A Study of Alleged Abuse and of Local Legal Culture

This paper describes certain central aspects of the operation of the consumer bankruptcy system in the United States. It combines government data with the investigators' empirical data from two large studies done over a decade to explore two types of questions. The first area of investigation relates specifically to bankruptcy policy. The object is to identify the categories of persons principally served by the consumer bankruptcy system and to determine if suggestions of widespread abuse of that system by debtors are well-founded. The paper reports that the system is used primarily by the middle-class. It also reports that there is no evidence of widespread abuse. The second area of investigation is explanation of differences in the operation of the system in different regions of the country, differences that have persisted over twenty years despite major changes in legal rules and economic conditions. The paper argues that these differences are not explicable in terms of formal legal rules or a simple economic model and that a better explanation of the data is that the differences are the product of a "local legal culture" in each region.     

Foods produced using biotechnology: how does the law protect consumers?

This paper addresses the following subjects: biotechnology and consumers, concern about risks, consumer acceptance, labelling of foods produced using biotechnology, the legal approach to consumer protection, and consumer protection policies relating to biotechnology products in the European Union, the United States, Turkey and global institutions such as the Convention for Biological Diversity (CBD) and the World Trade Organisation (WTO). It is likely that biotechnology will gain ground much more rapidly in the twenty‐first century than in the past. Despite rapid, detailed and precise advances in gene technology, its applications have not been the received with a great deal of consumer enthusiasm. Consumers have approached genetically modified foods with considerable apprehension and opposition. Consumer concerns about bioengineered food products focus on the questions of human health, environmental and social risks and benefits. The most important stages in the process of marketing new foods produced using biotechnology are to demonstrate user need and consumer acceptance. Generally, the technical complexity of biotechnology makes it difficult for consumers to understand details of the product and the specific attributes of biotechnology applications. Scientific uncertainty, the nature of consumer concerns and general reluctance to accept biotechnology products, increase the importance of consumer protection. Legal protection is a very important factor in the solution of new social problems related to technological advances. More specifically, consumer and environmental law support consumer protection related to foods produced with biotechnology. The basic principles of consumer law can be re‐formulated as consumer rights. Environmental law is a new phenomenon, but precautionary principles and public participation in decision‐making for environmental law are relevant to consumer protection relating to bioengineered food products.     

Bankruptcy filings before and after implementation of the bankruptcy reform law

After the effective date of the Bankruptcy Reform Act (1979), bankruptcy filings rose sharply in most states. The increase can be ascribed partially to the fact that unemployment rose and working hours declined from 1978 to 1980. In addition, state laws on garnishment had a greater effect on bankruptcy filings in 1980 than in 1978. Nonetheless, a significant increase in filing rates from 1978 to 1980 could not be accounted for by changes in state laws or employment conditions. The evidence is consistent with the hypothesis that the Act, per se, contributed to the increase in bankruptcy filings.     

International bankruptcy and the spirit of comity: New U.S. law encourages cooperation among nations

While many international businesses are successful, others experience financial difficulties and file for bankruptcy. These cases pose challenges for bankruptcy courts worldwide because the assets of the debtor are located in more than one nation. How is this being handled? The trend is toward cooperation. Under the principle of comity, one nation gives effect to the laws and judicial decisions of another nation as a matter of deference and mutual respect. The Bankruptcy Abuse Prevention and Consumer Protection Act (the Act), effective October 2005, amends the bankruptcy code in several significant ways. One such amendment is Chapter 15: Ancillary and Other Cross-Border Cases. Chapter 15 not only embraces but also advances the spirit of comity.