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Maryland Law Review Volume 75 Issue 2 Article 2 Vindicating Bankruptcy Rights Kara J. Bruce Follow this and additional works at: Part of the Bankruptcy Law Commons,
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Maryland Law Review Volume 75 Issue 2 Article 2 Vindicating Bankruptcy Rights Kara J. Bruce Follow this and additional works at: Part of the Bankruptcy Law Commons, and the Consumer Protection Law Commons Recommended Citation 75 Md. L. Rev 443 (2016) This Article is brought to you for free and open access by the Academic Journals at Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of Carey Law. For more information, please contact MARYLAND LAW REVIEW VOLUME NUMBER 2 Seventy-fifth Anniversary Edition Articles VINDICATING BANKRUPTCY RIGHTS KARA J. BRUCE * TABLE OF CONTENTS I. DEBTOR CLASS ACTIONS AND THE CHALLENGES THEY FACE A. Debtor Class Actions B. Jurisdictional Challenges to Debtor Class Actions C. Arbitration Agreements as a Shield to Class Action Liability The Liberal Federal Policy in Favor of Arbitration Class Arbitration Waivers The Supreme Court s Rejection of Equitable Challenges to Class Arbitration Waivers a. Unconscionability Challenges and AT&T v. Concepcion Kara J. Bruce. * Associate Professor, University of Toledo College of Law. This Article has benefitted from the helpful feedback of Michael Blankenheim, Matthew Bruckner, Pamela Foohey, Gregory Gilchrist, Susan Martyn, Elizabeth McCuskey, Nicole Porter, Geoffrey Rapp, and Jay Westbrook, as well as the comments of the Case Western Reserve Law School faculty and participants at the 2014 Central States Law School Association Annual Meeting, the 2014 UMass Dartmouth Junior Faculty Forum, and the 2013 Ohio Junior Scholarship Exchange. Jay Nabors, Jenna Hohan, and Trisha Krewson provided helpful research assistance. I thank the University of Toledo College of Law for providing generous research support. 443 444 MARYLAND LAW REVIEW [VOL. 75:443 b. Effective Vindication Challenges and American Express Co. v. Italian Colors Restaurant The Current State of Class Arbitration Waiver Jurisprudence III. THE FAA AND CONSUMER CLASS ACTIONS IN BANKRUPTCY A. The Limited Force of Class Arbitration Waivers in Bankruptcy B. The FAA s Goals Must, at Times, Yield to Bankruptcy Policy C. Debtor Class Actions Under the Inherent Conflict Test D. Ensuring the Effective Vindication of Bankruptcy Rights Through the Inherent Conflict Analysis IV. CERTIFYING A DEBTOR CLASS V. CONCLUSION Hundreds of thousands of consumer debtors pass through the bankruptcy process each year. 1 Although these cases are legally complex, the bankruptcy system handles them in a routinized manner. 2 This streamlined process allows consumer debtors to obtain a discharge of their debts at relatively low financial cost, 3 yet the system leaves open avenues for abuse. Repeat players can take advantage of the bankruptcy process its complexity, the limited savvy of many debtors, and the likelihood that smallscale misbehavior will go unnoticed or unaddressed to extract undue benefits. 4 In November 2014, for example, national news media reported allegations that large national lenders, including JPMorgan Chase, Bank of Amer- 1. See NATIONAL BANKRUPTCY RESEARCH CENTER, https://www.nbkrc.com (last visited Aug. 24, 2015) (aggregating bankruptcy filing data); AMERICAN BANKRUPTCY INSTITUTE, Bankruptcy Statistics, (last visited Aug. 24, 2015). 2. See, e.g., HENRY J. SOMMER ET AL., CONSUMER BANKRUPTCY LAW AND PRACTICE 81 (John Rao ed., 8th ed. 2006) ( Once it has been decided that bankruptcy is appropriate in a particular case, most of the remaining work is relatively routine. A good deal of it involves preparation of the necessary papers for the initial filing.... ). But see Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, 20 AM. BANKR. INST. L. REV. 17, (2012) (noting that, especially after enactment of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act, there are ever fewer seemingly simple cases ). 3. William C. Whitford, The Ideal of Individualized Justice: Consumer Bankruptcy as Consumer Protection, and Consumer Protection in Consumer Bankruptcy, 68 AM. BANKR. L.J. 397, 406 (1994) ( Routine, uncontested cases allow [consumer bankruptcy attorneys] to charge low fees, which in turn makes it easier to attract a sufficiently large clientele to justify investment in routinized procedures. ). 4. See generally Kara Bruce, The Debtor Class, 88 TUL. L. REV. 21, (2013) (describing the gap between bankruptcy s requirements and creditor action in consumer bankruptcy cases). 2016] VINDICATING BANKRUPTCY RIGHTS 445 ica, and Citigroup, refused to remove debt that had been discharged in bankruptcy from borrowers credit reports. 5 This tactic is believed to pressure borrowers into repaying debts they no longer owe. 6 Six years earlier, Katherine Porter brought to light pervasive problems in proofs of claim filed by mortgage lenders and servicers. 