U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

85–404 PDF 2003

BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2003, AND THE

NEED FOR BANKRUPTCY REFORM

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 975

MARCH 4, 2003

Serial No. 24

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah, Chairman

HOWARD COBLE, North Carolina 

JEFF FLAKE, Arizona 

JOHN R. CARTER, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE CHABOT, Ohio 

TOM FEENEY, Florida 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

DIANE K. TAYLOR, Counsel 

JAMES DALEY, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

MARCH 4, 2003

OPENING STATEMENT 

Page 

The Honorable Chris Cannon, a Representative in Congress From the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 3

The Honorable Jerrold Nadler, a Representative in Congress From the State 

of New York .......................................................................................................... 5

The Honorable Howard Coble, a Representative in Congress From the State 

of North Carolina ................................................................................................. 7

WITNESSES 

Mr. Lawrence A. Friedman, Director, Executive Office for United States 

Trustees, United States Department of Justice 

Oral Testimony ..................................................................................................... 68

Prepared Statement ............................................................................................. 69

Ms. Lucile P. Beckwith, President and Chief Executive Officer, Palmetto 

Trust Federal Credit Union, Columbia, SC, on behalf of Credit Union 

National Association, Inc. 

Oral Testimony ..................................................................................................... 73

Prepared Statement ............................................................................................. 76

Judith Greenstone Miller, Esq., Raymond & Prokop, P.C., Southfield MI, 

on behalf of the Commercial Law League of America 

Oral Testimony ..................................................................................................... 83

Prepared Statement ............................................................................................. 84

George Wallace, Esq., of Counsel, Eckert Seamans Cherin & Mellot, LLC, 

Washington, DC, on behalf of the Coalition for Responsible Bankruptcy 

Laws 

Oral Testimony ..................................................................................................... 116

Prepared Statement ............................................................................................. 118

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 2

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress From the State of New York ............................................................... 6

Letter from organizations opposed to H.R. 975 ..................................................... 9

Prepared Statement of Joseph Patchan, Bankruptcy Trustee ............................. 12

Article from the Credit Union Journal .................................................................. 16

Bankruptcy Article from the Lexington Herald-Leader ........................................ 21

Letter from Robert D. Evans, Governmental Affairs, American Bar Association (ABA) ............................................................................................................. 25

Prepared Statement of The Bond Market Association ......................................... 33

Prepared Statement of the International Council of Shopping Centers ............. 41

Prepared Statement of Robin Schauseil, President, National Association of 

Credit Management ............................................................................................. 45

Page

IV

Letter from Fred R. Becker, Jr., President/CEO, National Association of Federal Credit Unions (NAFCU) .............................................................................. 49

Prepared Statement of the National Multi Housing Council/National Apartment Association Joint Legislative Program, National Leased Housing Association, Manufactured Housing Institute and the Institute of Real Estate 

Management ......................................................................................................... 51

Prepared Statement of Dean Sheaffer, Senior Vice President of Credit and 

CRM, Boscov’s Department Stores, Inc., on behalf of the National Retail 

Federation ............................................................................................................. 53

Legislative History of the Bankruptcy Reform Act of 2002 ................................. 56

Letter from Lucile P. Beckwith, President/CEO, Palmetto Trust Federal Credit Union, CUNA & Affiliates ............................................................................... 137

Memo from Robert Green, Penn, Schoen & Berland Associates, Inc. ................. 139

Memo from Jan van Lohuizen and Katie Reade, Voter/Consumer Research ..... 141

Article from the Credit Union Journal .................................................................. 142

Letter from Fred R. Becker, Jr., President/CEO, National Association of Federal Credit Unions (NAFCU) .............................................................................. 144

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions posed to witnesses after the hearing and their responses 

Lawrence A. Friedman ........................................................................................ 153

Lucile P. Beckwith ............................................................................................... 173

Judith Greenstone Miller .................................................................................... 182

George Wallace ..................................................................................................... 207

(1)

BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2003, AND THE 

NEED FOR BANKRUPTCY REFORM 

TUESDAY, MARCH 4, 2003

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2 p.m., in Room 

2141, Rayburn House Office Building, Hon. Chris Cannon [Chairman of the Subcommittee] presiding. 

Mr. CANNON. I want to thank you all for coming out today. I 

want to begin today’s legislative hearing before the Subcommittee 

on Commercial and Administrative Law by extending a warm welcome to my colleague from North Carolina and my friend Mr. Watt, 

the Subcommittee’s distinguished Ranking Member, as well as the 

other Subcommittee Members who we expect to join us over time, 

and also our witnesses today. It is my sincere hope that the inaugural hearing of the Subcommittee in the 108th Congress commences what will be a productive legislative agenda and a cooperative working relationship. 

In that regard, it is particularly appropriate and timely that H.R. 

975, the ‘‘Bankruptcy Abuse Prevention and Consumer Protection 

Act of 2003,’’ is the focus of our first legislative hearing. 

Today’s hearing is especially timely, because just last month the 

Administrative Office of the United States Courts reported the 

number of bankruptcy filings filed during a 1-year period once 

again has broken all previous records. During calendar year 2002, 

nearly 1.6 million bankruptcy cases were filed, reflecting an increase of approximately 6 percent over the prior year. This has 

been growing faster than our economy and our population combined. 

I guess as a backdrop, the Chairman of the Judiciary Committee 

Mr. Sensenbrenner introduced H.R. 975 with 50 original cosponsors 

last week. Representing the most comprehensive set of reforms to 

the bankruptcy system in nearly 25 years, H.R. 975 seeks to improve bankruptcy law and practice by restoring personal responsibility and integrity in the bankruptcy system and by ensuring that 

the system is fair for both debtors and creditors. 

Besides consumer and business bankruptcy law reforms, H.R. 

975 includes an extensive array of provisions ranging from implementing an entirely new form of bankruptcy relief to deal with the 

2

complexities of transnational insolvencies to extending special protections to family farmers and fishermen. H.R. 975 is yet a further 

perfection of legislation that has been the subject of intense congressional consideration and debate for nearly 6 years. It is essentially identical to the bankruptcy reform legislation that the House 

considered and passed less than 4 months ago on the last day of 

the 107th Congress by a vote of 244 to 116. Indeed, the House on 

not one, but on six separate occasions has registered its unqualified 

bipartisan support for this legislation’s predecessors in the last 

three Congresses. 

Arguably some may wonder why it is even necessary to hold a 

hearing on this legislation given this fact and especially in light of 

the fact that over the course of the last 3 Congresses, there have 

been at least 17 prior hearings on the subject of bankruptcy reform 

before this Subcommittee and the full Committee at which nearly 

130 witnesses testified. Nevertheless, we are here today to embellish further the legislative record in support of bankruptcy reform. 

Today’s hearing will also provide a valuable opportunity for those 

of us, like myself, who are new to this Subcommittee or who are 

new to the Congress, like my colleagues from the States of Tennessee, Texas and Florida, to acquaint ourselves with H.R. 975’s 

proposed reforms, with the assistance of our excellent panel of witnesses. 

It is my hope that today’s hearing will serve as a forum for the 

expression of all views on all issues presented by H.R. 975. From 

my perspective it would be particularly useful for the witnesses to 

discuss whether the current bankruptcy law adequately deals with 

fraud and abuse, and whether the proposed reforms would assist 

those who are defrauded, as well as in the court system and law 

enforcement who are charged with ferreting out fraud and abuse 

in the bankruptcy system. It would also be useful to hear from our 

witnesses with respect to how abuse and fraud in the current bankruptcy system affects American businesses and our Nation’s citizens generally, and why, given the current economic circumstances, 

the need for comprehensive bankruptcy reform is even greater. 

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH

I want to begin today’s legislative hearing before the Subcommittee on Commercial and Administrative Law by extending a warm welcome to my colleague from 

North Carolina, Mr. Watt, the Subcommittee’s distinguished Ranking Member, as 

well as to the other Subcommittee Members and our witnesses. It is my sincere 

hope that this inaugural hearing of the Subcommittee in the 108th Congress commences what will be a productive legislative agenda and cooperative working relationship. 

In that regard, it is particularly appropriate and timely that H.R. 975, the ‘‘Bankruptcy Abuse Prevention and Consumer Protection Act of 2003,’’ is the focus of our 

first legislative hearing. Today’s hearing is especially timely because just last 

month, the Administrative Office of the United States Courts reported that the 

number of bankruptcy filings filed during a one-year period—once again—has broken all previous records. During calendar year 2002, nearly 1.6 million bankruptcy 

cases were filed, reflecting an increase of approximately 6 percent over the prior 

year. 

Against this backdrop, the Chairman of the Judiciary Committee, Mr. Sensenbrenner, introduced H.R. 975 with 50 original cosponsors last week. Representing 

the most comprehensive set of reforms to the bankruptcy system in nearly 25 years, 

H.R. 975 seeks to improve bankruptcy law and practice by restoring personal reVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
3

sponsibility and integrity in the bankruptcy system and by ensuring that the system 

is fair for both debtors and creditors. Besides consumer and business bankruptcy 

law reforms, H.R. 975 includes an extensive array of provisions ranging from implementing an entirely new form of bankruptcy relief to deal with the complexities of 

transnational insolvencies to extending special protections to family farmers and 

fishermen. 

H.R. 975 is yet a further perfection of legislation that has been the subject of intense Congressional consideration and debate for nearly six years. It is essentially 

identical to bankruptcy reform legislation that the House considered and passed less 

then four months ago on the last day of the 107th Congress by a vote of 244 to 116. 

Indeed, the House on not one, but on six separate occasions has registered its unqualified bipartisan support for this legislation’s predecessors in the last three Congresses. 

Arguably, some may wonder why it is even necessary to hold a hearing on this 

legislation given this fact and especially in light of the fact that over the course of 

the last three Congresses there have been at least 17 prior hearings on the subject 

of bankruptcy reform before this Subcommittee and the full Committee at which 

nearly 130 witnesses testified. 

Nevertheless, we are here today to embellish further the legislative record in support of bankruptcy reform. Today’s hearing will also provide a valuable opportunity 

for those of us, like myself—who are new to this Subcommittee or new to the Congress, like my colleagues from the states of Tennessee, Texas and Florida—to acquaint ourselves with H.R. 975’s proposed reforms with the assistance of our excellent panel of witnesses. 

It is my hope that today’s hearing will serve as a forum for the expression of all 

views on all issues presented by H.R. 975. From my perspective, it would be particularly useful for the witnesses to discuss whether the current bankruptcy law adequately deals with fraud and abuse and whether the proposed legislative reforms 

would assist those who are defrauded as well as those in the court system and in 

law enforcement who are charged with ferreting out fraud and abuse in the bankruptcy system. It would also be useful to hear from our witnesses with respect to 

how abuse and fraud in the current bankruptcy system impacts on American businesses and our nation’s citizens generally; and why, given the current economic circumstances, the need for comprehensive bankruptcy reform is even greater.

Mr. CANNON. I now turn to my colleague Mr. Watt, the distinguished Ranking Member of the Subcommittee, and ask him if he 

has any opening remarks. 

Mr. WATT. Thank you, Mr. Chairman. I want to, first of all, return the compliment and tell you how much I am looking forward 

to serving with you as the Chair of this Committee and serving in 

my capacity as the Ranking Member of the Subcommittee since 

this is our first official business of this term of Congress, and I 

think it is actually quite a tribute to you, Mr. Chairman, that there 

is a hearing taking place on the bankruptcy bill, because as I recall, 2 years ago one of the major complaints that we had was that 

the bill itself, without the benefit of a hearing for the new Members 

of the Committee or Subcommittee, went directly to the full Committee; no hearing at the Subcommittee level, no hearing at the full 

Committee level, and directly to markup. And some of us attributed that to the fact that the full Committee may have been trying 

to snub the Subcommittee Chairman. 

So it looks like you have got enough power to get a hearing at 

this level, and I doubt that we will get to mark the bill up at this 

level, but at least we ought to be having some hearings, even 

though this bill appears to be pretty much the same bill that we 

dealt with last time. 

I wish some of the new Members were here so that it would add 

power to my argument that a hearing such as this helps to inform 

the new Members of the Judiciary Committee, but maybe they 

have already made up their minds about it. 

4

At a minimum this hearing allows me to put on the record a couple of things that I have put on the record before, and let me just 

put a couple of things on the record. Number one, I, like most everybody in America, thinks that there is abuse of the existing 

bankruptcy system, and that some reform is needed to try to rein 

in the abuse of the bankruptcy system. 

Unlike many of my colleagues and the majority of the House, in 

fact, I do not believe this bill does a good job of doing that, and I 

want to restate again, much to the ire of my consumer friends and 

my creditor and debtor friends, my belief that a deal was made 

that minimizes the impact of this bill on fraud and abuse, and that 

deal basically allowed poor people to—whether they abuse the system or not, to go into one form of bankruptcy and not-so-poor people to go into another form of bankruptcy. 

I think the means test is a terrible idea if the objective is to get 

to people who are abusing the system, because I think people are 

abusing the system whether they fall above the means test, whether they fall below the means test, and some people are not abusing 

the system whether they fall above the means test or below the 

means test level. 

So if your purpose in doing bankruptcy reform was to do a reform bill that gets at fraud and abuse of the system, to go and set 

up a means test that automatically exempts some people from having to be responsible runs contrary, in my opinion, to that, and I 

have said it over and over again. But I won’t belabor that. I don’t 

have enough time to belabor it. I have said it over and over again. 

I continue to believe it. I think it is a terrible public policy decision 

to create a pauper’s bankruptcy court and a higher-income bankruptcy court, and it is just bad public policy, and I will continue 

to say that throughout this process, even though virtually everybody is brought into this means test as a way of getting the bill 

passed. 

So if we could go back and roll up our sleeves and really get at 

the problems that are besetting the bankruptcy system and do the 

hard work that would be necessary to come up with a system that 

would get at the abuse that is going on, and not just kind of pass 

for some people, I would be the first to roll up my sleeves, but I 

don’t think that is going to happen this term. It didn’t happen last 

term. It didn’t happen the term before that, and so I think we are 

about to engage in a travesty on the public. 

So with that, I will yield back whatever—I probably don’t have 

any time—back, but I will yield it back anyway. 

Mr. CANNON. Given your eloquence and our relationship, we 

didn’t run the clock, although we will in the future. 

Did you have a written statement you wanted to submit? 

Mr. WATT. No, Mr. Chairman. 

Mr. CANNON. Thank you. 

Without objection, all Members may place their statements in 

the record at this point. Is there any objection? 

Mr. NADLER. Is there any right to object that I can make a statement now? 

Mr. CANNON. Certainly. Would you like to make an opening 

statement? 

Mr. NADLER. Yes. 

5

Mr. CANNON. May I just ask, who would like to make an opening 

statement? 

Okay. Why don’t you go ahead for 5 minutes, Mr. Nadler, and 

I shall—may—if I might just interject here. I shall tap when the 

light goes red, and if you could finish up, and also to our panel 

members who may not have done that before so that we can move 

the hearing expeditiously. 

Thank you, and the gentleman is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman, and I am pleased to welcome you as our new Subcommittee Chair on the occasion of your 

first hearing at the helm of the Subcommittee. I would also like to 

thank you and Chairman Sensenbrenner for following regular 

order on this bill despite the great pressure that has been exerted 

in some corners to circumvent the normal process. 

Although we have been considering bankruptcy legislation since 

the end of 1997, this bill has gone through many incarnations. Indeed, this is the first hearing that we have held since the beginning of the last Congress. During that time many things have happened. The economy has worsened. Whatever the reasons, that is 

a fact. People are hurting, and more than that, businesses are 

hurting. This bill will make it much harder to rescue a business 

as a going concern and to keep it from liquidation, and thus it will 

hurt many employees, communities, trade creditors and other businesses unnecessarily. 

Making a discharge in bankruptcy more elusive will make it 

harder for consumers to get a fresh start and to continue to buy 

products. Household debt in this country has reached a record 

level. With that come more bankruptcies, but no serious economists 

would argue that a precipitous drop in consumer spending would 

help our economy. 

Bankruptcy is a trade-off. Encouraged risk-taking in business allows distressed families to remain in the economy, creating demand 

for products businesses must sell to remain alive. Bankruptcy 

doesn’t cause default any more than a hospital causes people to be 

sick. 

Today’s witnesses will stress the importance of making sure individuals understand the facts on bankruptcy before filing. The facts 

are—is that it is not a walk in the park. A debtor in Chapter 7 

must give up all nonexempt assets in order to obtain a discharge. 

Secured debts must be paid, or the property is subject to foreclosure. The bankruptcy remains on the debtor’s record for 10 

years, and the debtor may not refile for 6 years under current law 

and 8 under the bill, which is 1 more year than is found in Deuteronomy. Apparently the banks who wrote this bill believe they know 

better than God on this one. 

It can be hard to get a job, an apartment or a loan. As a Majority 

witness who had been a debtor told this Committee a few years 

ago, had she known the consequences of filing, she might not have 

done so. 

No one on this Committee seriously believes that people should 

avoid debts that they can repay. The question, rather, is does this 

bill make sense. Members should ask themselves why the overwhelming majority of bankruptcy professionals, scholars, trustees, 

creditor lawyers, corporation lawyers and judges are appalled that 

6

Congress is even contemplating this bill. There is a terrible disconnect between people who actually have to make the system 

function, regardless of their role or interest, who genuinely oppose 

this bill, and many people here in Congress and those who follow 

the demands of special interests who have a stake in some provision of this bill who generally think this is a great idea that requires no further investigation. 

Over the years this Committee has heard from, among other people, Ken Klee, one of the leading bankruptcy scholars and business 

bankruptcy lawyers in the country, and former Republican bankruptcy counsel to this Committee. He has drafted Supreme Court 

briefs signed by Members of this Committee. Ralph Mabey, one of 

the most respected business bankruptcy lawyers in the country, 

has also testified against this bill. The late Lawrence King of NYU, 

an editor in chief of the authoritative Collier on Bankruptcy, has 

testified against this bill. Bob Waldschmidt on behalf of The National Association of Bankruptcy Trustees and Hank Hildebrand on 

behalf of the National Association of Chapter 13 Trustees have 

strongly criticized this bill in testimony, notwithstanding the fact 

that their organizations do not take formal positions on the bill. 

We have heard from consumer rights organizations, women 

groups, child advocacy groups, unions, civil rights groups and every 

national bankruptcy organization in the country, who have testified 

that this bill will hurt consumers, will hurt families, will hurt children, yes, children, will hurt employees, minorities and the economy as a whole. It will raise costs to the system and will disrupt 

the efficient management of bankruptcy proceedings. 

Mr. Chairman, despite the votes in this House, opposition to this 

bill is hardly marginal. In fact, outside the Beltway it is mainstream among the Nation’s experts in bankruptcy. We have had 

many hearings over the years, but the considered opinion of people 

in the position to understand this technical subject matter has been 

systematically ignored. 

Mr. Chairman, I know the leadership of this House is intent on 

moving the bill. I know it has been bought and paid for many times 

over by lobbying and campaign contributions. I know it is a priority 

of the President’s, but we have a responsibility to the country to 

be deliberative, to take a careful look and to get it right despite the 

politics. Today we are having a hearing. I ask my colleagues to 

please listen and consider. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. CANNON. I thank the gentleman from New York, Mr. Nadler. 

[The prepared statement of Mr. Nadler follows:]

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK

Thank you, Mr. Chairman. I am pleased to welcome you as our new Subcommittee Chair on the occasion of your first hearing at the helm of this Subcommittee. I would also like to thank you and Chairman Sensenbrenner for following regular order on this bill despite the great pressure that has been exerted 

in some quarters to circumvent the normal process. 

Although we have been considering bankruptcy legislation since the end of 1997, 

this bill has gone through many incarnations. Indeed, this is the first hearing that 

we have held since the beginning of the last Congress. 

During that time, many things have happened. The economy has worsened. Whatever the reasons, that is a fact. People are hurting, and more than that, businesses 

7

are hurting. This bill will make it much harder to rescue a going concern and thus 

hurt communities employees, trade creditors, and other businesses unnecessarily. 

Making a discharge in bankruptcy more elusive will make it harder for consumers 

to get a fresh start and continue to buy. Household debt has reached record levels. 

With that come more bankruptcies, but no serious economist would argue that a 

precipitous drop in consumer spending would help our economy. 

Bankruptcy is a trade-off. Encourage risk-taking in business, allow distressed 

families to remain in the economy creating demand for products businesses must 

sell to remain alive. 

Bankruptcy doesn’t cause default any more than a hospital causes people to be 

sick. Today’s witnesses will stress the importance of making sure individuals understand the facts on bankruptcy before filing. The facts are that it is not walk in the 

park. A debtor in ch. 7 must give up all non-exempt assets in order to obtain a discharge. Secured debts must be paid or the property is subject to foreclosure. The 

bankruptcy remains on the debtor’s record for ten years and the debtor may not 

refile for six years under current law and eight under the bill, which is one more 

year than is found in Deuteronomy. Apparently the banks believe they know better 

than G-d on this one. It can be harder to get a job, an apartment, or a loan. As 

a majority witness who had been a debtor told this committee a few years, had she 

known the consequences of filing, she may not have done so. 

No one on this Committee seriously believes that people should avoid debts they 

can repay. The question is rather, does this bill make sense. Members should ask 

themselves why the overwhelming majority of bankruptcy professionals, scholars, 

trustees, creditor lawyers, corporation lawyers, and judges are appalled that Congress is even contemplating this bill. There is a terrible disconnect between people 

who actually have to make the system function—regardless of their role or interests—oppose this bill, and here in Congress, the demands of special interests who 

have a stake in some provision in this bill generally think this is a great idea that 

requires no further investigation. 

Over the years, this committee has heard from, among other people, Ken Klee, 

one of the leading bankruptcy scholars and business bankruptcy lawyers in the 

country, and former Republican bankruptcy counsel to this Committee. He has 

drafted Supreme Court briefs signed by members of this Committee. Ralph Maybe, 

one of the most respected business bankruptcy lawyers in the country, has also testified against this bill. The late Lawrence King of New York University, and Editor 

in Chief of the authoritative Colliers on Bankruptcy, has testified against this bill. 

Bob Walschmitt on behalf of the National Association of Bankruptcy Trustees and 

Hank Hildebrandt, on behalf of the National Association of Chapter 13 Trustees, 

have strongly criticized this bill in testimony notwithstanding the fact that their organizations do not take formal positions on this bill. 

We have heard from consumer rights organizations, women’s groups, child advocacy groups, unions, civil rights groups, and every national bankruptcy organization 

in the country that this bill will hurt consumers, families, children—yes, children— employees, minorities, and the economy. It will raise costs to the system, and disrupt the efficient management of bankruptcy proceedings. 

Mr. Chairman, despite the votes in this House, opposition to this bill is hardly 

marginal. In fact, outside the beltway, it is mainstream among the nation’s experts. 

We have had many hearings over the years, but the considered opinion of people 

in a position to understand this technical subject matter has been ignored. 

Mr. Chairman, I know that the Leadership is intent on moving this bill. I know 

that it is a priority of the President’s, but we have a responsibility to the country 

to be deliberative, to take a careful look, and to get it right no matter what the politics. 

Today, we are having a hearing. Please, I ask my colleagues, please listen.

Mr. CANNON. The record should also reflect the presence of Mr. 

Delahunt from Massachusetts and Mr. Coble, from North Carolina. 

And my understanding is that Mr. Coble would like to be recognized for 5 minutes. 

Mr. COBLE. Sixty seconds, Mr. Chairman. 

Mr. Chairman, thank you for having the hearing, A. B, abuse of 

the system is a problem that needs to be addressed. This bill may 

or may not be the appropriate vehicle. I don’t think this bill—this 

bill may not be as good as its proponents contend, probably not as 

bad as its critics claim; probably subtle shades of gray. I appreciate 

you having the hearing, Mr. Chairman. I have another hearing 

8

going on now that I am going to probably have to probably go back 

and forth, but in any event, thank you for recognizing me. 

Mr. CANNON. I thank the gentleman, and we will be happy to try 

and accommodate your schedule for questioning if you would like 

to ask questions here. 

Mr. Delahunt. 

Mr. DELAHUNT. Just an inquiry, Mr. Chairman. Has there been 

a decision made as to when there would be a markup on this proposal? 

Mr. CANNON. Let me answer the gentleman by first responding 

to what the gentleman from New York suggested. I can assure you 

that I am here to listen to the panel, and we are studying this 

issue. And I don’t believe we have set a date for a markup, although I can assure the gentleman that Mr. Sensenbrenner and 

others would like to move it quickly. But we will be thoughtful in 

the process, I can assure you. 

Mr. DELAHUNT. By quickly, I mean if I could just indulge my 

friend from Utah, are we talking a matter of weeks, or are we talking maybe after St. Patrick’s Day? 

Mr. CANNON. I don’t know. 

Mr. DELAHUNT. Don’t know. 

Mr. CANNON. Quickly means as soon as this body with regular 

order can move it. So we will have to wait and let you know as 

soon as something is decided. 

I thank the gentleman. 

Mr. NADLER. Mr. Chairman. 

Mr. CANNON. Yes. 

Mr. NADLER. Before we start the witnesses, may I be recognized 

for a unanimous consent request? 

Mr. CANNON. Certainly. 

Mr. NADLER. Thank you, Mr. Chairman. I ask unanimous consent at this time to place into the record the letter supported by 

225 diverse organizations opposing the bill. I would also ask that 

the written testimony of former bankruptcy judge and former head 

of the U.S. Trustee Program, Jerry Patchan, explaining his views 

on the problems of the bill be entered into the record. And additionally, I would ask unanimous consent that two articles, one an oped by the Public Employees Credit Union in North Carolina disputing the CUNA position on this bill, and the second an article 

quoting former ABI president and creditor attorney Ricardo Kilpatrick stating the bill is a terrible mistake be placed in the record. 

As we say in Brooklyn, Mr. Chairman, these people aren’t chopped 

liver. I urge all the Members of the Committee take their concerns 

very seriously. 

Mr. CANNON. Without objection, so ordered. 

Mr. NADLER. Thank you, Mr. Chairman. 

[The material referred to follows:]

9


Group1.eps
10


Group2.eps
11


Group3.eps
12


Patchan1.eps
13


Patchan2.eps
14


Patchan3.eps
15


Patchan4.eps
16


CUJA1.eps
17


CUJA2.eps
18


CUJA3.eps
19


CUJA4.eps
20


CUJA5.eps
21


LHL1.eps
22


LHL2.eps
23


LHL3.eps
24

Mr. WATT. I ask unanimous consent that a letter dated March 

4, 2003 from the American Bar Association be made a part of the 

record. It is addressed to you as Chairman of the Subcommittee. 

Mr. CANNON. Without objection, so ordered. 

[The material referred to follows:]

25


ABA1.eps
26


ABA2.eps
27


ABA3.eps
28


ABA4.eps
29


ABA5.eps
30


ABA6.eps
31


ABA7.eps
32

Mr. CANNON. And I ask unanimous consent that we submit for 

the record, in addition to the testimony that we will receive today 

from the witnesses, written statements from the following organizations: The Bond Market Association, the International Council of 

Shopping Centers, National Association of Credit Management, National Association of Federal Credit Unions, National Multi-Housing Council and National Retail Foundation. In addition, I would 

like to submit for the record a statement by Philip Strauss of the 

San Francisco Department of Child Support Services. Without objection, so ordered. 

[The material referred to follows:]

33


BMA1.eps
34


BMA2.eps
35


BMA3.eps
36


BMA4.eps
37


BMA5.eps
38


BMA6.eps
39


BMA7.eps
40


BMA8.eps
41

PREPARED STATEMENT OF THE INTERNATIONAL COUNCIL OF SHOPPING CENTERS

INTRODUCTION

The International Council of Shopping Centers (ICSC) is pleased to present this 

written statement for the record to the House Judiciary Committee’s Subcommittee 

on Commercial and Administrative Law in conjunction with its March 4, 2003 hearing on the Bankruptcy Abuse Prevention and Consumer Protection Act of 2003 (H.R. 

975). 

ICSC is the global trade association of the shopping center industry. Its 41,000 

members in the United States, Canada and more than 77 other countries around 

the world include shopping center owners, developers, managers, investors, lenders, 

retailers and other professionals. The shopping center industry contributes significantly to the U.S. economy. In 2002, shopping centers in the U.S. generated over 

$1.2 trillion in retail sales and over $53 billion in state sales tax revenue, and employed almost 11 million people. 

First and foremost, ICSC would like to commend the House Judiciary Committee 

and this Subcommittee for its efforts over the past few years to enact meaningful 

bankruptcy reform legislation. We are hopeful that H.R. 975, recently introduced by 

Committee Chairman James Sensenbrenner (R-WI), will be enacted promptly so it 

can end existing abuses of the bankruptcy system. Although all of ICSC’s concerns are not addressed in H.R. 975, we believe it is a well-balanced piece of legislation 

and should be approved and signed into law as soon as possible. 

BUSINESS BANKRUPTCY ABUSES ARE A GROWING PROBLEM

As we all know, an increasing number of retailers and entertainment establishments have been filing for bankruptcy protection over the last few years, including 

Ames, Bradlees, Crown Books, FAO Schwartz, Filenes Basement, Grand Union, 

Kmart, Lechters, Montgomery Ward, United Artists, and Zany Brainy, just to name 

a few. It seems as if every week another longstanding business is declaring bankruptcy. Furthermore, until our nation’s economy reaches full recovery, it is very 

likely that additional businesses—both large and small alike—will be forced to seek 

the protections of Chapter 7 and 11 of the U.S. Bankruptcy Code. 

ICSC supports and respects an underlying goal of the bankruptcy system that 

companies facing financial catastrophe should be able to reorganize their businesses 

under Chapter 11. Unfortunately, more and more solvent businesses are taking advantage of the system and filing for bankruptcy protection in order to accomplish 

goals that would otherwise not be permissible, such as shedding undesirable leases. 

In addition, many U.S. bankruptcy judges and trustees are not abiding by existing 

rules that were enacted by Congress to protect shopping center owners. As a result, 

many shopping center owners are losing control over their own properties, neighboring tenants are losing business, retail employees are losing jobs or suffering reduced working hours, and local economies are being threatened. 

SHOPPING CENTERS NEED SPECIAL PROTECTION UNDER THE BANKRUPTCY CODE

Bankruptcies pose unique risks and hardships to shopping center owners that are 

not faced by other creditors because such owners are compelled creditors to their retail tenants. As a compelled creditor, a shopping center owner must, under the 

Bankruptcy Code, continue to provide leased space and services to its debtor tenants 

without any real assurance of payment or knowledge as to whether or when its 

leases will be assumed or rejected or whether its stores will be vacated. 

On the other hand, trade creditors can decide for themselves whether or not they 

want to continue providing credit to its bankrupt customers for goods or services. 

Banks and other lenders are not obliged to continue making loans to their clients 

once they file for bankruptcy. Utility companies can demand security deposits before 

they provide additional services to their customers. In fact, some judges are granting ‘‘critical vendor motions’’ made by certain creditors that allow them to receive 

their pre-petition claims (before all other creditors) in exchange for agreeing to provide their goods or services to the debtor during bankruptcy. 

Another element unique to shopping center owners is the interdependence and 

synergy that exists between a shopping center and its tenants. Owners carefully design a ‘‘tenant mix’’ for each of its shopping centers in order to maximize customer 

traffic from its market area. The tenant mix includes tenants based on their nature 

or ‘‘use’’, their quality, and their contribution to the overall shopping center, and is 

enforced by lease clauses that describe the required uses, conditions and terms of 

operation. Such clauses are designed to prevent an owner from losing control over 

its own property and to maintain a well-balanced shopping atmosphere for the local 

community. 

42

For example, an owner and a retailer may enter into an agreement that restricts 

the tenant, or an assignee, from changing its line of business to one that competes 

with another store in the same shopping center. When a use clause is ignored during bankruptcy proceedings, the delicate retail balance and synergy that has been 

painstakingly achieved by an owner with its tenants is disturbed and can deal a 

devastating blow to the entire shopping center, and to the community at large. 

Acknowledging that shopping center owners are in a truly unique position once 

one of its tenants files for bankruptcy, Congress enacted special protections in Section 365 of the Code in 1978 and 1984. Unfortunately, many of these laws either 

have not been enforced or have been liberally construed against shopping center 

owners beyond Congress’ original intent. 

LEASES NEED TO BE ASSUMED OR REJECTED WITHIN A REASONABLE,

FIXED TIME PERIOD

Under Section 365(d)(4), tenants have 60 days after filing for bankruptcy to assume or reject their leases. If additional time is needed, the court may extend the 

time period ‘‘for cause’’. Unfortunately, in most cases, the ‘‘for cause’’ exception has 

become the rule. As a matter of practice, bankruptcy judges routinely extend the 

60-day period for several months or years. 

In many instances, debtors do not have to decide what they plan on doing with 

their leases until their plans of reorganization are confirmed. Some debtors are even 

permitted to make such decisions after the date of confirmation. In a significant current case, Kmart has filed a motion to extend the time period to assume or reject 

their leases to 270 days after confirmation of their plan of reorganization, which 

would be well in excess of two years from their original filing. 

As a result, the stores of these bankrupt retailers often remain closed for long periods of time, casting a dark shadow on the entire shopping center. Even if a shopping center owner receives rent from the bankrupt tenant during this period, a vacant store usually creates a negative impact on the other stores in the shopping center. Not only do the neighboring stores suffer reduced traffic and sales, but the 

owner, by virtue of percentage rent clauses that have been written into their leases, 

suffers reduced percentage rent income from its other tenants. 

To make matters worse, the owner is unable to make arrangements to lease out 

the vacant space to another potential tenant since the bankrupt retailer is not required to inform the owner whether it plans to assume or reject the lease. It is this 

uncertainty that is most frustrating to shopping center owners. They, and the rest 

of the shopping center, are essentially kept in limbo until the debtor, or the debtor’s 

trustee, makes a decision to assume or reject its lease. Owners are not attempting 

to pressure debtors to reject their leases. Instead, they simply want a determinable 

period of time for their bankrupt tenants to assume or reject their leases. 

The current situation is clearly unfair to shopping center owners and has to be 

remedied. While we realize that 60 days in most cases is not enough time for a 

bankrupt retailer to decide which of its leases it wants to assume or reject, we 

strongly believe that a reasonable, fixed time period must be created so an owner, 

and the rest of the tenants in the shopping center, have certainty as to when a lease 

of a vacant store will be either assumed or rejected. 

One must remember that, in most cases, a debtor can decide when it files for 

bankruptcy protection. Retail chains do not suddenly decide they will file for bankruptcy. They typically review their economic situation well in advance of filing a 

bankruptcy petition. Retailers and their advisors have a pretty good indication even 

before they file for bankruptcy which leases they want to assume and which they 

want to reject since it is often the very reason they are filing for bankruptcy. 

Section 404(a) of H.R. 975 would require a debtor tenant to assume or reject its 

leases within 120 days after filing for bankruptcy. Prior to the expiration of the 120 

days, a judge could extend this time period for an additional 90 days upon the motion of the trustee or owner ‘‘for cause’’. Additional extensions could be granted only 

upon the prior written consent of the owner. 

By requiring an owner’s consent for additional extensions after the initial 120-day 

and court-extended 90-day periods, shopping center owners would retain a certain 

degree of control of their property if a tenant has not decided to assume or reject 

its leases within 210 days. Owners would often be amenable to extending the time 

period for assumption or rejection for a certain length of time if it appears to be 

in the best interest of both parties. 

While ICSC believes that a total of 120 days (including a court extension ‘‘for 

cause’’) is ample time for retailers in bankruptcy to make informed decisions as to 

which leases should be assumed and which should be rejected, to the extent the 

43

other shopping center provisions listed below are included in the final package, we 

would support this provision of H.R. 975. 

‘‘USE’’ CLAUSES NEED TO BE ADHERED TO BY TRUSTEES UPON ASSIGNMENT

As mentioned above, a well balanced ‘‘tenant mix’’ helps create the character and 

synergy among the various tenants of a shopping center. A lease’s ‘‘use’’ clause is 

specifically designed to maintain this tenant mix, and is supposed to be adhered to 

upon assumption or assignment. Unfortunately, a growing number of judges are allowing trustees to assign shopping center leases to outside retailers in clear violation of existing use clauses and Code Sections 365(f)(2)(B) and 365(b)(3). 

For example, there was recently a case involving a children’s educational retailer 

in the Boston-area in which the judge allowed the trustee to assign two of its unexpired leases to a jeweler and a candle store, even though another children’s educational retailer offered bids, albeit lower ones, on those leases. As a result, the 

shopping center owner lost the ability to maintain an educational store in his center—a major draw to many of its customers. 

Use clauses are mutually agreed-upon provisions that are intended to direct the 

use of a particular property to a particular use. They do not prevent the assignment 

of a property to another retailer; however, the new tenant is supposed to adhere to 

the lease’s use clause. 

Congress has already recognized in the Bankruptcy Code that a shopping center 

does not merely consist of land and buildings. It is also a particular mix of retail 

uses which the owner has the right to determine. Thus, Section 365(f)(2)(B) already 

requires that a trustee has to obtain adequate assurance that a lease’s use clause 

will be respected before he or she can assign the lease to a third party. Section 

365(b)(3)(C), defining ‘‘adequate assurance’’, states that ‘‘. . . adequate assurance of 

future performance of a lease of real property in a shopping center includes adequate assurance . . . that assumption or assignment of such lease is subject to all 

the provisions thereof, including (but not limited to) provisions such as radius, location, use, or exclusivity provision....’’

Yet, a number of bankruptcy judges have ignored this requirement. This abuse 

of the Bankruptcy Code must end. Section 404(b) of H.R. 975 would amend Section 

365(f)(1) to make it crystal clear to all trustees that the shopping center provisions 

contained in Section 365(b), including that relating to adequate assurance that use 

clauses will be respected, must be adhered to before they can assign leases to other 

retailers. 

SHOPPING CENTER OWNERS NEED GREATER ACCESS TO CREDITORS’ COMMITTEES

Another growing concern of the shopping center industry is the lack of appointments by many U.S. trustees of shopping center owners to creditors’ committees 

during bankruptcy proceedings. A creditors’ committee is the key decision-making 

body in a bankruptcy case as it helps formulates how and when a debtor is going 

to reorganize its business. In addition to having a vested interest in the outcome 

of a bankruptcy case, a shopping center owner can provide valuable knowledge, insight and perspective to a creditors’ committee in order to assist in the creation of 

a successful reorganization plan. 