7 Her study of 1744 chapter 13 bankruptcy cases revealed rampant errors in bankruptcy mortgage claims, most of which negatively affected debtors or competing creditors, and nearly all of which passed through the bankruptcy process unchecked. 8 In the late 1990s, the Sears Corporation faced criminal liability and the largest fine ever assessed for bankruptcy fraud, based on a widespread program to collect debt using unenforceable reaffirmation agreements. 9 This type of behavior has affected thousands of debtors in bankruptcy. 10 It not only violates federal law and bankruptcy court orders, but also undermines the fundamental goals of consumer bankruptcy: treating creditors fairly and providing debtors a fresh financial start. 11 This Article is part of the first comprehensive study examining the use of class action adversary proceedings 12 to curb systematic overreaching by creditors in bankruptcy. 13 Class actions have long been promoted as a solution to the problem of small value consumer claims, as they permit litigants to bring claims that are uneconomical to litigate on an individual basis. 14 These actions not only compensate individuals for harm suffered, but also 5. Jessica Silver-Greenberg, Debts Canceled by Bankruptcy Still Mar Consumer Credit Scores, N.Y. TIMES, (Nov. 12, 2014), More recently, The New York Times reported that Bank of America has sought credit under a settlement with the Justice Department for forgiving mortgage loans that were no longer owed because they had already been eliminated by the bankruptcy discharge. See Gretchen Morgenson, Bank of America s Relief for Mortgage Borrowers Is Questioned, N.Y. TIMES, (May 10, 2015), 6. Silver-Greenberg, supra note Katherine Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87 TEX. L. REV. 121 (2008). 8. See id. at See Bruce, supra note 4, at (describing the Sears Corporation s reaffirmation practices and the criminal liability and penalties that resulted); Barnaby J. Feder, The Harder Side of Sears, N.Y. TIMES (July 20, 1997), (same). 10. See Bruce, supra note 4, at (collecting examples). 11. See id. at (discussing consumer bankruptcy s goals); Margaret Howard, A Theory of Discharge in Consumer Bankruptcy, 48 OHIO ST. L.J. 1047, 1047 (1987) (describing the freshstart policy of consumer bankruptcy). 12. Adversary proceedings are civil actions brought in connection with a bankruptcy case. See FED. R. BANKR. P. 7001; COLLIER ON BANKRUPTCY I refer to class action adversary proceedings brought by debtor classes as debtor class actions throughout this Article. 13. The first article in this series, The Debtor Class, considered threshold jurisdictional concerns that have troubled courts and perhaps deterred debtors from pursuing aggregate claims in bankruptcy. See Bruce, supra note Id. at 40 (collecting authority). 446 MARYLAND LAW REVIEW [VOL. 75:443 force defendants to internalize some of the costs of their misconduct. 15 In this way, class actions can serve as a valuable complement to bankruptcy s broader regulatory efforts. 16 Class actions also increase transparency, preserve judicial resources, and encourage uniformity and consistency in the application of law. 17 Moreover, bankruptcy courts are well-suited to handle debtor class actions, based on their institutional capacity for handling aggregate claims and addressing consumer protection s goals. 18 Nevertheless, the class action has steadily lost traction in the civil justice system. In a series of recent cases, the Supreme Court has bolstered businesses ability to limit their exposure to class litigation through class action waivers contained in consumer arbitration agreements. 19 In particular, the Supreme Court has rejected two equitable challenges to class arbitration waivers, 20 indicating that the strong federal policies underlying the Federal Arbitration Act ( FAA ) trump[] any interest in ensuring the prosecution of low-value claims. 21 In another series of cases, the Supreme Court and lower federal courts have heightened the requirements of class certification, limiting the window of cases that can be brought on a classwide basis. 22 This Article clarifies a path for debtor class actions in the modern, anti-class action framework. First, no matter how powerful class arbitration waivers may be outside of bankruptcy, courts have broad discretion to prohibit bankruptcy claims from being resolved in arbitration if arbitration would create an inherent conflict with bankruptcy law or necessarily jeop- 15. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) ( A class action... aggregat[es] the relatively paltry potential recoveries into something worth someone s (usually an attorney s) labor. (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)). Absent such aggregation, defendant firms are in a position to spread the litigation costs over the entire class of... claims, while plaintiffs... can not.... David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 IND. L.J. 561, 564 (1987); see also In re Am. Reserve Corp., 840 F.2d 487, 489 (7th Cir. 1988) ( [T]he class action provides compensation that cannot be achieved in any other way; although the costs of litigation may consume much of the benefit, the device still serves a deterrent function by ensuring that wrongdoers bear the costs of their activities. ). 