Under current law, U.S. trustees are authorized under Section 1102(a)(1) to appoint a committee of creditors holding unsecured claims. Unfortunately, many trustees have excluded shopping center owners from these committees, even if they qualify to serve under Section 1102(b)(1). This section states that a creditors’ committee 

‘‘. . . shall ordinarily consist of the persons, willing to serve, that hold the seven 

largest claims against the debtor of the kinds represented on such committee...’’. 

Even in cases where an owner is not one of the seven largest pre-petition creditors, it usually is one of the seven largest post-petition creditors due to damage 

claims from rejected leases. A retailer may have been making timely lease payments 

up to the time it filed for bankruptcy; however, if it later defaults on payments 

(which it is obligated to make) or decides to reject some or all of its leases, the shopping center owner usually has very large potential rejection claim damages. Certainly, such an owner should be entitled to participate on these creditors’ committees. 

Although bankruptcy judges currently may order the appointment of additional 

committees to assure adequate representation of creditors, only the trustees are actually authorized to appoint such committees. Therefore, the discretion to add shopping center owners to creditors’ committees is solely vested with the U.S. trustees. 

Section 405 of H.R. 975 would also give this discretion to bankruptcy judges as it 

would permit them, after receiving a request from an interested party, to order a 

44

change in the membership of a creditors’ committee to ensure the adequate representation of creditors. 

NON-MONETARY DEFAULTS NEED TO BE CURED BEFORE A LEASE CAN BE ASSUMED

Under Section 365(b)(1)(A) of the Bankruptcy Code, a trustee may not assume an 

unexpired lease unless he or she cures, or provides adequate assurance that he or 

she will promptly cure, all existing monetary and non-monetary defaults. This provision was enacted by Congress to ensure that existing leases are adhered to before 

they may be assumed and later assigned to another tenant. Unfortunately, some 

judges are allowing leases to be assumed and assigned despite the fact that such 

leases remain in default. 

Section 328 of H.R. 975 would amend existing law by providing that non-monetary defaults of unexpired leases of real property that are ‘‘impossible’’ to cure would 

not prevent a trustee from assuming a lease. Unlike monetary defaults, certain nonmonetary defaults are impossible to cure. For example, a vacant store can later be 

reopened; however, the default (the vacating of the store) can never be fully cured 

since it is impossible to reopen the store during the time it was left vacant. 

However, Section 328 also provides that ‘‘. . . if such default arises from a failure 

to operate in accordance with a nonresidential real property lease, then such default 

shall be cured by performance at and after the time of assumption in accordance 

with such lease, and pecuniary losses resulting from such default shall be 

compensated...’’. Therefore, a trustee would be able to assume the lease of a vacant store so long as its non-monetary defaults are cured (e.g., the store is reopened) 

at and after the time of assumption. ICSC supports this provision since it would require trustees to abide by the terms of a commercial lease agreement upon its assumption. 

A REASONABLE ADMINISTRATIVE PRIORITY FOR RENTS SHOULD BE ENACTED

Under current law, post-petition rents are treated as an administrative priority 

until a lease is assumed or rejected under Section 365(d)(3). If a lease is rejected, 

post-rejection rents are treated as an unsecured claim under Section 502(b)(6), 

which usually limits the claim to one year’s rent. The Bankruptcy Code, however, 

does not specifically address claims resulting from nonresidential real property 

leases that are assumed and subsequently rejected. 

However, in a 1996 U.S. Court of Appeals case, Klein Sleep Products, the court 

held that all future rents due under an assumed lease, regardless of whether it is 

subsequently rejected, should be treated as an administrative priority and not limited by Section 502(b)(6). As a practical matter, shopping center owners prefer to 

lease their property to operating retailers as soon as possible to maintain a vibrant 

center and collect rent, rather than maintain a vacant store whose unpaid rents are 

treated as an administrative priority. 

Section 445 of H.R. 975 would treat rents due under an assumed and subsequently rejected lease as an administrative priority for two years after the date of 

rejection or turnover of the premises, whichever is later, ‘‘without reduction or setoff 

for any reason except for sums actually received or to be received from a nondebtor’’. 

Any remaining rents due for the balance of the lease term would be treated as an 

unsecured claim limited under Section 502(b)(6). 

While ICSC prefers that rents due under an assumed and subsequently rejected 

lease be treated as an administrative priority for three years, and that any remaining rents due under the lease be treated as an unsecured claim not limited under 

Section 502(b)(6), we accept this provision as a reasonable compromise so long as 

the other shopping center provisions listed above are included in the final package. 

CONCLUSION

ICSC appreciates the opportunity to present its views on this very important matter, and would like to thank this Subcommittee, as well as the full Committee and 

Chairman Sensenbrenner, for all of its work over the past few years to enact bankruptcy reform legislation. We are hopeful that this bill will pass both the House and 

Senate soon and be signed into law by President Bush.

45

PREPARED STATEMENT OF ROBIN SCHAUSEIL

Good afternoon. 

Please let me introduce myself to you: my name is Robin Schauseil and I am the 

President of the National Association of Credit Management (NACM). I am pleased 

to present the perspectives of the National Association of Credit Management 

(NACM) to you regarding H.R. 975, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2003. I want to extend our thanks to you for affording 

NACM the opportunity to share its views with you. 

Founded in 1896, NACM is a 24,000 member international trade association composed of corporate credit executives, who represent 23,000 different businesses. 

NACM represents American business credit professionals from all 50 states, and is 

proud to have member representatives from more than 30 countries around the 

world. NACM’s mission is the constant improvement and enhancement of the business trade credit profession. 

The NACM membership is comprised of American businesses of all kinds: manufacturers, wholesalers, service industries, and financial institutions. The profile of 

the NACM members ranges from the smallest businesses to a majority of the Fortune 500. NACM’s members make the daily decisions regarding the extension of unsecured business and trade credit from one company to another. In fact, business 

credit executives provide billions of dollars each day through the extension of business and trade credit among companies around the world. 

NACM is very pleased to support H.R. 975 because of the commercial bankruptcy 

laws it improves. My comments will only focus on the commercial issues raised in 

the proposed legislation. 

SMALL BUSINESS CHAPTER 11 REORGANIZATIONS

Subtitle B of the legislation contains the provisions dealing with small business 

reorganizations. NACM supports the efforts to create substance and procedure to expedite the administration and conclusion of reorganization cases for small businesses. These provisions were originally offered to proposed bankruptcy legislation 

as part of the recommendations of the National Bankruptcy Review Commission 

(NBRC). The NBRC conducted several hearings and received considerable testimony 

regarding the problems that small businesses have in bankruptcy proceedings. The 

premise behind the need for small business reorganization proposal is simple: the 

faster a small business can enter and exit the bankruptcy process the better the outcome is for all affected parties. Languishing in bankruptcy court strips assets from 

the debtor that could be otherwise be dedicated to a plan for reorganization that 

creditors could approve. Lengthy delays also deny creditors any hope of recovery of 

payment for goods or services extended to the debtor should the case need to be converted to a Chapter 7. 

Studies and statistics continue to dramatically show that many small businesses 

have been unable to have a plan of reorganization approved because of the time and 

expense that languishing in Chapter 11 causes. The current lengthy process of a 

Chapter 11 proceeding makes it extremely difficult for small business debtors to viably continue operations, balancing employment and service levels, paying taxes, and 

fully or partially satisfying claims of creditors. These delays create even more challenges for the small business: its own customers are fearful of the future for the 

small business in distress, impacting future business transactions. 

Testimony provided to the NBRC indicated that in a high percentage of cases, 

small business debtors were unable to produce a check register at the first meeting 

with creditors. Additionally, the overwhelmingly high conversion rate for small business debtors from Chapter 11 reorganization to Chapter 7 liquidation indicates that 

most small businesses should have been in Chapter 7 to begin with; greatly reducing court expenses, attorney fees and unclogging bankruptcy court dockets. 

The model contemplated under this legislation is patterned after an expedited 

procedure used in the federal bankruptcy court in eastern North Carolina. Under 

the local rules devised by Bankruptcy Judge Thomas Small, the period of time in 

which small business cases are adjudicated has dramatically been reduced. Most importantly, there have been no measurable deleterious impact on any small businesses to have a plan of reorganization presented and approved by the court. In fact, 

Judge Small’s statistics indicate that a higher percentage of small business debtors 

are able to have their plans of reorganization approved than is the national average. 

If this legislation is enacted, it could have the effect of helping to streamline the 

bankruptcy process by eliminating much of the time consuming issues that currently involve small businesses. Moreover, given the very low rate of successful reorganizations of businesses that file Chapter 11, the improvements contained in the 

legislation to the reorganization process for small businesses should dramatically afVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
46

fect the reorganizations on a positive basis. Given that the overwhelming majority 

of business bankruptcy cases are small businesses, the timely consideration of such 

cases will have the effect of ameliorating the huge backlog on the court dockets. Finally, because these expedited procedures will apply to only those businesses with 

less than $2 million in debts, the real benefit relief will be extended to genuine 

small businesses. 

PREFERENCES

NACM is equally supportive of the provisions contained in Sections 409 and 410 

of the bill to correct inequities that currently exist with respect to preferential 

transfers. While NACM supports the concept of the equality of treatment of creditors, the current statute creates an environment for the feeding frenzy of trustees, 

attorneys and others not part of the creditor body at the expense of vigilant trade 

creditors, with no ultimate benefit being derived by creditors of the bankrupt estate. 

Under current law, instead of having the trade creditor class be the beneficiary 

of preferential transfer recoveries, the funds that are recovered are paid to the professionals who are employed to recover them. Specifically citing small preference actions, statistics provided to the NBRC showed that bringing preference actions for 

$5,000 or less does nothing to substantially enhance distribution to creditors or restore funds to the debtor’s estate. Again, it was shown that these activities do, however, generate substantial attorney expenses. This has resulted in a large ‘‘breakdown’’ of the system, forcing vigilant trade creditors to expend considerable sums 

for representation only to learn that the ultimate beneficiaries of the recoveries do 

not correlate to those intended by the original legislation. 

The changes address problems in two important areas. First, the clarification of 

what constitutes a transaction conducted under the ordinary course of business removes the doubt and uncertainty that has permeated case law and created difficulties for the ordinary transaction of business with distressed debtors. The mere fact 

that a business may be in financial distress should not create an impediment to ordinary course dealings. Indeed, if this were to be the case, it would only precipitate 

additional bankruptcy filings. The change created by Section 409 of the legislation 

clarifies that creditors willing to continue to extend credit to financially distressed 

businesses will not be penalized. 

Second, the changes with respect to when and where certain preference actions 

may be filed are equally beneficial. Bringing preference actions in distant courts 

only forces unreasonable capitulation by creditors when they may have legitimate 

defenses but choose not to make them because of the cost involved in securing representation in those courts. These changes will also afford protection to those creditors who act in good faith when dealing with financially distressed businesses. 

Sections 409 and 410 are consistent with the recommendations of the NBRC that 

took great care and time in examining these issues. NACM agrees with the NBRC 

that these changes will help to create a ‘‘level playing field’’ with respect to bankruptcy administration. Additionally, these provisions, if enacted, will eliminate unnecessary and unproductive litigation that can affect the already overburdened 

bankruptcy court system. 

CREDITOR COMMITTEE COMPOSITION

NACM wholeheartedly supports the language in Section 405 which permits the 

court to change the membership of the creditors committee if the change is necessary to ensure adequate representation of creditors and equity security holders. 

Presently, there is no judicial redress in the event that, for whatever reason, a 

creditors committee that is appointed does not adequately represent the creditors 

as a whole. This provision correctly provides for appropriate judicial oversight of a 

very important component of the bankruptcy reorganization process. 

RECLAMATION

NACM also strongly endorses Section 1227 of H.R. 975 to modify specific reclamation provisions of the bankruptcy code. Currently, when dealing with the reclamation of goods, the bankruptcy code does not protect the rights of manufacturers and 

distributors in most cases. 

Some of the legal and practical problems that have been created are the following:

1. Vendors do not know of the filing of a bankruptcy proceeding in sufficient 

time in order to file a reclamation notice.

2. Current law permits reclamation only when the goods are still in the possession of the debtor when notice is received. With multiple operations of a 

debtor, this becomes impossible to prove or verify.

47

3. The rights of secured creditors pre-empt any reclamation rights.

4. There is no sanction on the debtor for failing to comply with the reclamation 

notice.

5. Vendors are required to immediately hire counsel in order to protect reclamation rights, only to be delayed by the lengthy court proceedings.

6. The procedure gives the debtor opportunities to force concessions from vendors with respect to post-petition credit in order to gain concessions with respect to reclamation.

7. Traditionally, manufacturers, distributors and other vendors receive little 

benefit from the current reclamation law.

Section 1227 would rectify these problems by creating a new approach for the 

treatment of reclamation claims, providing an option for a creditor to consider in 

exerting a reclamation claim. The creditor would be afforded a 45-day period from 

the date the debtor received the goods for the return of goods under a reclamation 

claim. Alternatively, a creditor could choose to have an administrative priority for 

all goods delivered within 20 days of the filing. Under the legislation, the creditor 

would be able to use only one of these options, not both. 

Simply increasing the reclamation period from 20 to 45 days will not solve the 

problem. While this initially appears to protect vendors, it may have the opposite 

effect. If the reclamation date reaches too far back, Chapter 11 debtors will not be 

able to confirm a Chapter 11 Plan because of the burden of administrative claims 

that they may be required to be paid on confirmation as a result of the reclamation 

demands. (Under the code, all administrative expenses must be paid in full before 

a plan can be confirmed.) Placing unreasonable burdens on debtors in order to effect 

a confirmation does not protect the interests of creditors in the long run. 

NACM believes that the following will be the benefits of such a change:

1. All vendors of goods will be protected.

2. There will be no ‘‘race’’ to the courthouse to file notices.

3. Vendors will not be adversely prejudiced if they do not know of the bankruptcy filing during the first days following the filing.

4. All vendors of goods will be entitled to an administrative priority claim for 

the goods actually received by the debtor within 20 days of the filing of the 

bankruptcy case. Thus, debtors contemplating the filing of a bankruptcy proceeding will have a deterrent to ‘‘loading up’’, as they will know that in order 

to confirm any Chapter 11 Plan, they will have to pay in full for all goods 

received within the 20-day period at the time of confirmation, not just those 

that are in inventory when notice is received.

5. This does not in any way alter the rights of secured creditors, so there 

should be no opposition by lenders. It does, however, impose a payment obligation on the Debtor which may have to be funded by the lenders in order 

for a Chapter 11 Plan to be confirmed.

6. Solvency or insolvency of the debtor is no longer an issue to be considered 

or litigated.

7. The issue of whether the goods are on hand and are identifiable is no longer 

an issue to be considered or litigated. 

RETAIL LEASE ASSUMPTION

Previously, NACM has expressed its concern with the language contained in Section 205 of the bill. While NACM clearly supports the most expeditious administration of bankruptcy cases as possible, artificial deadlines should not be created merely to enhance the rights of one constituency. Artificially limiting a debtor’s right to 

assume or reject the lease at 120 days may not always be in the best interest of 

all creditors and other parties in interest. There is no problem in establishing a 

deadline which should be the ‘‘normal’’ deadline, but there must be flexibility built 

into the law to permit the court to modify the deadline if facts and circumstances 

so warrant. 

The current Section 205 creates a burden upon large retailers and other similar 

businesses which may lead to decisions which have a long term effect on the reorganization process being hastily made. For instance, had this law been enacted and 

applied to the K-Mart bankruptcy filing, one could not comprehend the magnitude 

of the difficulties that would have developed for that debtor. NACM urges that the 

proposed legislation be modified to provide that the court may extend the period to 

be determined under the amendment within the discretion of the court. 

48

The National Association of Credit Management appreciates this opportunity to 

provide the perspectives of its members to the Subcommittee on the issue of bankruptcy reform. We believe that need for bankruptcy reform, especially in the area 

of commercial practices, is long overdue. We applaud the Chair and members of the 

Committee for their diligence in attempting to again move this legislation that is 

so very vital to America’s business community.

49


NAFCU1A.eps
50


NAFCU1B.eps
51

PREPARED STATEMENT OF THE NATIONAL MULTI HOUSING COUNCIL/

NATIONAL APARTMENT ASSOCIATION JOINT LEGISLATIVE PROGRAM, NATIONAL

LEASED HOUSING ASSOCIATION, MANUFACTURED HOUSING INSTITUTE AND THE IN- STITUTE OF REAL ESTATE MANAGEMENT

Chairman Sensenbrenner and members of the Committee, the undersigned organizations thank you for this opportunity to share the views of rental housing providers as you consider the Bankruptcy Abuse Prevention and Consumer Protection 

Act of 2003 (H.R. 975). 

The National Multi Housing Council represents the principal officers of the apartment industry’s largest and most prominent firms. The National Apartment Association is the largest national federation of state and local apartment associations. 

NAA is comprised of 163 affiliates and represents more than 30,000 professionals 

who own and manage more than 4.6 million apartments. NMHC and NAA jointly 

operate a federal legislative program and provide a unified voice for the private 

apartment industry. 

For the past thirty years, the National Leased Housing Association (NLHA) has 

represented the interests of developers, lenders, housing managers, housing agencies and others involved in providing federally assisted rental housing. Our members are primarily involved in the Section 8 housing programs—both project-based 

and tenant-based. NLHA’s members provide housing assistance for nearly three million families. 

The Manufactured Housing Institute (MHI) is the national trade organization representing all segments of the factory-built housing industry. MHI serves its membership by providing industry research, promotion, education and government relations programs, and by building and facilitating consensus within the industry. 

The Institute of Real Estate Management (IREM), an affiliate of the NATIONAL 

ASSOCIATION of REALTORS, is an association of property and asset managers 

who have met the strict criteria in the areas of education, experience, and ethics. 

Today, IREM members manage 24%, or 6.2 million of the nation’s conventionally 

financed apartment units, and 1.4 million units of federally assisted housing. 

Bankruptcy reform has been a long time in coming. More than 1,800 real estate 

professionals, mostly small businesses, have written to the National Bankruptcy Review Commission and Congress since 1995, providing compelling evidence of the 

need for reform. Over the past several years, the rental housing industry has witnessed an increased number of residents who manipulate the Code in order to live 

in their apartments without paying rent. The source of this abuse is the Code’s 

automatic stay provision. The undersigned organizations urge Congress to enact the 

balanced reforms found in the Bankruptcy Abuse Prevention and Consumer Protection Act (H.R. 975) and thereby reduce opportunities for abuse by those who file for 

bankruptcy in order to ‘‘live rent-free.’’

Reform is more critical now than ever. According to a recently released report by 

the Administrative Office of the U.S. Courts, new bankruptcy filings continue to 

break records. The latest data show that well over 1.57 million bankruptcies were 

filed in 2002, up 5.7 percent from the previous record set in 2001. Non-business filings made up 97.6 percent of those filed last year. 

Enactment of beneficial bankruptcy reform is long overdue. The widespread bipartisan support for bankruptcy reform, as evidenced by the more than 50 Members 

of Congress who have already joined as cosponsors of H.R. 975, reflects strong public 

opinion that the Bankruptcy Code can and must be made to work better as it becomes a more common means for Americans to restructure their finances. 

In particular, the undersigned organizations strongly urge Congress to get the job 

done and remove the loopholes in the U.S. Bankruptcy Code that allow resident 

debtors who no longer have a right to remain on the premises to stay after declaring 

bankruptcy. Rental housing residents who file bankruptcy primarily to evade their 

lease obligations impose significant economic losses on apartment owners (98% of 

which are small businesses) and prevent other renters desiring to move into the 

unit from doing so. Attorneys continue to advertise to rental housing residents that 

the Bankruptcy Code is a means to live ‘‘rent-free’’ for months at a time. In other 

cases, the automatic stay significantly delays the removal of rental housing residents who are using drugs or threatening property or other residents and guests. 

These ‘‘free ride’’ examples—more are detailed below—are abuses of the Bankruptcy Code’s ‘‘fresh start’’ principle. If the proper reforms are made, small business 

apartment owners would regain timely possession of their property and lower-income families would have quicker access to scarce affordable housing. 

H.R. 975 includes an important, balanced step to improving the automatic stay 

for the benefit of rental housing providers and residents alike. Section 311 is the 

result of extended negotiations between Senators Jeff Sessions (R-AL) and Russell 

52

Feingold (D-WI) that have yielded an agreement that balances the concerns of residents in bankruptcy with property owners seeking to reclaim their property. The 

undersigned organizations are appreciative of the significant work that these members in particular invested to reach agreement on the language of this section. While 

the agreement is not everything that the undersigned organizations have sought, we 

believe it is a fair and balanced compromise that will yield important benefits to 

the availability of affordable and market-rate rental housing in this country. 

Before Congress and the National Bankruptcy Review Commission, NMHC/NAA 

have catalogued numerous examples of frivolous bankruptcy filings by residents 

since the 1990s. Three examples out of hundreds previously presented are recounted 

here. 

An Army Colonel leased his home to a couple with three small children while he 

was stationed overseas. Before leasing the property, the firm that managed the 

Colonel’s property ran a credit check and found that the couple had a joint income 

well in excess of the monthly rent. There was nothing in the credit report to indicate 

what the Colonel and his family would face over the next two years. 

Over the course of the lease term, the residents occasionally made late payments, 

but their rent was always paid. Eventually, however, the residents failed to pay 

their rent despite several notices. After the management firm sent them a threeday notice to vacate for non-payment of rent, the firm decided to give the residents 

yet another chance and work out a repayment schedule. 

What the management firm representatives found when they approached the 

house was shocking: It was in shambles. The oven door had been ripped off its 

hinges; there were large and numerous holes in the sheet rock, some with silk flowers stuck in them; you could not tell what color the carpet was due to the trash 

and food strewn on it; the toilet in the upstairs bathroom had been ripped out of 

the floor; the air conditioning compressor was in pieces; several windows were broken; and the downstairs bathroom door had been kicked in and was hanging by one 

hinge. The management firm gave the residents a final three-day notice to vacate 

for non-payment of rent. The residents never responded to that notice, and after the 

required three-day notice period, the managers filed for eviction. 

Even after the eviction filing, the residents failed to pay their rent. Finally, a 

judge granted the eviction and ruled that the residents would have to pay all overdue rent. The residents then claimed that they were financially unable to post the 

required bond to appeal. At a hearing on that claim, the judge confirmed that the 

residents had both the income and the assets to post the appeal bond and granted 

the management firm a writ of possession. The next day, however, the managers 

were notified that the residents had filed for bankruptcy, effectively stopping the eviction process because of the Code’s automatic stay provision. 

Following multiple failed attempts to negotiate a settlement, the management 

firm filed for relief from the automatic stay. The residents then demanded a hearing 

on that motion. During the three-month period before the hearing, the residents lived 

in the house rent-free. Seven months after the ordeal began, and four months after 

the bankruptcy court assumed jurisdiction, the judge agreed to a settlement that directed the residents to move out and repair all damages. When the residents had 

not moved out in accordance with the settlement, the court issued another writ of 

possession for the next day. Finally, the resident’s possessions were removed from the 

house and their bankruptcy petition was dismissed. The overall cost to the Colonel 

(the owner of the property) was approximately $21,000. By the time the residents 

were finally evicted, the Colonel had to borrow on his life insurance, sell assets, and 

run up the balance on his credit cards. When the house was sold shortly thereafter, 

the Colonel received nothing. 

Sheri Perez, an owner of 8 rental units in Costa Mesa, CA, had renters in two 

of the units declare bankruptcy in the same month. ‘‘I know for a fact that these 

two tenants used the automatic stay and filing bankruptcy just to get out of paying 

any rent,’’ she wrote to the National Bankruptcy Review Commission. Each of the 

renters owed two months’ rent when they moved out—25 percent of Ms. Perez’s entire rental income for those months. 

Dan Snell, a property owner in Temple City, CA who manages 50 rental properties, recounted the loss sustained on a 10-unit property he manages in his letter 

to the Bankruptcy Review Commission. A resident who was being evicted for selling 

drugs on the property declared bankruptcy. Before the bankruptcy court ordered relief from the automatic stay to permit Mr. Snell to remove this drug-seller, Mr. 

Snell had to wait two months for the court to permit the eviction to proceed. ‘‘During that period,’’ wrote Mr. Snell, ‘‘the tenant continued his illegal activities and 

three of the other tenants moved out because of that activity. This episode cost the 

owner several thousand dollars in legal fees and lost rent.’’

53

These are just three examples of how abusive residents manipulate the Bankruptcy Code to live rent-free. 

The bankruptcy system was established to give individuals a second chance, not 

to be manipulated as a tool by residents to avoid eviction and live rent-free at the 

expense of rental housing providers and depriving others from moving into that 

rental unit. 

The undersigned organizations ask that the members of this Committee and the 

U.S. House of Representatives pass H.R. 975. We urge you to close the automatic 

stay loophole to ensure the viability of small business rental housing providers and 

the affordable and market-rate housing they provide.

NMHC/NAA Joint Legislative Program 

1850 M Street NW #540

Washington, DC 20036

National Leased Housing Association 

1818 N Street NW #405

Washington, DC 20036

Manufactured Housing Institute 

2101 Wilson Blvd. #601

Arlington, VA 22201

Institute of Real Estate Management 

700 11th Street NW 

Washington DC 20001

PREPARED STATEMENT OF DEAN SHEAFFER

Good afternoon. My name is Dean Sheaffer. I am Senior Vice President of Credit 

and CRM for Boscov’s Department Stores and Chairman of the Pennsylvania Retailers’ Association. Boscov’s is primarily a Mid Atlantic department store chain. In addition to Maryland and New Jersey, we have 2 stores in Delaware, 3 stores in New 

York, and more than two dozen stores in our home state of Pennsylvania. I am testifying today on behalf of the National Retail Federation. I would like to thank Chairman Cannon and Ranking Member Nadler for providing me with the opportunity 

to testify before this distinguished committee. 

The National Retail Federation (NRF) is the world’s largest retail trade association with membership that comprises all retail formats and channels of distribution 

including department, specialty, discount, catalogue, Internet and independent 

stores. NRF members represent an industry that encompasses more than 1.4 million 

U.S. retail establishments, employs more than 20 million people—about 1 in 5 

American workers—and registered 2002 sales of $3.6 trillion. NRF’s members and 

the consumers to whom they sell are greatly affected by the recent surge in consumer bankruptcies. 

Mr. Chairman, I have testified several times over the past three Congresses on 

the issue of bankruptcy reform. Today, I am here to let you know that Bankruptcies 

are still out of control. In fact, they are even more out of control than ever. Nationally, we reached a record high of more than 1.5 million consumer filings last year. 

In fact, between 1995 and 2002, consumer filings rose by seventy percent (70%). In 

Pennsylvania where we are based, consumer bankruptcies more than doubled in 

that same time period. As a business, we didn’t even get a reprieve from filings in 

the late 1990s when the economy was registering record expansion and the nation 

was enjoying near full employment. In 1996, annual consumer bankruptcies topped 

1 million for the first time in history and they have only continued to rise. 

At Boscov’s, we have approximately 500,000 billed credit accounts. In 2002 we 

closed or reduced the credit limit or took other pre-emptive action on about 40,000 

accounts in direct response to increased bankruptcies. Notably, Boscov’s combined 

January and February 2003 bankruptcy write-off was more than 22% higher than 

January and February of 2002. 

Part of the problem is that higher income people, who do not really need Chapter 

7 relief, are using that chapter to wipe out their debts regardless. These are not 

people at the margin. This is plain misuse. Tightening credit is a very blunt instrument. It hurts people at the margin by limiting their access to credit—but it does 

not get at the higher income individuals who are filing bankruptcies of convenience. 

That is why we need this legislation, to target bankruptcy misuse. 

Mr. Chairman, I know that in 2003 we are living in tougher economic times than 

just a few years ago, but I would like the opportunity to put all the numbers in 

54

perspective. Consumer bankruptcy filings are almost five and one-half (51⁄2) times 

higher than they were in 1980, a time of generally worse economic conditions. Interestingly, despite front-page headlines reporting the Enron collapse, the World.com 

bankruptcy and the K-mart reorganization, overall business bankruptcies have been 

down for nine of the last ten years. In fact, they have been cut in half from an alltime high of 71,000 in 1991. It does not, then, make sense that consumer bankruptcies have consistently continued to skyrocket. And, if the current rate of filings 

holds within the next decade, 1 in every 7 American households will have filed for 

bankruptcy. Mr. Chairman, the system is seriously, seriously flawed. It is estimated that over $40 billion was written off in bankruptcy losses in 2000, which amounts to the discharge of at least $110 million every day of that year. This 

money does not simply disappear. The cost of these losses and unpaid debts are 

borne by everyone else. When an individual declares bankruptcy rather than pay 

the $300 they may owe to Boscov’s, or the $1,000 dollars they may owe in state 

taxes or other bills, they force the rest of us to pick up their expenses. Everyone 

else’s taxes are higher, everyone else’s credit is tighter, and everyone else pays more 

for merchandise as a result of those who choose to walk away. Last year, to make 

up for these losses, it cost each of our Nation’s 100 million households several hundred dollars. Estimates suggest this year’s number will again be higher—it will be 

interesting to see the first quarter numbers from 2003 when they are published in 

the coming weeks. As I noted above, our internal numbers reflect that the tide is 

still rising. 

Now, I want to be clear. We cannot eliminate all of these losses. Some of them 

are unavoidable. Bankruptcy must remain an option for those who have experienced 

serious financial setbacks and who have no other means of recovering, especially in 

these times of economic downturn. The bankruptcy system exists to help those who 

have suffered a catastrophic accident, illness or divorce, or those who have experienced the loss of a business or job from which they cannot otherwise recover. It is 

both the safety net and the last resort for people in trouble. The knowledge that 

the bankruptcy system exists to catch them in a financial fall, even though it might 

never be used, is important. Finally, most people who file for bankruptcy need relief. 

We must be very careful to distinguish the average filer, who uses the system properly, from that smaller, but important group of others who misuse the system for 

their benefit. 

It is this trend with which we must be concerned. We believe changing consumer 

attitudes regarding personal responsibility and inherent flaws in our bankruptcy 

process have caused many individuals, who do not need full bankruptcy relief, to 

turn to the system regardless. They use it to wipe out their debts, without ever 

making a serious effort to pay. Some of this change in usage results from a decline 

in the stigma traditionally associated with filing for bankruptcy. Some of it results 

from suggestions by others who urge individuals to use bankruptcy to ‘‘beat the system.’’ According to a poll conducted in November, 2002, by Penn, Schoen and 

Berland, 82 percent of voters say that filing for bankruptcy is more socially acceptable than it was just a few years ago. Whatever the cause, irresponsible filings must 

be curtailed and consumer attitudes should be altered. 

My experience at Boscov’s, and that of credit managers at other stores with whom 

I have spoken, further convinces me that the result of this poll is right on target. 

For example, for many years we tracked the payment history of those of our customers who carry and use the Boscov’s card. The vast majority of our customers pay 

as agreed. In the past, we would occasionally see customers whose payment patterns 

were more erratic. This kind of payment history suggested to us that the customer 

was experiencing some sort of financial difficulty. We would then monitor the account and intervene as necessary, perhaps by suggesting consumer credit counseling 

or by limiting the customer’s credit line to minimize the amount of damage, prior 

to their experiencing a financial failure. 

Today, however, we see a very different picture. Often the first indication we get 

that an individual is experiencing financial difficulty is when we receive notice of 

his bankruptcy petition. A 1998/1999 study at Boscov’s showed that almost half of 

the bankruptcy petitions we receive are from customers who are not seriously delinquent with their accounts. It appears that bankruptcy is increasingly becoming a 

first step rather than a last resort. 

Mr. Chairman, consumers must have a good credit history to qualify for and continue to use a Boscov’s card. Yet we, and other retail credit grantors, have been receiving bankruptcy filings without warning from individuals who have been solid 

customers for years. We all experience temporary financial reversals in life. Most 

of us learn that, if you grit your teeth and tighten your belt a notch, you can get 

through it. But many people no longer see it that way. The rising bankruptcy filings 

reflect this. 

55

Part of it is trend can be attributed to increasingly aggressive lawyer advertising. 

We have all seen the ads on TV by lawyers promising to make individuals’ debts 

disappear. Some do not even mention bankruptcy—they talk about ‘‘restructuring’’

your finances. I question whether these aggressive advertisers inform their clients 

about the serious downsides of filing for bankruptcy. There are also bankruptcy petition preparers: clerk typists who simply fill out forms for filers. The client may 

never meet a lawyer. And with the widespread use of the Internet, websites that 

proclaim ‘‘File bankruptcy for as little as $99’’ are multiplying. I firmly believe these 

low cost ‘‘bankruptcy mills’’ are part of the problem. 

To some degree, the rise in bankruptcy filings can also be attributed to the events 

as they have played out here in Congress over the past seven years. Mr. Chairman, 

Ranking Member Nadler, each time this legislation comes close to final passage we 

see a spike in bankruptcy filings. Individuals are often counseled by attorneys or 

other bankruptcy professionals to ‘‘file quick, before bankruptcy reform becomes 

law’’ in order to reap the benefits of a full Chapter 7 discharge. In fact, distortions 

of this legislation run rampant in the press and elsewhere, and have caused many 

to believe that they won’t be able to file for bankruptcy at all once this reform becomes law. As we all know, this is simply not correct. 

At a time when 1 in every 80 households files for bankruptcy, everyone knows 

someone, or knows of someone, who has recently declared. Many of these individuals 

keep their house, their car or even their boat. Recent polling suggests that sixtynine percent (69%) of voters who know someone who has declared bankruptcy support tightening the law. Among these people, another fifty-three percent (53%) support reform because they know that they are bearing the burden of the current system. Furthermore, the same poll shows that fifty-six percent (56%) of all voters 

strongly favor an income test to ensure that those bankruptcy filers who can afford 

to pay back part of their debt do so. Mr. Chairman, responsible consumers are clearly getting fed up. 

I just want to spend a final few minutes detailing the retail industry’s long-standing support for this bill. In 1998, during the 105th Congress, we strongly supported 

the bill introduced by Mr. Gekas and Mr. Moran, H.R. 3150. It provided a very simple, up front needs-based formula that allowed the overwhelming majority of those 

who needed bankruptcy relief in Chapter 7 to have it with virtually no questions 

asked. But for that subgroup of filers, for those higher income individuals who often 

use Chapter 7 to push their debts onto others regardless of the filer’s ability to pay, 

the up front, needs-based test would have said, ‘‘No. Pay what you can afford.’’

In the 106th Congress we continued to support the conference report that passed 

both the Senate and House, but was pocket-vetoed by President Clinton during his 

final days in office. Again, in the 107th Congress, we supported the conference report for H.R. 333. Unfortunately, that bill fell victim to a politically motivated debate over essentially unrelated issues during the final days of the Congress. Like 

last year, we are deeply concerned that if this heavily negotiated bill is further watered down the intended benefits will be lost. We are also deeply concerned that 

some will again wish to attach amendments that will act as ‘‘poison pills’’ moving 

forward. While these issues may deserve consideration, they should stand on their 

own merit. In the context of this debate, their primary effect is to derail critical and 

needed changes to bankruptcy law as demonstrated by the November 13, 2002 vote 

on the House floor. 

On behalf of the National Retail Federation, I urge members of Congress to take 

swift legislative action to address the problems confronting the nation’s bankruptcy 

system. Otherwise, in the not too distant future, we may find that among a large 

segment of our society, bankruptcy filings will become the rule rather than the exception. If we are not careful, the costs of the rising tide of discretionary filings may 

tax society’s compassion for those in genuine need. We must not allow that to happen. I believe that it is imperative for Congress to pass common sense bankruptcy 

reform legislation without further amendment, now.

56


Reform1.eps
57


Reform2.eps
58


Reform3.eps
59


Reform4.eps
60


Reform5.eps
61


Reform6.eps
62


Reform7.eps
63


Reform8.eps
64


Reform9.eps
65


Reform10.eps
66


Reform11.eps
67

Mr. CANNON. Without objection, all Members may place their 

statements in the record at this point. Any objection? If not, so ordered. 

Without objection, the Chair will be authorized to recess the Subcommittee today at any point. Hearing none, so ordered. 

On unanimous consent, I request that Members have 5 legislative days to submit written statements for inclusion in today’s 

hearing record. Hearing no objection, so ordered. 

I am pleased to now introduce the witnesses for today’s hearing. 

Our first witness is Mr. Lawrence Friedman, who is the Director 

of the Executive Office for the United States Trustees in the Department of Justice in Washington, D.C. Prior to his appointment 

as Director, which I know it occurred 1 year ago today, Mr. Friedman was a partner in the Southfield, Michigan, law firm of Friedman and Kohut, where his practice included consumer business 

bankruptcy matters as well as commercial litigation. In his capacity as a Chapter 7 trustee, Mr. Friedman administered more than 

10,000 bankruptcy cases. Mr. Friedman received his undergraduate 

degree from Hillsdale College in Hillsdale, Michigan, and his law 

degree from Thomas M. Cooley Law School in Lansing, Michigan. 

Our next witness, Ms. Lucile Beckwith, is president and chief executive officer of the Palmetto Trust Federal Credit Union located 

in Columbia, South Carolina. Ms. Beckwith has served in that capacity since 1980. Today Ms. Beckwith appears on behalf of the 

Credit Union National Association, which represents more than 90 

percent of the 10,500 Federal and State credit unions across the 

Nation. Palmetto Trust, which is a member of this organization, is 

a $21.3 million federally chartered credit union with approximately 

3,700 members. 

Joining Ms. Beckwith will be Judith Greenstone Miller. Ms. Miller appears today on behalf of the Commercial Law League of 

America. Founded in 1895, the Commercial Law League is the Nation’s oldest organization, with nearly 5,000 professionals engaged 

in collections, creditors’ rights and bankruptcy matters. Ms. Miller 

is a member of the law firm of Raymond & Prokop, located in 

Southfield, Michigan. Her practice focuses on bankruptcy and insolvency matters, creditors’ rights and commercial litigation. She represents secured and unsecured creditors, debtors, and bankruptcy 

trustees in Chapter 11 organizations. Ms. Miller received her law 

degree cum laude from Wayne State University School of Law in 

1978. Prior to that, she attended the University of Michigan where 

she obtained her undergraduate degree, also cum laude, in 1975. 