16. See Bruce, supra note 4, at 40 (discussing the regulatory benefits of private litigation). For a brief discussion and response to predominant critiques of class actions, see id. at See id. 18. See infra text accompanying notes See Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, (2013) (rejecting effective vindication of statutory rights challenge to class arbitration waivers); AT&T Mobility LLC v. Concepcion, 131 S. Ct (2011) (holding unconscionability challenge to class arbitration waiver was preempted by the Federal Arbitration Act ( FAA )); Stolt-Nielsen S.A. v. AnimalFeeds Int l Corp., 559 U.S. 662, 687 (2010) (holding arbitration clause that was silent on the issue of class arbitration could not be construed to permit class arbitration). 20. I use the term class arbitration waivers to describe any waivers of class action rights that appear in an arbitration agreement. 21. Italian Colors Rest., 133 S. Ct. at 2312 n See infra Part IV. 2016] VINDICATING BANKRUPTCY RIGHTS 447 ardize the objectives of the Bankruptcy Code. 23 As a descriptive matter, arbitration of many debtor class action proceedings will likely present an inherent conflict with the Bankruptcy Code. 24 As a normative matter, courts should consider class-killing arbitration clauses as probative evidence of an inherent conflict whenever the clause would preclude debtor classes from effectively vindicating their bankruptcy rights. 25 Second, although the requirements for class certification are rigorous, some of the most troubling debtor class action cases are prime candidates for certification. 26 To be sure, the window of debtor class action cases that can survive these modern challenges is narrow. Nevertheless, in light of the regulatory benefits of class actions, debtors attorneys, case trustees, and courts should embrace debtor classes to the extent permissible under applicable law. In addition, scholars and lawmakers should consider ways to encourage greater levels of compliance with applicable bankruptcy law and procedure, whether by reviving aspects of the class device or advancing non-class methods of private litigation. 27 Part II begins by describing debtor class actions and the challenges they face. It then focuses on the rise of class action waivers in consumer arbitration agreements, the Supreme Court s embrace of these waivers, and the impact this case law has on small value claims. 28 Part III places these developments in the context of a debtor class action proceeding, arguing that courts can, through application of the inherent conflict test, preserve debtor class actions in the face of a class arbitration waiver. 29 In Part IV, this Article argues that modern class certification standards do not completely foreclose debtor class action relief. 30 This Article concludes by observing that class actions can serve as a valuable component of consumer bankruptcy s regulatory structure, and looks forward to additional reforms to encourage compliance with consumer bankruptcy law See infra Part III.B. 24. See infra Part III.C. 25. See infra Part III.D. 26. See infra Part IV. 27. A subsequent article discusses additional options to address lender noncompliance in bankruptcy. See Kara Bruce, Closing Consumer Bankruptcy s Enforcement Gap, forthcoming (2016). 28. See infra Part II. 29. See infra Part III.A D. 30. See infra Part IV. 31. See infra Part V. 448 MARYLAND LAW REVIEW [VOL. 75:443 I. DEBTOR CLASS ACTIONS AND THE CHALLENGES THEY FACE A. Debtor Class Actions This series of articles seeks to address a rift between the norms of bankruptcy law and the realities of bankruptcy practice. As noted above, large institutional lenders some with thousands of borrowers in bankruptcy may routinely fail to comply with consumer bankruptcy law and procedure. 32 The alarming prevalence of this behavior came to the fore in the wake of the Great Recession, along with the robo-signing scandal that exposed similar misconduct in mortgage foreclosure cases. 33 Yet high profile examples preceding and following the foreclosure crisis indicate that this problem is not limited to mortgage lenders and servicers and likewise has not been resolved. 34 Some cases of lender noncompliance in bankruptcy arise from understaffing, institutional sloppiness, or the use of bookkeeping software that is not designed to accommodate the bankruptcy process. 35 Others suggest a more calculated departure from the requirements of bankruptcy law and procedure. 36 Whatever their origin, the actions or inactions of creditors in bankruptcy can disadvantage competing claimants to the debtor s limited pool of assets, or may jeopardize the debtor s pursuit of a fresh start. 