George Wallace, who is a counsel to the law firm of Eckert Seamans Cherin & Mellot, is our final witness. Mr. Wallace speaks 

today on behalf of the Coalition of Responsible Bankruptcy Laws, 

which represents a broad spectrum of consumer creditors, including 

retailers, banks, credit unions, savings institutions, mortgage companies, sales finance companies and financial service providers. His 

practice includes representation of debtors and creditors. He has 

also specialized in consumer mortgage credit. Beginning the practice—or before beginning the practice of law, Mr. Wallace was a 

professor of law for 15 years. He taught at Tulane University, the 

University of Iowa College of Law, University of Virginia, Stanford 

and Rutgers. He served as a faculty adviser to a low-income legal 

68

clinic that he started in Iowa. He also served as trustee and debtors’ counsel. Mr. Wallace received his law degree from the University of Virginia Law School, where he was a member of the Order 

of the Coif and the Law Review. He received his bachelor of arts 

degree from Yale University cum laude. 

I ask that each witness present his or her oral remarks within 

the 5-minute period, as we talked about earlier. I will tap the gavel 

as soon as the red light goes on, and we will do that without distinction, but at that point if you could wrap up in a reasonable 

amount of time, we would appreciate that. Your written statements 

will be included in the hearing record. So feel free to summarize 

or highlight the salient points of your testimony. 

After the witnesses have presented their remarks, the Subcommittee Members in order that they arrive will be permitted to 

ask questions of the witness subject to the 5-minute limitation. 

There may also be a second round of questioning if the panel desires—or if the Committee desires. 

Mr. Friedman, would you now proceed with your testimony. 

STATEMENT OF LAWRENCE A. FRIEDMAN, DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES TRUSTEES, UNITED 

STATES DEPARTMENT OF JUSTICE 

Mr. FRIEDMAN. Thank you, Mr. Chairman and Members of the 

Subcommittee. I appreciate the opportunity to appear before the 

Subcommittee to discuss the United States Trustees Program’ ongoing work to combat fraud and abuse under current bankruptcy 

law, as well as the potential enhancement of this work through omnibus bankruptcy reform legislation. I submit my written testimony 

for the record, and will take a few minutes now to focus on the 

bankruptcy reform legislation. 

We believe the provisions proposed in H.R. 975, the ‘‘Bankruptcy 

Abuse Prevention and Consumer Protection Act of 2003,’’ would 

provide important new statutory tools to assist the United States 

Trustee Program in identifying and civilly prosecuting misconduct 

by debtors and others who misuse the bankruptcy system. The 

United States Trustee Program is the component of the Department of Justice with the responsibility for the oversight of bankruptcy trustees and cases. Our mission is to enhance the efficiency 

and the integrity of the bankruptcy system. The fraud and abuse 

provisions contained in H.R. 975 would increase the effectiveness 

of the program’s National Civil Enforcement Initiative and other efforts described in my written testimony. In fact, we have already 

made significant progress in preparing to implement such legislation. As we reported in testimony presented to this Committee during the last Congress, we convened working groups to develop implementation plans for each of the major new areas of responsibility that would be imposed upon the program under bankruptcy 

reform legislation. Of course, implementation plans will not be 

completed until after legislation is enacted. 

The United States Trustee Program’s current enforcement efforts 

would be aided in particular by the following provisions contained 

in H.R. 975. Section 102 amends the substantial abuse provisions 

in current law. In addition to permitting dismissal of cases under 

current standards, this section codifies a specific procedure and 

69

monetary standard for reviewing individuals in Chapter 7 who 

have primarily consumer debt, and it provides a more objective 

basis for determining which cases will be presumed abusive. This 

provision would provide much needed consistency in the application 

of abuse standards in all districts in the United States. 

Section 603 directs the Attorney General to conduct both random 

and targeted audits of Chapter 7 and Chapter 13 debtors to ensure 

against material misstatements. The debtor’s discharge is also conditioned on cooperating and making information available to the 

auditors. This provision would provide a mandate for an intensive 

and ongoing audit program to greatly enhance current methods for 

the detection of fraud and abuse. 

Section 105 and 106 create new areas of responsibility for the 

United States Trustee Program with regard to debtor education 

and credit counseling. The program must approve and maintain a 

list of credit counselors who would be able to provide financial 

counseling to all individuals before they are eligible to file for bankruptcy. The program would also be responsible for approving and 

maintaining a list of those who could provide personal financial 

management courses, and debtors would have to complete such a 

course after they filed bankruptcy in order to receive a discharge. 

This provision would address the widespread problem of financial 

illiteracy. These provision would also help ensure that debtors 

make informed choices before seeking bankruptcy relief and get the 

greatest benefit from the fresh start they are given by the discharge of debt. 

Under section 221, bankruptcy petition preparers will be required to give their customers a prescribed notice that they are not 

attorneys and cannot give legal advice. Provisions for fines and injunctions are strengthened, and the Judicial Conference is given 

authority to set maximum allowable bankruptcy petition preparer 

fees. This provision increases the accountability of bankruptcy petition preparers whose actions can have a devastating effect on debtors who seek bankruptcy protection to save their residences or for 

other legitimate purposes. 

In summary, we commend the sponsors of H.R. 975 and the 

Members of this Subcommittee for recognizing the serious and farreaching nature of bankruptcy fraud and abuse. The United States 

Trustee Program is committed to combatting this problem with the 

statutory tools at our disposal. In addition, we look forward to implementing the fraud and abuse provisions of H.R. 975 if it is enacted. These provisions will assist the program in carrying out its 

National Civil Enforcement Initiative and improving the efficiency 

and integrity of the bankruptcy system. 

Mr. Chairman, that concludes my remarks. I will be happy to answer questions from you and the Members of your Subcommittee. 

Mr. CANNON. Thank you, Mr. Friedman. 

[The prepared statement of Mr. Friedman follows:]

PREPARED STATEMENT OF LAWRENCE A. FRIEDMAN

Mr. Chairman and Members of the Subcommittee: 

I appreciate the opportunity to appear before the Subcommittee on behalf of the 

Department of Justice to discuss the United States Trustee Program’s ongoing work 

to combat fraud and abuse under current bankruptcy law, as well as the potential 

enhancement of this work through omnibus bankruptcy reform legislation. 

70

The Department believes that provisions proposed in H.R. 975, which was introduced on February 27th, would provide important new statutory tools to assist the 

United States Trustee Program in identifying and civilly prosecuting misconduct by 

debtors and others who misuse the bankruptcy system. 

The United States Trustee Program (USTP or Program) is the component of the 

Department of Justice with responsibility for the oversight of bankruptcy trustees 

and cases. Our mission is to enhance the efficiency and the integrity of the bankruptcy system. In October 2001, the USTP commenced a National Civil Enforcement 

Initiative to address bankruptcy fraud and abuse. The Program undertook this Initiative for several reasons, including the following:

The bankruptcy caseload is the largest in the federal court system. Disrespect 

for the bankruptcy system breeds disrespect for the entire judicial system. As 

the bankruptcy caseload continues to climb, more and more Americans are coming into contact with the nation’s bankruptcy system. In addition to the 1.5 million individuals and businesses that sought debt relief in Fiscal Year 2002, millions more were affected, including creditors, many of them small businesses; 

employees; retirees; and families. It is critical that this system of justice be respected as one in which the law is strictly and fairly enforced.

The integrity of the bankruptcy system relies upon complete and accurate disclosure by debtors and other participants in the system. The bankruptcy system 

largely depends upon self-reporting by debtors of their assets, liabilities, and 

other financial affairs. There is a consensus among bankruptcy professionals, 

including judges and practicing lawyers, that documents filed by debtors, petition preparers, and even attorneys who represent parties in a bankruptcy case 

too often are inaccurate and ignore the requirements of the Bankruptcy Code 

and Rules.

The monetary stakes in the bankruptcy system are substantial. Studies show 

wide disparity in potential criminal and non-criminal abuse of the bankruptcy 

system. But with more than 1.5 million new cases filed each year, more than 

$5 billion disbursed annually by private trustees in chapter 7, 12, and 13 cases, 

and hundreds of billions of dollars in corporate assets and liabilities subject to 

chapter 11 protection, potential recoveries are staggering.

The National Civil Enforcement Initiative was designed for two major purposes:

(1) To Address Debtor Misconduct: Under this prong of the Initiative, the Program uncovers such improper conduct as inaccurate financial disclosure, 

misuse of social security numbers, concealment of assets, and ‘‘substantial 

abuse’’ by those who seek discharge of debts despite an ability to repay. The 

primary civil remedies sought by Program attorneys are dismissal under 11 

U.S.C. §§ 707(a) and (b) and denial of discharge under § 727.

(2) To Ensure Consumer Protection: The Program also seeks to protect debtors 

and creditors who are victimized by those who mislead or misinform debtors, file bankruptcy petitions without a debtor’s knowledge, make false representations in a bankruptcy case, or commit other wrongful acts in connection with a bankruptcy filing. Primary targets are unscrupulous bankruptcy 

petition preparers and attorneys. The primary remedies sought are fines 

and injunctions under 11 U.S.C. § 110 and disgorgement of fees under § 329.

In addition to civil remedies taken by the Program, actions that constitute criminal misconduct are referred to the FBI and the United States Attorney for prosecution. 

As we have devoted more resources to civil enforcement, we have identified patterns of conduct that appear widespread and deserving of continued intensive pursuit. Some examples follow.

Substantial Abuse: As our offices more carefully screen chapter 7 petitions, we 

have ferreted out a high number of cases which, under almost any court standard, show substantial abuse by debtors who fail to disclose their true financial 

condition and seek to discharge debt despite an ability to repay all or part of 

that debt.

• On March 5, 2002, the bankruptcy court for the Central District of California 

granted the U.S. Trustee’s motion to dismiss the case of a debtor for substantial abuse under 11 U.S.C. § 707(b). The U.S. Trustee argued that the debtor’s 

monthly mortgage and utility payments in excess of $6,700 were patently unreasonable. The debtor, who had filed for bankruptcy on the eve of foreclosure 

on her home which she valued at $900,000, had also filed for chapter 13 relief 

two times since 1997, in each case to prevent foreclosure. In her most recent 

71

filing, the debtor did not list her prior filings or other material information 

including rental income and a $93,000 second trust deed on her home. The 

bankruptcy court agreed that the debtor’s excessive housing costs and the material omissions in her filing supported a finding of substantial abuse.

In Fiscal Year 2002, the Program successfully pursued more than 5,000 debtors 

under § 707(b) and prevented the chapter 7 discharge of almost $60 million of debt.

Concealment of Assets: Debtors who conceal or transfer assets, destroy or fail 

to provide financial records, make false statements, or commit other wrongful 

acts may be subject to denial of their discharge.

• On November 1, 2001, a debtor was denied a chapter 7 discharge following 

an all-day trial before the bankruptcy court for the District of Nevada. The 

debtor filed his petition seeking to discharge almost $650,000 in debt, without 

disclosing a revocable trust into which he transferred his residence, personal 

property, and summer home. Upon its discovery, the debtor disclosed the 

transfer in the fourth amendment to his schedules claiming he failed to disclose it upon the advice of counsel. The court held that the debtor’s desire to 

retain the property, together with other facts established at trial, provided 

the requisite intent to deny the discharge.

In Fiscal Year 2002, more than 800 debtors were denied a discharge of more than $40 million of debt on the grounds of serious misconduct under § 727.

Credit Card Bust-Outs: Recent cases have been uncovered in which debtors obtained credit cards despite little or no income, incurred huge debts, paid those 

debts with worthless checks, and incurred debt up to the credit limit again before the checks bounced.

• On October 4, 2002, in Chicago, Illinois, a debtor who pleaded guilty to bankruptcy fraud and conspiracy charges was sentenced to a twelve month prison 

term and supervised release of three years, was ordered to pay restitution in 

the amount of $337,255, and agreed to waive his bankruptcy discharge. In his 

bankruptcy case, the debtor sought to discharge approximately $366,955 in 

debts; falsely represented that he had $270,000 in cash gambling losses during 2000–2001; and declared falsely under oath that he had no interest in any 

real property. The United States Trustee identified the debtor’s credit card 

bust-out scheme as part of its civil enforcement efforts to review all chapter 

7 bankruptcy cases filed in the Northern District of Illinois for fraud and 

abuse. Several members of the Chicago U.S. Trustee’s office assisted law enforcement with the investigation.

Identity Theft: The Program now requires all debtors to show proof of identity 

at the first meeting of creditors, which is required to be held in all bankruptcy 

cases. In many cases of identity theft, a person assumes someone else’s identity 

before filing a bankruptcy case and obtains credit, along with goods and services, using that false identity. Often these crimes are not uncovered until years 

later when the victim tries to buy a home or obtain credit for some other purpose.

• On January 28, 2002, a debtor pleaded guilty in the Northern District of 

Georgia to seven counts of a nine count indictment charging him with wire 

fraud, mail fraud, the use of a false social security number, identity theft, and 

bankruptcy fraud. The debtor worked for a mortgage broker and originated 

and processed his own loans. He used the name, social security number, and 

credit history of another individual to obtain two loans to purchase real property, inducing a lender to wire transfer more than $428,000 to the settlement 

agent. When the debtor defaulted on the loans, he filed for bankruptcy to stay 

the foreclosure sale. The Atlanta office of the U.S. Trustee referred the matter 

to the U.S. Attorney.

In Fiscal Year 2002, the Program identified 8,000 debtor identification problems 

and caused debtors to correct more than 6,000 petitions. Many of these cases involved typographical errors in social security numbers that were corrected to prevent future injury to unsuspecting, potential victims. Other cases involved intentional fraud.

Bankruptcy Petition Preparers: Some of the most egregious abuses in the bankruptcy system are perpetrated by those who prey upon debtors. Most people 

who file bankruptcy are in dire financial straits and are ill-equipped to scrutinize offers of assistance. Many of these debtors face imminent foreclosure on 

their homes. Non-attorney bankruptcy petition preparers solicit clients from 

publicly available lists of those facing foreclosure.

72

Petition preparers sometimes charge exorbitant rates, engage in the unauthorized practice of law, file bankruptcy cases without the knowledge of debtors, use 

the bankruptcy process to further fraudulent schemes such as mortgage fraud, 

or otherwise violate the law. The victims of mortgage fraud often are both debtors and creditors.

• In two cases prosecuted both civilly and criminally in the Washington, DC 

area, petition preparers defrauded both debtors and mortgage lenders by filing bankruptcy cases in violation of § 110 in the names of debtors who paid 

significant fees to the defendants in return for refinancing or real estate services that were never provided. In one case, the defendant, while on pre-trial 

release, also took over properties facing foreclosure, filed bankruptcy petitions 

to delay foreclosure, and then rented the properties to innocent families with 

a purported option to buy. The renters uncovered the scheme when the mortgage lender finally was able to restart foreclosure proceedings. In one case, 

the victimized family of eight faced eviction shortly before Christmas.

In Fiscal Year 2002, the Program successfully took action under § 110 against petition preparers in more than 1,500 cases. 

In addition to the invigorated litigation efforts described above, the Program has 

taken other significant actions to uncover fraud and abuse. Last summer, the Program conducted audits of a small sample of chapter 7 cases in a pilot program we 

hope to expand in Fiscal Year 2003. The results of the pilot are being reviewed now 

to determine the best methodology to employ a more widespread audit effort. The 

results of the audit will help determine the scope of fraud and abuse in the bankruptcy system, as well as identify specific cases for civil and criminal enforcement 

actions. 

Because public outreach is also important, the Program is developing an informational video that will be distributed and made widely available for debtors and attorneys to view prior to filing bankruptcy. The video will make debtors aware of the 

basic bankruptcy process and the need to be forthcoming and accurate in their 

bankruptcy filings. 

Two other USTP activities will further strengthen our civil enforcement efforts. 

First, the Program will continue to provide training on the detection and litigation 

of abuses in the bankruptcy system for its attorneys and accountants. Similar training is also being developed for the private trustees. Second, the Program has designed a new data collection system to measure our success in civil enforcement and 

has begun to automate data collection to reduce the reporting burden on field staff 

and to increase the accuracy of the information. 

The results of our first year after implementing the National Civil Enforcement 

Initiative are dramatic. During Fiscal Year 2002, field offices reported that they 

took more than 50,000 civil enforcement and related actions (including cases resolved without resort to litigation) that yielded approximately $160 million in debts 

not discharged and potentially available for distribution to creditors. This impressive data demonstrates the scope of the problem, the skill and effectiveness of our 

attorneys and other staff in the field, and the need to continue our focused attack 

on bankruptcy fraud and abuse. 

The fraud and abuse provisions contained in H.R. 975 would increase the effectiveness of the Program’s National Civil Enforcement Initiative. In fact, we already 

have made significant progress in preparing to implement that legislation. As we 

reported in testimony presented to this Subcommittee during the last Congress, we 

convened working groups to develop implementation plans for each of the major new 

areas of responsibility that would be imposed upon the Program under bankruptcy 

reform legislation. However, these plans would require modification, based upon the 

precise terms of the new legislation introduced in this Congress. 

The USTP’s current enforcement efforts would be aided in particular by the following provisions contained in H.R. 975:

Means Testing: Section 102 amends the substantial abuse provisions in current 

law. In addition to permitting dismissal of cases under current standards, this 

codifies a specific procedure and monetary standard for reviewing individuals 

in chapter 7 who have primarily consumer debt and provides a more objective 

basis for determining which cases will be presumed abusive. This provision 

would provide much needed consistency in the application of abuse standards 

in all districts.

Debtor Audits: Section 603 directs the Attorney General to conduct both random 

and targeted audits of chapter 7 and chapter 13 debtors to ensure against material misstatements. The debtor’s discharge is also conditioned on cooperating 

with, and making information available to, the auditors. This provision would 

73

provide a mandate for an intensive and on-going audit program to greatly enhance current methods for the detection of fraud and abuse.

Debtor Education and Credit Counseling: Sections 105 and 106 create new 

areas of responsibility for the USTP. The Program must approve and maintain 

a list of credit counselors who would be able to provide financial counseling to 

all individuals before they are eligible to file bankruptcy. The Program would 

also be responsible for approving and maintaining a list of those who could provide personal financial management courses, and debtors would have to complete such a course after they file bankruptcy in order to receive a discharge. 

This provision would address the widespread problem of financial illiteracy. 

These provisions also would help ensure that debtors make informed choices before seeking bankruptcy relief and then obtain the necessary knowledge to avoid 

future financial catastrophe.

Bankruptcy Petition Preparers: Under Section 221, bankruptcy petition preparers will be required to give their customers a prescribed notice that they are 

not attorneys and cannot give legal advice. Provisions for fines and injunctions 

are strengthened, and the Judicial Conference is given authority to set a maximum allowable bankruptcy petition preparer fee. This provision increases the 

accountability of bankruptcy petition preparers whose actions can have a devastating effect on debtors who seek bankruptcy protection to save their residences or for other legitimate purposes.

In summary, the Department of Justice commends this Subcommittee for recognizing the serious and far-reaching nature of bankruptcy fraud and abuse. The 

USTP is committed to combating this problem with the statutory tools at our disposal. In addition, we look forward to implementing any new provision of bankruptcy law that the Congress may enact in the future. The fraud and abuse provisions contained in H.R. 975 would assist the Program in carrying out its National 

Civil Enforcement Initiative and improving the efficiency and integrity of the bankruptcy system. 

Mr. Chairman, that completes my prepared remarks. I would be happy to answer 

questions from the Subcommittee at this time.

Mr. CANNON. The record should reflect that the gentleman from 

Ohio Mr. Chabot has joined us. 

And, Ms. Beckwith, if you would like to proceed, we do appreciate that now. 

STATEMENT OF LUCILE P. BECKWITH, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, PALMETTO TRUST FEDERAL CREDIT 

UNION, COLUMBIA, SOUTH CAROLINA, ON BEHALF OF CREDIT UNION NATIONAL ASSOCIATION, INC. 

Ms. BECKWITH. Good afternoon, Chairman Cannon and Members 

of the Subcommittee. I am Lucile Beckwith, president and CEO of 

the 21 million Palmetto Trust Federal Credit Union in Columbia, 

South Carolina. I appreciate the opportunity to be here to tell you 

about our concerns with bankruptcies and how they are impacting 

credit unions. I am speaking on behalf of the Credit Union National Association, CUNA, which represents over 90 percent of the 

10,500 State and Federal credit unions nationwide. 

Credit unions have consistently had three top priorities for bankruptcy reform legislation, a needs-based formula, mandatory financial education and maintaining the ability of credit union members 

to voluntarily reaffirm their debts. H.R. 975 does a good job of balancing these issues. With bankruptcy filings in 2002 exceeding 1.5 

million, which is another new record, we strongly urge the 108th 

Congress to pass this compromise bill as soon as possible. 

Credit unions have become quite concerned about bankruptcies 

in the last few years. Data from credit union call reports to the National Credit Union Administration suggest that roughly 256,000 

credit union member borrowers filed in 2002. In addition, CUNA 

74

estimates that nearly 46 percent of all credit union losses in 2002 

were bankruptcy-related. Those lawsuits totaled approximately 

$775 million. 

Concerns about the rising tide of bankruptcy filings and the everincreasing number of abusive filings are shared across the country. 

A January 2003 nationwide survey found that 64 percent of the 

public feels strongly that it should be made more difficult to declare bankruptcy. Armed with this knowledge, I assure you that 

Palmetto Trust is a careful lender. We cannot afford to do otherwise. We do a good job of scrutinizing loan applications and carefully determining that the applicant is credit-worthy before extending credit. 

Unfortunately, even the most rigorous screening process cannot 

prevent all abusive bankruptcy filings. I would like to share an example from my written statement with the Subcommittee that 

clearly demonstrates how people abuse the system. 

Take, for example, two members of my credit union. They were 

a couple with a six-figure income, each of which qualified for a 

$10,000 VISA card. At the same time, they were applying for credit 

cards at other places, openly gaming the system. During 1 month, 

they maximized all these credit cards with cash advances. They 

never made a payment on any of them, waited the required time, 

and then filed for a Chapter 7 bankruptcy. An appeal to the court 

for loading up was denied. Our small credit union lost $20,000. 

What did they do with the cash? Their daughter had a very large, 

beautiful and expensive wedding in Hawaii, a long way from South 

Carolina. 

Credit unions clearly recognize the value of financial counseling 

for their members. According to a recent CUNA bankruptcy survey, 

70 percent of credit unions counsel financially troubled members at 

the credit union or refer members to an outside financial counseling organization. That is why CUNA strongly supports the provisions in H.R. 975 that establish the principle that people need information and assistance to understand what bankruptcy means 

and how to avoid financial problems. 

Because we are not-for-profit financial cooperatives, losses to the 

credit union have a direct impact on the entire membership due to 

a potential loss—potential increase to loan rates or a decrease in 

interest on savings accounts. Credit unions strongly believe that reaffirmations are a benefit both to the credit union which does not 

suffer a loss and to the member debtor, who, by reaffirming with 

the credit union, continues to have access to financial services and 

to reasonably priced credit. 

Credit unions are very anxious to see Congress enact meaningful 

bankruptcy reform and believe that needs-based bankruptcy presents the best opportunity to achieve this important public policy 

goal. Credit unions believe that consumers who have the ability to 

repay all or part of their debts should be required to file a Chapter 

13 rather than have all their debt erased in Chapter 7. Therefore, 

CUNA supports the needs-based provision that is contained in H.R. 

975. 

Mr. Chairman, all of this adds up to a bill that would create a 

fair and more realist Bankruptcy Code. Credit union members, because they own their institutions, feel the affects of abusive bankVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6601 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
75

ruptcies directly, and while no one is arguing that the bankruptcy 

legislation will completely eliminate abuses, no one should argue 

that the bill isn’t necessary because it isn’t perfect. It is our hope 

that this important legislation finally becomes law, that judges 

carefully follow the new law so that they make a more realistic 

view of people’s capacity to repay their debts, and perhaps most importantly, a renewed sense of individual accountability becomes apparent. 

Thank you, and I will be glad to answer any questions. 

Mr. CANNON. Thank you, Ms. Beckwith. 

[The prepared statement of Ms. Beckwith follows:]

76

PREPARED STATEMENT OF LUCILE P. BECKWITH


BeckA.eps
77


BeckB.eps
78


BeckC.eps
79


BeckD.eps
80


BeckE.eps
81


BeckF.eps
82


BeckG.eps
83

Mr. CANNON. We recognize the temporary presence of the Ranking Member of the full Committee, Mr. Conyers of Michigan, and, 

Ms. Miller, if you would like to proceed, I will give you 5 minutes 

now. Thank you. 

STATEMENT OF JUDITH GREENSTONE MILLER, ESQUIRE, 

RAYMOND & PROKOP, P.C., SOUTHFIELD MICHIGAN, ON BEHALF OF THE COMMERCIAL LAW LEAGUE OF AMERICA 

Ms. MILLER. Thank you. Good afternoon, and thank you for inviting me to testify before the Subcommittee on behalf of the Commercial Law League of America. The league, founded in 1895, is 

the Nation’ oldest creditors’ rights organization, comprised of attorneys and other experts in credit and finance actively engaged in 

the fields of bankruptcy, insolvency, reorganization and commercial 

law. The league has long been associated with creditor interests, 

while at the same time seeking fair, efficient and equitable administration of bankruptcy cases for all parties in interest. 

The league has consistently advocated that bankruptcy laws 

must strike a balance that is both fundamentally fair and practically sound for all parties involved. The bankruptcy legislation 

that has been proposed the last three Congresses and most recently 

introduced in almost the identical form last Thursday is neither 

fair nor practically sound. It is unfortunate that the legislation was 

again introduced prior to the conclusion of findings of this Subcommittee, because in essence, the premise, fears and conditions 

underlying the original perceived need for bankruptcy reform 6 

years ago do not exist. Moreover, the changes that have occurred 

over the last 18 months, such as the changed economy, 9/11 and 

the megabankruptcy filings such as Enron, WorldCom, K-Mart and 

the major airlines, suggests that not only the perceived need for 

bankruptcy reform be reevaluated, but the consideration be given 

to the real abuses and true issues in the Code. 

Bankruptcy is a delicate and complicated process. It is more than 

simply a two-party dispute between the debtor on one side and the 

creditors on the other. Rather, multiple parties and constituents, 

often with varying different interests, play significant roles in the 

process. Therefore, any reform must take into consideration not 

only the interests of the particular party seeking redress but also 

the impact on the system as a whole. The legislation suffers from 

such infirmities. 

First the majority of the hearings thus far have focused on the 

consumer rather than the business issues. The business issues 

must be subject to the same attention before enacted in a tenuous 

economy. 

Second, the final bill that ultimately evolved from the conference 

committee had numerous amendments, many of which had not 

been subject to prior comments, hearings or careful analysis. They 

also catered to many special interests at the expense of the general 

body of unsecured creditors as a whole. For example, the provisions 

for real estate lessors who already have enhancements in the Code 

are further enhanced at the expense of the debtor and the unsecured creditors. Moreover, lien stripping in Chapter 13 cases is severely limited by the bill in direct contravention of the stated purpose for reform, being greater repayment to unsecured creditors. It 

84

has been estimated that unsecured creditors will lose in distributions from the passage of this provision as much as 100 million annually. 

Third, despite the numerous amendments proffered as part of the 

legislation, real issues that currently confront the system haven’t 

been considered, such as forum non-conveniens and standing to 

pursue causes of action. It bears note that throughout the last 6 

years that the legislation has been pending in Congress, it has 

been consistently criticized by every major bankruptcy organization, bankruptcy professionals, judges, trustees and scholars. The 

bill, however, does contain some noncontroversial and much-needed 

reforms that, if passed, would enhance and provide significant benefits to the overall system. 

For example, Chapter 12, cross-border provisions, new judgeships, DePrizio, Claremont, Catapult, all of these provisions have 

been held hostage as placeholders with the hope that pressure for 

enactment of these individual reforms would ultimately fuel passage of the entire bill. Much acknowledged needed reforms have 

been held at bay. Instead, Congress has repeatedly reintroduced 

the same basic legislation rather than reevaluating the need for reform; and if so, on what basis. 

Reform was first suggested in 1994. At that time we were facing 

unprecedented growth and prosperity. The individual filings had 

reached and all-time high, and Congress perceived that many individual debtors were abusing the system and that filings would rise. 

While filings may have incrementally increased since that time, it 

has not been due to merely seeking to escape one’s obligations, but 

real financial need, such as divorce, medical bills, loss of jobs, 9/

11, displaced military personnel, corporate downsizing and uncertainty regarding the state of the bankruptcy law. Today’s Washington Post cover story focuses on the financial hardship particularly being faced by displaced military personnel. 

Relying simply on the number of filings as a barometer is dangerous and misleading. The statistics in 2002 suggests that business bankruptcies declined. Nevertheless, it is indisputable it was 

the year of the large business bankruptcy. The country has still not 

begun to face all the repercussions that are likely to result from 

such large filings. Therefore, prior to enacting legislation that will 

create sweeping changes at a time when financial relief is likely to 

be needed the most, Congress must pause, take a step back and 

carefully analyze and reexamine that which it has proposed against 

the current realities and needs for the system of creditors and debtors alike. 

Thank you very much, and I would be pleased to answer questions. 

Mr. CANNON. Thank you, Ms. Miller. 

[The prepared statement of Ms. Miller follows:]

PREPARED STATEMENT OF JUDITH GREENSTONE MILLER

Good afternoon. Thank you for inviting me to testify before the Subcommittee on 

behalf of the Commercial Law League of America (‘‘League’’). The League, founded 

in 1895, is the nation’s oldest creditors’ rights organization, comprised of attorneys 

and other experts in credit and finance, actively engaged in the fields of bankruptcy, 

insolvency, reorganization and commercial law. The League has long been associated with creditor interests, while at the same time seeking fair, equitable and effiVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
85

cient administration of bankruptcy cases for all parties in interest. The Bankruptcy 

Section, comprised of 1,200 bankruptcy professionals (lawyers, judges and other 

workout professionals) from across the country, represents divergent interests in 

bankruptcy cases. The League has testified on numerous occasions and submitted 

position papers before Congress as experts in the bankruptcy and reorganization 

fields. 

The League has consistently advocated that bankruptcy laws must strike a balance that is both fundamentally fair and practically sound for all parties involved. 

The bankruptcy legislation that has been proposed the last three Congresses, and 

most recently introduced in almost the identical form last Thursday, February 27, 

2003, is neither fair nor practically sound. It is unfortunate that the legislation was 

again introduced prior to the conclusion and findings of this Subcommittee, because, 

in essence, the premise, fears and conditions underlying the original perceived need 

for bankruptcy reform six years ago do not exist. Moreover, the changes that have 

occurred over the last eighteen months, such as the changed economy, the terrorist 

events of 9-11 and the mega-bankruptcy filings, such as Enron, WorldCom, K-Mart 

and the major airlines, suggest that not only the need for bankruptcy reform be reviewed and analyzed, but moreover, that consideration be given to the real abuses 

and true issues that need to be addressed as the Bankruptcy Code (‘‘Code’’) currently exists. 

Bankruptcy is a delicate and complicated process. It is more than simply a twoparty dispute between the debtor on the one side, and creditors on the other. Rather, multiple parties and constituents, often with vastly different interests and goals, 

play significant roles in the overall process. Therefore, any reform effort must take 

into consideration not only the interests of the particular party seeking redress, but 

also the overall impact on the bankruptcy estate as a whole. This legislation suffers 

from such infirmities. 

First, the majority of the hearings devoted to the legislation have focused on consumer, rather than business issues. The business issues must be subject to the same 

attention before enacted in a tenuous economy. 

Second, the final bill that ultimately evolved from the conference committee had 

numerous amendments, many of which have not been subject to prior comment, 

hearings or careful analysis regarding their impact and consequences on the system. 

Many of these amendments, like the overall bill, cater to special interests, thereby 

enhancing the right of a few at the expense of the general body of creditors of the 

estate. For example, lessors of non-residential real property currently have extensive power over debtor lessees. Despite the protections already contained in the 

Code, the legislation seeks to enhance their rights in a manner that is likely to deprive the debtor and the unsecured creditors of valuable assets of the estate needed 

to reorganize or alternatively create large administrative priority claims from a 

pressured, and subsequently determined to be an improvident assumption. Lien 

stripping in Chapter 13 cases is also severely limited by the bill in direct contravention of the stated purpose for reform—greater repayment to unsecured creditors. 

Losses to unsecured creditors from passage of this proposal have been estimated to 

approach $100 million annually. The League has repeatedly objected to legislation 

that favors special limited interests as being fundamentally unfair and inappropriate to the creditors of the estate. 

Third, despite the numerous amendments proffered as part of the legislation, real 

issues that currently confront the system haven’t even been considered. For example, the issue of forum non-conveniens, governing the location where a bankruptcy 

case should be filed so as not to negatively impact the creditors, is not addressed 

in the bill. The administration of a bankruptcy case is often dealt with in a location 

that has minimal contacts to the operation and assets of the debtor. 

Moreover, in a number of the large national corporate scandals and mega-filings, 

many of which were precipitated by fraudulent conduct, one of the major assets that 

creditors’ committees seek to pursue in order to provide recovery and a distribution 

to the creditors is causes of action against the officers, directors, principals and affiliates, i.e., the ‘‘insiders.’’ Generally, the actions allege breaches of fiduciary duties, 

transfers of assets on the eve of bankruptcy and other improper and/or fraudulent 

conduct. Standing to pursue such avoidance actions on behalf of the creditors has 

been seriously questioned by some courts recently based on rules of statutory construction that preclude a court from looking at legislative intent and history. 

The Third Circuit Court of Appeals in Official Committee of Unsecured Creditors 

of Cybergenics Corp. v. Chinery (In re Cybergenics Corp.), 304 F.3d 316 (3rd Cir. 

2002), vacated, 310 F.3d 785 (3rd Cir. 2002), interpreted Section 1103(a) of the Code 

to preclude the creditors’ committee from pursuing avoidance actions based on its 

use of the phrase ‘‘the trustee may,’’ to imply a limitation of those parties-in-interest 

that may actually proceed to avoid impermissible transfers. In a number of inVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
86

stances, debtors and debtors-in-possession refuse or fail to act because it would require them to sue their own principals, officers, directors and affiliates to seek recovery of assets improperly transferred to them prior to or on the eve of bankruptcy. 

While the initial decision of the court has been vacated for rehearing and determination by the entire Third Circuit, this holding, if upheld, will make it increasingly difficult for creditors to seek recovery of valuable assets. 

It bears note that throughout the last six years that the legislation has been 

pending in Congress, it has been consistently criticized by every major bankruptcy 

organization, bankruptcy professionals and scholars. The bill, however, does contain 

some noncontroversial and much needed reforms, that if passed, would enhance and 

provide significant benefits to the overall system. Such things, for example as, the 

permanent extension of Chapter 12, adoption of the international cross-border provisions contained in chapter 15 of the bill, the addition of thirty-six (36) new bankruptcy judgeships, cure and elimination of the DePrizio problem in Sections 547 and 

550 of the Code, elimination of the Claremont nonmonetary penalty cure under Section 365(d)(2) of the Code, remediation and clarification of the ability to assign and 

assume personal services contracts and other nonassignable interests under Section 

365(c) in response to Catapult, rules governing appellate procedure of bankruptcy 

cases and trustee liability and removal provisions, have been held hostage, as 

placeholders, with the hope that pressure for enactment of these individual reforms 

would ultimately fuel passage of the entire bill. Much acknowledged and needed reforms have been held at bay. Instead, Congress has repeatedly reintroduced the 

same basic legislation, rather than reevaluating the need for reform legislation, and 

if so, on what basis. 

Congress first suggested the need to review and address bankruptcy reform as 

part of the 1994 amendments to the Code through the creation of the National 

Bankruptcy Review Commission (‘‘Commission’’). Even before the Commission 

issued its final report, Congress introduced the legislation. At that time, we were 

facing unprecedented growth and prosperity in the country. At the same time, individual bankruptcy filings had reached an all time high. Congress perceived that 

many individual debtors were abusing the system and that filings would continue 

to rise. While filings may have incrementally increased since that time, the individual filings, in large part, have been attributable to real needs triggering financial 

relief (i.e., divorce, medical bills, loss of jobs, 9-11, displaced military personnel, corporate downsizing and uncertainty that the current pending legislation and its predecessors would be enacted into law by Congress), not merely to escape one’s obligations. 

Relying simply on the number of filings as a barometer is dangerous and misleading. For example, while the statistics of filings for 2002 suggest that business 

bankruptcies declined, it is indisputable, based on the number of mega-filings during that time, that 2002 will go down as the year of large business bankruptcies. 

The country still has not even begun to face all of the repercussions that are likely 

to result from these large filings, such as closure of facilities, decreased work forces 

and elimination of retirement benefits. The economic climate of the country has also 

changed dramatically since bankruptcy reform was first envisioned. The reticence 

of the country to expend resources in the wake of 9-11 and the continued fears of 

war and terrorism suggest that recovery is going to be slow at best. Therefore, prior 

to enacting legislation that will create sweeping changes, at a time when financial 

relief is likely to be needed the most, Congress must pause, take a step back, and 

carefully analyze and reexamine that which it has proposed against the current realities and needs of the system for debtors and creditors alike. 

Thank you for the opportunity to address the Subcommittee this afternoon. In addition to the filing of this written testimony, the League has also submitted a written position paper setting forth its critical issues for consideration by Congress.

87


CLLA1.eps
88


CLLA2.eps
89


CLLA3.eps
90


CLLA5.eps
91


CLLA6.eps
92


CLLA7.eps
93


CLLA8.eps
94


CLLA9.eps
95


CLLA10.eps
96


CLLA11.eps
97


CLLA12.eps
98


CLLA13.eps
99


CLLA14.eps
100


CLLA15.eps
101


CLLA16.eps
102


CLLA17.eps
103


CLLA18.eps
104


CLLA19.eps
105


CLLA20.eps
106


CLLA21.eps
107


CLLA22.eps
108


CLLA23.eps
109


CLLA24.eps
110


CLLA25.eps
111


CLLA26.eps
112


CLLA27.eps
113


CLLA28.eps
114


CLLA29.eps
115


CLLA30X.eps
116

Mr. CANNON. We would like to welcome our friend from Michigan 

Mr. Conyers. 

Thank you, Ms. Miller, and, Mr. Wallace, if you would like to 

proceed, we will give you 5 minutes now. 

STATEMENT OF GEORGE WALLACE, ESQUIRE, OF COUNSEL, 

ECKERT SEAMANS CHERIN & MELLOT, LLC, WASHINGTON, 

DC, ON BEHALF OF THE COALITION FOR RESPONSIBLE 

BANKRUPTCY LAWS 

Mr. WALLACE. Thank you, Chairman Cannon, Congressman 

Watt, Members of the Committee. Thank you for this opportunity 

to express my views on consumer bankruptcy in H.R. 975. My 

name is George Wallace. I think you are familiar with me. I speak 

today on behalf of the Coalition for Responsible Bankruptcies, a 

broad coalition of consumer creditors, including banks, credit 

unions, savings institutions, retailers, mortgage companies, sales finance companies and diversified financial services providers. 