37 Moreover, although some of these issues have been highly publicized and have resulted in enforcement 38 and law reform 39 efforts, lender noncompliance persists See supra notes 5 9 and accompanying text; Bruce, supra note 4, at (collecting additional examples). 33. See Bruce, supra note 4, at (describing pervasive under-compliance with bankruptcy and foreclosure law by mortgage lenders and servicers). 34. See supra note 5 (highlighting recent examples); Bruce, supra note 4, at (highlighting examples not related to the Great Recession). 35. See, e.g., Bruce, supra note 4, at 28; Alan M. White, Losing the Paper Mortgage Assignments, Note Transfers and Consumer Protection, 24 LOY. CONSUMER L. REV. 468, (2012) (describing mortgage lenders documentation shortcuts, such as assembly-line signing and notarizing of affidavits for foreclosure cases, mortgage assignments, note allonges and related documents known generally as robo-signing ). 36. See, e.g., In re Stewart, 391 B.R. 327, (Bankr. E.D. La. 2008) (sanctioning mortgage servicer for inflating proofs of claim with fees for excessive drive-by property inspections, inspections on property other than the debtor s, and two broker price opinions that were allegedly conducted when the property was inaccessible to civilians in the wake of Hurricane Katrina). 37. See Bruce, supra note 4, at See id. at 35 (discussing efforts by the U.S. Trustee Program, federal and state agencies, and individual bankruptcy judges to address such abuse). 39. See, e.g., FED. R. BANKR. P (amending the proof-of-claim filing rules to require, among other things, an itemization of interest, fees, expenses, and other charges claimed, as well as the amount necessary to cure a default and, if the lien is on the debtor s principal residence, provide an escrow statement as of the petition date); id. at (requiring holders of mortgage claims to provide notice before a change in the amount of mortgage payments, as well as notices 2016] VINDICATING BANKRUPTCY RIGHTS 449 In the first article in this series, The Debtor Class, I explored the use of class action adversary proceedings as a complement to bankruptcy s regulatory structure and an added check on lender conduct. 41 As other scholars have observed, the evidence of sloppiness and overreaching in the bankruptcy arena suggests that large consumer lenders may lack sufficient incentives to comply with bankruptcy law and procedure in consumer bankruptcy cases. 42 Consumer bankruptcy features numerous layers of protection from abuse including the presence of a case trustee, the oversight of a United States Trustee Program, and the bankruptcy courts statutory and inherent powers to address wrongdoing 43 but each of these entities is poorly positioned to discover small but pervasive incidences of lender misconduct. 44 Moreover, even if a debtor or her attorney discovers the abuse, it might not be economically feasible to challenge the practices. 45 A robust threat of class actions may provide a deterrent stopgap at a lower institutional cost, fill in the gaps that remain from existing enforcement efforts, and deter future wrongful conduct. 46 In many ways, bankruptcy is an ideal forum for consumer class actions to flourish. First, the bankruptcy system has a long history of furthering the goals of consumer financial protection. William Whitford has argued that of the fees, expenses, or charges incurred post-petition that the claimant asserts are recoverable from the debtor). 40. To date, the national mortgage settlement is the most significant enforcement effort of bankruptcy misconduct. See About the Settlement, JOINT STATE-FEDERAL NATIONAL MORTGAGE SETTLEMENTS, (last visited Aug. 24, 2015). Yet it has become increasingly clear that violations of bankruptcy law remain, and the mortgage lenders and servicers subject to the settlement have not followed it to the letter. See Danielle Douglas, Some Big Banks Are Still Violating the National Mortgage Settlement, Report Says, WASH. POST (Dec. 4, 2013), are-still-violating-the-national-mortgage-settlement-report-says/2013/12/04/02b4091a-5d1b-11e3-95c eb2b0e1_story.html; Bruce, supra note 4, at 35 (cataloguing early evidence of noncompliance with new Bankruptcy Rules). Moreover, reports of lenders failure to clean credit reports and other foreclosure practices suggest that these problems will continue. See Silver- Greenberg, supra note 5; Gretchen Morgenson, Borrowers, Beware: The Robo-Signers Aren t Finished Yet, N.Y. TIMES, (Nov. 15, 2014), 41. Bruce, supra note 4, at See id. at 23; see also Porter, supra note 7, at 171 ( [T]he current system suggests that creditors can operate with the knowledge that their claims will not be reviewed or challenged. ). 43. Law v. Siegel, 134 S. Ct. 1188, 1194 (2014) (discussing bankruptcy courts statutory and inherent powers). 44. See Bruce, supra note 4, at 37 (highlighting the limitations of many current methods to combat lender misconduct); Anne E. Wells, Not in My House: Combating Unethical Mortgage Lender Practices and Related Attorney Misconduc
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