The coalition strongly supports H.R. 975 because it will take significant steps toward reforming today’s consumer bankruptcy laws. 

Those laws are fundamentally flawed, and the need for reform is 

urgent. Today over 1.5 million or 1.6 million consumer debtors file 

for bankruptcy relief every year. That rate of filing has more than 

doubled over the last decade and gone up more than six times since 

the last sweeping revision to our bankruptcy laws occurred in 1978. 

Some predicted that by the end of 2003, filings could be as high as 

1.7 million or more. 

There are too many additional Americans each year filing for 

bankruptcy to permit continued toleration of this fundamentally 

flawed system. Particularly in this flat economy with higher levels 

of unemployment than in the past, it is important that consumer 

bankruptcy relief be reserved for those who need and deserve it. 

Our economy can ill afford a situation in which bill-paying American consumers and debtors who deserve bankruptcy relief pay 

higher prices because others have run up large debts and then 

used bankruptcy irresponsibly and often dishonestly. The consumer 

bankruptcy system continues to reward those who lie under oath 

about their income and expenses and assets. Despite laudable new 

efforts by the United States Trustee Program, bankruptcy continues to allow debtors and unfortunately sometimes their counsel 

to abuse the system. 

In many places even when a debtor fully discloses that he or she 

has the ability to repay a significant portion of unsecured debts, a 

full discharge is granted, no questions asked. The amounts involved are huge. We estimate that each year over $44 billion of 

debt is discharged in consumer bankruptcy cases. These losses are 

recovered in the price American consumers pay for credit, an average of $400 for each American household as an estimate. We also 

estimate that upwards of 4- through 5 billion of those losses could 

be saved by the means test reforms in the bill. Yet without legislative intervention this year, the situation can only worsen. As more 

Americans recognize that their neighbors are using bankruptcy, 

they, too, are tempted to file bankruptcy and take the easy way 

out. Corruption and abuse breeds more corruption and abuse. 

117

At the same time, it is important to remember that this legislation is clearly the result of extensive bipartisan compromise over 

more than 6 years. Reform legislation was originally introduced in 

the 105th Congress and then in the 106th Congress and then in 

the 107th Congress. In each Congress extensive revisions were 

made both in Committee and in conference. The bill has significantly changed. The bill before you today improves controls on 

abuse of bankruptcy law by preserving all that is best about our 

current bankruptcy system. Honest debtors can obtain bankruptcy 

relief no matter what their income, expenses or assets as long as 

they honestly disclose the economic facts about their economic situation. 

The improvements to bankruptcy law in H.R. 975 are badly needed, and we support this legislation because of these provisions. 

Most importantly the bill takes steps to require responsible use of 

bankruptcy’s broad, sweeping remedies. In general the bill provides 

that if a debtor’s case is abusive, the court is to dismiss the debtor’s 

case to obtain bankruptcy relief. This flexible general standard will 

be applied in a wide range of cases as demanded to thwart the ingenuity of those who would wrongfully or fraudulently try to use 

the bankruptcy system. 

To assist enforcement of this general standard, the bill’s most 

widely recognized innovation, the means test, creates a presumption that the Chapter 7 bankruptcy cases of debtors with incomes 

over the State median will be dismissed if they can afford to repay 

a significant part of those debts over a period of 3 to 5 years based 

on monthly budgets set under court supervision. We expect this innovation alone to provide those responsible to enforce the honesty 

of the bankruptcy program with significant new tools to carry out 

their duties. 

Significantly the bill also aids the United States Trustee Program in its enforcement efforts, increases funding for that program 

significantly, provides for more information about debtors’ affairs to 

be provided and checks up on that information with a program of 

audits. 

Some of the most important provisions of the bill significantly 

also improve the position of women and children who are dependent upon child support, alimony and marital property settlements 

to receive the money they are entitled to. Today consumer bankruptcy can be used to delay or evade those important family obligations. The bill closes the loopholes the unscrupulous seek to use to 

delay or evade paying child support or alimony. 

Balanced reform is needed to put our consumer bankruptcy laws 

back on track. After years of negotiation and compromise, this bill 

has found a middle ground. We urge you to support it. 

Thank you very much, Mr. Chairman, and Members of the Committee. I will be glad to answer questions later on. 

Mr. CANNON. We congratulate you, Mr. Wallace, for ending exactly on time. 

Mr. WALLACE. Sometimes you do it enough times, and you get it 

right. 

Mr. CANNON. Thank you. 

[The prepared statement of Mr. Wallace follows:]

118

1 Estimates on the number of debtors with ability to pay who obtain Chapter 7 relief and the 

amount they could have paid ranges from a low of 30,000 debtors a year and approximately $1.2 

billion per year based on a study by the debtor oriented American Bankruptcy Institute to approximately 100,000 per year and nearly $4–5 billion based on studies by Ernst & Young. 

PREPARED STATEMENT OF GEORGE J. WALLACE

Chairman Cannon, Congressman Watt and Members of the Committee, thank you 

for this opportunity to express my views on consumer bankruptcy and H.R. 975, The 

Bankruptcy Abuse Prevention and Consumer Protection Act of 2003. 

My name is George Wallace. I am a lawyer practicing in Washington, D.C., and 

have been associated with efforts to reform our bankruptcy laws since the 105th 

Congress, when a reform bill was first introduced. 

I speak today on behalf of The Coalition for Responsible Bankruptcy Laws, a 

broad coalition of consumer creditors, including banks, credit unions, savings institutions, retailers, mortgage companies, sales finance companies and diversified financial services providers. 

The Coalition strongly supports H.R. 975 because it will take significant steps toward reforming today’s consumer bankruptcy laws. Those laws are fundamentally 

flawed and the need for reform is urgent. Today, over 1.5 million consumer debtors 

file for bankruptcy relief. That rate of filing has more than doubled over the last 

decade, and gone up more than six times since the last sweeping revision to our 

bankruptcy laws occurred in 1978. Some predict that by end of 2003, filings could 

be as high as 1.7 million. 

There are too many additional Americans each year filing for bankruptcy to permit continued toleration of this fundamentally flawed system. Particularly in this 

flat economy with higher levels of unemployment than in the past, it is important 

that consumer bankruptcy relief be reserved to those who need and deserve it. Our 

economy can ill afford a situation in which bill paying American consumers and 

debtors who deserve bankruptcy relief pay higher prices because others have run 

up large debts, and then used bankruptcy irresponsibly and often dishonestly. The 

consumer bankruptcy system continues to reward those who lie, under oath, about 

their income and expenses and their assets. Despite laudable new efforts from the 

United States Trustee program, bankruptcy continues to allow debtors—and unfortunately, sometimes, their counsel—to abuse the system. In many places, even when 

a debtor fully discloses that he or she has ability to repay a significant portion of 

unsecured debts, a full discharge is granted, no questions asked. 

The amounts involved are huge. We estimate that each year over $44 billion of 

debt is discharged in consumer bankruptcy cases. These losses are recovered in the 

price American consumers pay for credit, an average of $400 for each American 

household. We also estimate that upwards of $4 through 5 billion of these losses 

could be saved with the means test reforms in the bill.1 Yet without legislative 

intervention this year, the situation can only worsen. As more Americans recognize 

that their neighbors are using bankruptcy, they too are tempted to file bankruptcy 

and take the easy way out. Corruption and abuse breeds more corruption and abuse. 

At the same time, it is important to remember that this legislation is clearly the 

result of extensive bipartisan compromise over more than six years. Reform legislation was originally introduced in the 105th Congress. After extensive compromise 

and revision, the bill sponsored by Congressmen Gekas, Boucher and many others 

cleared Conference Committee and passed the House with over 300 votes, but it ran 

out of time in the Senate. 

At the beginning of the 106th Congress, Congressman Gekas reintroduced as H.R. 

833 the Conference Report from the 105th Congress. H.R. 833 was extensively 

amended in Committee and on the floor. It eventually passed the House with a 

large bipartisan majority. On the Senate side, Senator Grassley introduced a version 

of the Conference Report as S. 625. Likewise after extensive amendment, the Senate 

passed its bill with extremely strong bipartisan support. H.R. 833 and S. 625, however, had significant differences. After extensive compromises between House and 

Senate negotiated from February until the end of July, 2000, a compromise bill was 

worked out which became H.R. 2415 in the last days of the 106th Congress. It 

passed the House by voice vote and the Senate with a veto-proof majority. However, 

President Clinton pocket vetoed the legislation and the 106th Congress ended without enactment. 

In the 107th Congress, the bill was reintroduced in essentially the form it had 

passed both houses. As H.R. 333, it passed the House early in the Session without 

significant changes. A companion bill, S. 420, passed the Senate shortly thereafter 

with the addition of a substantial number of amendments. Among other changes, 

the means test of section 102 was significantly altered, a cap was placed on the 

119

homestead exemption, and the discharge of debts arising from liability for obstruction of access to those selling lawful goods or services, popularly known as the 

‘‘Schumer amendment’’ was added. Assembling the Conference and working out differences took much of the rest of the Session. The Conference Report issued in July 

of 2002 contained a number of compromises, including a homestead provision that 

significantly reforms this area of bankruptcy law and a version of the Schumer 

amendment. 

The bill before you today is the Conference Report compromise from the 106th 

Congress without the Schumer amendment. The bill improves controls on abusive 

use of bankruptcy law while preserving all that is best about our present bankruptcy system. Honest debtors can obtain bankruptcy relief no matter what their 

income, expenses, or assets, as long as they honestly disclose the economic facts 

about their situation. The bill also imposes extensive additional disclosures and regulation on the consumer credit industry. For example, the bill makes major changes 

to the credit card disclosure rules under the Truth in Lending Act, requiring extensive new disclosures on credit card solicitations and monthly statements. It also creates extensive, new regulation for reaffirmation agreements. This additional regulation will not come cheap to the American consumer. Creditor experience complying 

with a California law which has similar credit card solicitation provisions indicates 

that the additional compliance cost will be significant—costs passed on to consumers 

in higher credit prices. 

Whatever doubts we may have about whether the additional regulation of the 

credit industry will bring commensurate benefits to American consumers, we are 

confident that the improvements to consumer bankruptcy law are badly needed, and 

we support this legislation because of these provisions. Most importantly, the bill 

takes steps to require responsible use of bankruptcy’s broad sweeping remedies. In 

general, the bill provides that if a debtor’s case is abusive, the court is to dismiss 

the debtor’s effort to obtain bankruptcy relief. This flexible general standard will be 

applied in a wide range of cases as demanded to thwart the ingenuity of those who 

would wrongfully or fraudulently try to use the bankruptcy system. To assist enforcement of this general standard, the bill’s most widely recognized innovation, the 

means test, creates a presumption that the Chapter 7 bankruptcy cases of debtors 

with incomes over the State median will be dismissed if they can afford to repay 

a significant part of those debts over a period of 3 to 5 years, based on a monthly 

budget set under court supervision. We expect this innovation, alone, to provide 

those responsible to enforce the honesty of the bankruptcy program with significant 

new tools to carry out their duties. Significantly, the bill aids the United States 

Trustee program in its enforcement efforts, increases funding for that program significantly, provides for more information about debtor’s affairs to be provided in 

each case, and checks up on that information with a program of audits. 

Some of the most important provisions of the bill significantly improve the position of women and children who are dependent upon child support, alimony, and 

marital property settlements to receive the money they are entitled to. Today, consumer bankruptcy can be used to delay or evade these important family obligations. 

The bill closes the loopholes the unscrupulous seek to use to delay or evade paying 

child support or alimony. 

At a time when the States are increasingly pressed for revenue, the bill includes 

major provisions to improve and streamline the collection of state taxes. It also includes the homestead exemption compromise worked out in Conference in the 107th 

Congress. 

In addition, the bill imposes new forms of consumer protection on both the bankruptcy process and on consumer credit and recognizes the importance of low priced 

secured credit to Americans by improving the ability of the creditor to either get 

repaid or get the security back promptly. In an important change we believe will 

better help debtors having debt difficulty to understand their options, the bill requires every individual debtor to go to a brief consumer credit counseling session 

either before filing or shortly after filing bankruptcy, and gives debtors who do file 

for bankruptcy new, informative disclosures about the bankruptcy process, what 

they can expect from it, and how much and when they are going to have to pay 

for it. 

Of course, there are those who oppose this legislation. As someone has said, a true 

compromise satisfies no one, and this legislation is clearly the product of hard 

fought compromise. Many continue to think this legislation does not go far enough. 

Others claim it goes too far. 

The complaints of the critics should not obscure what is happening here. The critics are those with a vested interest in the system staying exactly as it is. They do 

not want reform. They do not care if the bankruptcy system remains a place where 

fraud and abuse are every day events. The American people, on the other hand, recVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
120

ognize all too clearly that bankruptcy is being used by some people to evade their 

responsibilities. In repeated polls of the public, they respond that bankruptcy reform 

is needed and necessary to limit bankruptcy to those who need it. 

Make no mistake about the point I am making. We support the availability of consumer bankruptcy relief. The bill before you today would continue to make available 

to every American, on demand, the ability to go into bankruptcy, obtain the benefit 

of the automatic stay and a discharge for unsecured debts, and emerge with a ‘‘fresh 

start’’. Nothing in this bill will prevent a person from getting prompt, effective and 

compassionate bankruptcy relief. Those who claim the contrary are simply uninformed. 

But reform is urgently needed. Today’s present bankruptcy system is really two 

systems.

• There is the system for those who are overburdened with debt and are responsibly using the bankruptcy system. This is the vast majority of bankruptcy 

users. By our estimates, it is 80% to 90%, although some would suggest that 

this estimate is too high.

• There is another group which uses the bankruptcy system irresponsibly or 

fraudulently. These people usually have a great deal of debt. But they also have 

significant income or assets and use the bankruptcy system to evade their personal responsibilities. We estimate this group to be in the 10% to 20% range 

of bankruptcy users, although, again, some suggest a higher percentage is in 

fact the case.

In other words, bankruptcy is a good social program which provides benefits to 

Americans, but which is sometimes used inappropriately. We do not tolerate abuse 

of other social programs such as Medicare and welfare, nor should we tolerate abuse 

of bankruptcy. 

How can you misuse the bankruptcy system? Let me give you a few examples.

• Do you owe $40,000 of unsecured debt but have a comfortably steady income 

so that you could repay it over a few years, perhaps with the help of credit 

counseling? You can file for chapter 7 relief and discharge that $40,000 without 

repaying anything to your creditors. Enjoy your comfortably steady income.

The legislation addresses this misuse with the ‘‘ability to pay’’ provisions of section 

102 as long as the debtor’s income is in excess of the State median income level.

• Owe a $40,000 property settlement payment to an ex-wife? Or perhaps as 

part of that property settlement you are supposed to pay the mortgage every 

month on the house she occupies with the children. File chapter 7. If she doesn’t 

hire a lawyer and file an action to declare the obligation you owe her nondischargeable, it will be discharged. If she does, dismiss the chapter 7 and file 

a chapter 13. You can discharge property settlement obligations in a chapter 13 

proceeding.

This misuse is addressed by making property settlement agreement obligations nondischargeable. No longer will the bankruptcy court be able to undo the results of 

domestic relations court.

• Have you defrauded your creditors? Use chapter 13 to discharge the debts you 

incurred by fraud.

The bill stops this abuse. If you incurred debt by fraud, it is not discharged.

• Do you owe significant nondischargeable debts (e.g., fraud or tax debts) and 

have you recently purchased a new car on credit? Use chapter 13 and its 

cramdown provisions to take money from your secured creditors and use it to 

pay your nondischargeable debts.

Under the legislation, if you purchased a car on credit within 2 years of filing and 

go into chapter 13, you have to pay for the car the same way your neighbor has 

to. The same result occurs if you purchase a large screen TV one year before filing. 

No longer can you take money from your secured creditor and use it to pay other 

bills, or in some instances, to cover your own living expenses—while you keep the car. Each of the examples I have given of what you can do may be perfectly legal strategies under today’s Bankruptcy Code, and they all illustrate what is wrong. We 

have created a form of debt relief that rightly takes care of those who need it, but 

fails to identify and treat differently those who do not, or who are using it irresponsibly. How could this have happened? Briefly, in a well meaning attempt to help 

those in debt trouble, a statutory scheme was enacted in 1978 which generously provides relief to those who need it—but also to those who do not deserve it. UnfortuVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
121

nately, bill paying Americans pay for that unnecessary largess in higher credit 

prices and reduced credit availability. 

Critics of bankruptcy reform efforts have claimed that the provisions in the legislation aimed at those with ability to pay are excessively harsh on debtors who need 

and deserve bankruptcy relief. For example, they claim it is an unacceptable burden 

on those seeking relief to require them to attend a brief credit counseling session 

in which they will learn how credit counseling might help them. They similarly 

claim that requiring that debtors receive some brief additional disclosures to explain 

the bankruptcy process and their relationship with their attorney also imposes an 

unacceptable burden on obtaining relief. Nothing could be farther from the truth. 

Exposure to credit counseling before filing bankruptcy can save some debtors from 

the damage bankruptcy does to their credit rating. It introduces them to budgeting, 

which experts tell us is often the problem. Other critics urge that the educational 

features of the program won’t work, or are too expensive. To be sure, there are questions about how to best develop an effective program as there always are. But the 

bill contains flexible standards which give the United States Trustee Program the 

ability to structure and refine an effective program over time. It also provides for 

a pilot project which will enable the Program to evaluate and experiment with innovative approaches to carrying out this mission. The need for debtor education and 

improved financial literacy is great if bankruptcy is to be truly rehabilitative. The 

catalyst of this legislation has resulted in much constructive work already being 

done on how to best structure the educational process, and it will continue to have 

that effect. Given the need, there can be no doubt that the counseling and educational programs included in the bill are worth the effort and cost. 

Balanced reform is needed to put our consumer bankruptcy laws back on track. 

After years of negotiation and compromise, the bill has found a middle ground. We 

urge you to support it. 

In closing, let me stress again the significance of this legislation to close loopholes 

that today permit debtors to delay or evade child support, alimony and property settlement obligations. I have heard no one who says that these provisions are not 

strong enough. And they are needed to make sure that these important social responsibilities are not evaded in bankruptcy court. Bankruptcy court should not be 

a court of second resort after domestic relations court where you can undo your obligations to your children and society. 

Thank you for the opportunity to address the Committee.

Mr. CANNON. In deference to your schedule, Mr. Coble, we would 

like to give you the first opportunity to ask questions. 

Mr. COBLE. Thank you, Mr. Chairman. I will be brief. 

And the Chairman imposes the red light rule against us as well, 

folks. I will try to get through in 5 minutes. 

Mr. Friedman, what are some examples of how debtors can abuse 

the present consumer bankruptcy system? 

Mr. FRIEDMAN. Congressman, there are a number of areas which 

the provisions of this bill will help strengthen and enforce for us. 

Examples are abuse of serial filings, where people file over and 

over again to stop a foreclosure on a home, and filings where people run up credit cards in what we call credit card bustout scams, 

and they therefore run up the credit cards, pay the credit cards 

down with insufficient funds. The minute that the funds are posted 

to the account, they would then max out the credit cards again and 

thus break out—double the limit on their credit cards and abuse 

the bankruptcy system. These are just a couple of the examples of 

abuse in the system. 

Mr. COBLE. Thank you, sir. 

Has section 707(b) been a success or a failure? If you can say one 

or the other? 

Mr. FRIEDMAN. I would say section 707(b) has been a tool that 

we have used so far, but it will be enhanced by the provisions of 

this bill such that it will set forth a uniform standard that can be 

applied consistently throughout the United States, and that 

strength is needed. 

122

Mr. COBLE. Thank you, sir. 

Ms. Miller, now, your organization purports to represent a creditor’s perspective, but yet Mr. Wallace’s organization, the Coalition 

for Responsible Bankruptcy Laws, U.S. Chamber of Commerce, the 

Financial Services Roundtable, the National Association of Credit 

Managers, the National Retailers Federation, the Bond Market Association, et cetera, they are some of this legislation’s most avid 

supporters. You are on the other side of that. Both of you, you and 

these groups I just mentioned, purportedly speak for creditors. And 

I realize reasonable people can disagree, but illuminate on that for 

me. 

Ms. MILLER. Let me suggest there are a number—the Commercial Law League of America is not the only organization that has 

opposed the legislation because it doesn’t protect creditors’ rights. 

Every major bankruptcy organization that has honed in on—has 

been criticizing this legislation since it was first enacted, number 

one. 

Number two, a number of the provisions in the bill ultimately deprive unsecured creditors of maximizing a distribution from the estate. One of those provisions that I alluded to is the lien-stripping 

provision. While Mr. Wallace and I may disagree on the overall 

perspective of what the bill does, I don’t think anybody has contended that unsecured creditors aren’t going to suffer if the lienstripping provision is enacted. Why should secured creditors be 

treated any differently as a result of the filing of the bankruptcy 

than they would be treated outside of bankruptcy? Why should unsecured creditors not receive a distribution from the estate? 

Mr. COBLE. Well, bankruptcy organizations ofttimes include debtors’ attorneys. Would that be perhaps one reason why the disparity 

in the other groups I mentioned? 

Ms. MILLER. The Commercial Law League represents both debtor 

interests and creditor interests, but we have always pushed forward for fair and balanced legislation. We are primarily a creditors’ rights organization, and having looked at the bill and analyzed it 

over the last 6 years, it simply doesn’t protect the interests of the 

general unsecured creditors. 

Mr. COBLE. Ms. Beckwith, if you or Mr. Wallace want to weigh 

in before my time runs out, either of you. 

Mr. WALLACE. I would say the Commercial Law League is an association of attorneys who refer business amongst one another. It 

is an old organization. I think that they are concerned about protecting how they make their money. They have made their money 

in bankruptcy for a number of years, and they are concerned about 

continuing to do that. I understand that they have general interests and that they are well-intentioned, but I think in this interest 

they are somewhat deflected from those concerns and focusing 

more upon how the system now works for them rather than how 

it should work for all of us. 

Mr. COBLE. Thank you, sir. 

Mr. Chairman, thank you for letting me do the—I will go back 

and forth to my meeting and hopefully will return. 

Mr. CANNON. Thank you, Mr. Coble. 

The Chair now recognizes Mr. Watt for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

123

Mr. Friedman, if a person falls below the means test in this bill, 

will there be any substantial changes to that person’s processing of 

his bankruptcy? 

Mr. FRIEDMAN. I don’t believe there would be any substantial 

change in the processing, because the provisions of the means test 

with regard to qualification only kick in above a certain level, 

which I believe is the median level. 

Mr. WATT. So if people fall below the means test and are abusing 

the system now, they will continue to have the same rules apply 

to them, and they cannot continue to abuse the system? 

Mr. FRIEDMAN. No. I wouldn’t say that. I—— Mr. WATT. Is there anything in this bill that will make circumstances different for somebody who falls below the means test? 

Mr. FRIEDMAN. The income portion of the means test. But the 

change that this bill makes to that section of the Code also has a 

provision for people who otherwise abuse the system, and we currently look at those people. We would continue to look at those people with regard to the abuses in the system they may have. 

Mr. WATT. So bankruptcy judges and trustees then will continue 

to have some discretion, same kind of discretion they have under 

the current system; is what you are saying? 

Mr. FRIEDMAN. What I am saying is that the current system has 

a standard which is not as uniformly applicable as I believe the enhancements would be under this legislation. 

Mr. WATT. Ms. Beckwith—well, let me just go back to Mr. Friedman for a second. Are you at all concerned that this whole means 

test approach creates two categories of bankruptcy courts in the 

country now if this bill passes, or is that not a concern to you? 

Mr. FRIEDMAN. Congressman, the means test as written in the 

current legislation provides an additional tool for identifying——

Mr. WATT. Can you answer yes or no and then explain? Are you 

concerned that after this bill passes, if it passes in its current form, 

there will, in effect, be two different bankruptcy courts? 

Mr. FRIEDMAN. No. 

Mr. WATT. All right. Ms. Beckwith, you testified that 256,000 

credit union members in 2002—— Ms. BECKWITH. Yes, sir. 

Mr. WATT [continuing]. Filed bankruptcy? 

Ms. BECKWITH. Yes, sir. 

Mr. WATT. Has CUNA or the credit union association done any 

analysis to determine what percentage of those 256,000 people fall 

above the means test and what percentage falls below the means 

test? 

Ms. BECKWITH. Not to my knowledge, sir. 

Mr. WATT. So if there is no substantial difference in the way 

their bankruptcies are processed for people who fall below the 

means test, you don’t think that would be a relevant consideration 

in your evaluation of this bill? 

Ms. BECKWITH. Sir, I think it will protect those who fall below 

the means test. If I did not feel that way, I would not support this 

bill. It is important that the people who have a real crisis in their 

life are protected. 

Mr. WATT. The credit card example that you talked about in your 

testimony, is there anything in this bill or otherwise that would imVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6601 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
124

pose upon lenders any additional responsibilities to assure that this 

couple that you described that was going around just taking the 

credit line—had any greater responsibility in evaluating whether a 

borrower was doing that? 

Ms. BECKWITH. Sir, at the time we extended the credit to these 

two members, there was no way we could legally deny them credit. 

You know, they met all of the credit tests. 

Mr. WATT. I am saying—and I don’t like to refer to people in my 

family or myself, but I consistently get credit card offers extending 

substantial credit. Are other people applying the same type of criteria that you are applying? 

Ms. BECKWITH. Sir, I believe the educational opportunities in this 

bill over time will educate the people of this Nation to where they 

will be able to handle their financial obligations better and be less 

apt to fall into that trap. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. CANNON. Thank you, Mr. Watt. 

Mr. Chabot, would you like to take 5 minutes? 

Mr. CHABOT. Yes. Thank you, Mr. Chairman. 

We have been through this issue so many times before, I don’t 

know if I will take the full 5 minutes. It has been a long road, and 

I sympathize with many of the panel members and many of the 

folks that are here today who have been fighting this battle for 

such a long time. I am cautiously optimistic that we will be successful this time. I hope that we don’t get sidetracked by issues 

which are only marginally related to abortion and probably 

shouldn’t have been brought up in the first place, but hopefully we 

can get it done this time. 

And whenever I think about this issue, I think about how the 

American people literally are paying more for products because 

some of their fellow citizens aren’t living up to their obligations, 

and bankruptcy should be there for people who really need it, for 

people who have sustained a particular trauma in their family. 

Perhaps there has been a loss of job or even a death in the family 

sometimes, or pretty substantial medical bills. I mean, there are 

people who legitimately need to file bankruptcy, but unfortunately, 

some of our fellow citizens have found a way to scam the system 

and run up credit cards and basically leave the rest of us holding 

the bag. And hopefully—I mean, this bill will not eliminate that 

completely, but it will certainly be a step in the right direction, and 

that is why I think it would be good for the country, good for the 

economy, good for personal responsibility if we can get the job done 

this time. And I hope that we are successful. 

Just a couple of questions. What are the most common ways—

what are the—Ms. Beckwith, you mentioned the Hawaiian wedding 

and the $20,000 as I think a particularly egregious example of 

somebody scamming the system. I mean, that is certainly not what 

bankruptcy was intended to be used for, but if you are—Mr. Wallace or Ms. Beckwith or any of the panel members would like to 

give us any other examples of things that they have seen happen 

or particular ways that people do avoid their debts and use bankruptcy in a way that it was not intended to be used. So I would 

be happy to hear from any of the panel members. 

125

Ms. BECKWITH. Sir, a lot of times people—you can look at their 

credit reports and you can see where they have loaded up at furniture stores and things, and then you look at the credit report, 

and then you notice where they got a mortgage about a year earlier. They have decorated their house at the expense of my other 

members. 

At other times we have seen people—when we looked at their 

credit reports—who have taken expensive vacations and this sort 

of stuff and then again file bankruptcy. There was a credit union in Minnesota who had a $30,000 loss. 

This is in my written testimony. And they received his—he moved 

to Florida, and his hometown paper received an article with a picture of him in front of his new power boat talking about his multiple golf memberships and what fun he was having fishing. 

And the people of the credit union in that town paid a great loss, 

you know, I mean it was just that they paid for his retirement, and 

I think that is wrong. That is abusive. 

Mr. CHABOT. Thank you. 

Mr. WALLACE. Let me give you two examples of situations that 

the bill would address and that are important to address. For example, it is—one of the things that bankruptcy can be used for is 

to get rid of property settlement obligations that arise out of a marital breakup, and you can use chapter 7 and a combination of chapter 7 and chapter 13 to get rid of those obligations today. It is a 

combination of substantive and procedural laws the way you do it. 

There is even a book that shows you how to do that. That is one 

of the examples of the kinds of things that would be blocked by this 

bill. Marital property provisions of the bill block that. 

The second way is that if you have committed fraud today and 

become liable for debt, there is a way in which you can use chapter 

13 today to discharge the fraudulent debt, the debt that arises from 

fraud, and that is also blocked by the bill. 

These are important changes. There is one other thing I wanted 

to mention in terms of what Congressman Watt was mentioning 

before. The standard for the 707(b) today is substantial abuse. You 

have to prove that there is substantial abuse and there is a presumption that the debtor has not abused. However, under the bill 

the standard is changed to abuse. You have to prove that the debtor has engaged in abuse, which is a lower standard, and the presumption in favor of the debtor is taken away. This will enable the 

United States Trustee’s Office and trustees to handle the cases that 

Congressman Watt was raising, which I would agree are abusive 

and need to be dealt with in the situation where the debtor is 

below the median income. 

Ms. MILLER. I would also like to make a comment, Congressman 

Chabot, and also to respond to something that Congressman Watt 

indicated. 

Mr. CHABOT. It is actually pronounced ‘‘Chabot.’’

Ms. MILLER. I am sorry. I apologize. 

Mr. CHABOT. As long as you don’t use the French pronunciation, ‘‘Chabot.’’ Mr. CANNON. Wait a minute, Steve. We don’t call you ‘‘Chabot’’ anymore? I might just remind the witness that the time has run, 

but if you would like to finish up your answer. 

126

Ms. MILLER. Thank you very much. While there are educational 

provisions that are geared at educating debtors in terms of securing credit and incurring financial obligations under the bill, there 

are no equivalent provisions with regard to policing the manner in 

which credit cards are issued or credit card applications arrive at 

people’s homes. I can’t tell you personally how many I have received, or how many my minor children received. 

In fact, one of my colleagues that is a member of the Commercial 

Law League got a new dog and the dog—he applied for a dog tag 

for the dog. And lo and behold, after the dog tag arrived, a credit 

card application arrived for the dog. Was the dog going to put his 

paw on it? 

Mr. CANNON. Mr. Nadler, I think you are next. 

Mr. NADLER. Thank you, Mr. Chairman. Let me say first to Mr. 

Friedman, I would request that if you haven’t done so, would you 

prepare a section-by-section analysis and give it to the Committee 

of all the new duties that the U.S. Trustees and the private trustees will have if this bill passes and itemize the cost of each new 

function, such as audit, storage of additional paperwork and additional notices? 

I am especially interested in the section 102(c) of the bill which 

requires the U.S. Trustee to do a lot of things. I think we would 

be very interested in seeing exactly what new public costs this bill 

imposes in this time of fiscal stringency, great tax cuts and no provision for any public expenditure. So I would be interested in your 

analysis if you could get that to the Committee after today. 

Thank you. 

Ms. Beckwith, the one provision we have been told in negotiations is the deal breaker for the credit unions and you mentioned 

this, as one of the three requirements, is the title and reaffirmation 

agreements. The bill provides that the court may reject a reaffirmation agreement if it would cause undue hardship, which is astonishingly defined in the bill as requiring payments in excess of the 

debtor’s disposable income. Even more astonishingly, credit unions 

are exempt from this pathetic restriction on reaffirmations. 

Can you justify stripping a bankruptcy court of the ability to reject under any circumstances a reaffirmation agreement that would 

require a debtor to pay more than his total disposable income? Is 

this really a deal breaker for the credit unions or would you approve of the Committee placing the credit unions under the same 

rules that in the bill apply to all other creditors seeking reaffirmation? 

Ms. BECKWITH. That was a lot of questions. 

Mr. NADLER. Well, I will summarize it. Do you really think that 

credit unions should be exempt from the requirement that a reaffirmation cannot impose the obligation to repay more than total disposable income on the debtor? Yes or no. 

Ms. BECKWITH. No, I don’t. I don’t think the credit union would 

ask that. 

Mr. NADLER. Well, you have asked. So you would be perfectly 

willing to have the bill amended so that the credit unions would 

be subject to this provision of the bill as is every other creditor? 

Ms. BECKWITH. Sir, it is in the members best interest most of the 

time that they be able to reaffirm. 

127

Mr. NADLER. That it is not my question. I don’t have a lot of 

time. Please answer my question, not a question I didn’t ask. 

Would be willing to have the bill amended so that credit unions 

would be subject to the same provision in the bill as every other 

creditor, that they cannot do a reaffirmation of such a nature that 

the creditor has to pay—the debtor has to pay back more than his 

total disposable income? 

Ms. BECKWITH. Sir, I would have to have some research done on 

that and get back to you. 

Mr. NADLER. I think that that answer says all I need to say 

about the honesty of this presentation. 

Let me ask Mr. Wallace. This bill imposes substantial costs on 

the Government to investigate and audit debtors. Why should the 

public funds be used to do the due diligence for major banks and 

other creditors when they are unwilling to do the investigation 

themselves or to seek more substantial information about the borrower before making extension of credit? We know that they are 

flooding people who don’t have an ability to repay a lot of money 

with credit card applications. And what this bill suggests is that 

the Government should pay for their due diligence. I assume you 

are aware that a creditor may examine the debtor at the 341 meeting. So why are—why should the Government assume this—the 

duty to investigate and audit the debtors? Why isn’t this the responsibility of the banks and the credit card issuers before they 

issue the credit card? 

Mr. WALLACE. This is a bank—the bankruptcy is a governmental 

program, Congressman. And it seems to me that the Government 

has a responsibility of keeping a governmental program honest. 

Under some circumstances I guess it is possible for a creditor to 

participate in a 341 proceeding and they do do so. However, they 

do not have either the power of the Government nor the sweep of 

the Government’s inquiry in order to try to find out and ferret out 

all fraud. They are determined by profit and expense. 

Mr. NADLER. I understand. 

Mr. WALLACE. Whereas what the Government is concerned about 

is honesty. 

Mr. NADLER. Sir, I understand. But are you aware that a creditor 

has the right under section 343 of the Code, in rule 2004 to conduct 

an extensive examination under penalty of perjury of the debtor’s 

financial circumstances, including the production of documents? 

Mr. WALLACE. Yes, I have done these things and they do take a 

fair amount of time and I bill my clients for them. They are expensive. 

Mr. NADLER. So why should the Government obtain—why should 

the Government have to spend public money to do the job that the 

creditors should be doing? 

Mr. WALLACE. Because it is a governmental program, sir. Because it is not the job of the creditor. It is the job of the Government, sir, to conduct a fair, honest and clean bankruptcy system. 

Mr. NADLER. So you are turning the Government into a credit——

Mr. CANNON. The gentleman’s time has expired, but I will do a 

second round if you would like to do that. 

Mr. NADLER. Thank you. 

128

Mr. CANNON. Mr. Delahunt, would you like to take 5 minutes? 

Mr. DELAHUNT. Yes. Thank you, Mr. Chairman. I think it was 

you, Mr. Wallace, and it is good to see you again. I have missed 

you through the years and it is good to know that you are back. 

I hope you come back in 2 years. 

Mr. WALLACE. I am sure you do and I do not. 

Mr. DELAHUNT. You know, Mr. Friedman, you talk about—I 

mean we heard Mr. Wallace talk about people lying under oath, 

and you talked about enhanced tools. I mean the reality is the kind 

of fraud and abuse that you reference is susceptible to criminal investigations. Is that a fair and accurate statement? 

Mr. FRIEDMAN. The question was, is it susceptible to criminal 

prosecution? 

Mr. DELAHUNT. Absolutely. 

Mr. FRIEDMAN. It is in some cases. 

Mr. DELAHUNT. In many cases presumably. In my former career 

I was a district attorney and you know if, Ms. Beckwith, you would 

come to my office with that case I would have assigned the matter 

to my white collar crime fraud squad and they would have been out 

and hopefully that would have, you know, sent a loud and very 

clear message and hopefully resulted in some deterrence. But I am 

really interested in the response by Ms. Miller to Mr. Wallace’s 

suggestion that those lawyers that make up your League are really 

doing this out of self-interest. 

Ms. MILLER. I am glad you asked that question. 

Mr. DELAHUNT. I bet you are. Can I just—let me just follow that 

up. And let’s just really get, you know, let’s cut to the quick here, 

so to speak. I understand your major concern is that unsecured 

creditors are being displaced here. Their chance at getting their 

fair share is reduced. Am I correct on that? 

Ms. MILLER. Absolutely. 

Mr. DELAHUNT. Now, I don’t hear you singing any great songs of 

sympathy for debtors. I mean, at least I haven’t heard it to date. 

Now I am sure in your heart of hearts you are concerned about the 

poor debtor. But can you tell us in very simple terms so that all 

the Members of the Committee can understand what the import of 

this bill is in terms of under secured creditors? You referred to the 

lean stripping provisions. Why didn’t you explain to us in very simple terms that we can all understand? Who is making out in this 

bill? Maybe that is the bottom line. No pun intended. 

Ms. MILLER. No, you have asked me a number of questions and 

I guess I would like to first respond to the fact that somehow because my pockets are being padded that influences my testimony 

here today. I have been a member of the League since 1993. I have 

been involved in the academic pursuit of fair and balanced legislation for the League since 1994 and have chaired the League’s legislative effort in that regard. I am pleased to report to the Committee that I haven’t had any—I don’t get referrals from the 

League. I am involved there because it is a wonderful network for 

connections and it has been a wonderful opportunity for me to be 

able to get involved in commenting on the legislation. 

So Mr. Wallace’s comments really don’t bear out the proof, number one. Number two, with regard to the lean stripping, normally 

the way that the Bankruptcy Code is worded today, under section 

129

506 of the Code, a secured creditor’s claim is limited with respect 

to the secured portion based on the value of its collateral. Therefore, if you have bought a piece of property that at the time was 

worth $100 and at the time that the bankruptcy was filed the property is only worth $50, the secured creditor has a claim for $50 secured and the deficiency is treated as an unsecured claim. Under 

the proposed bill it seeks to change that process in the case of car 

loans that have been outstanding for 21⁄2 years, or with regard to 

any purchases that have been made within a year of bankruptcy, 

such that the full amount owed to the secured creditor at that time 

regardless of the value of the property, is treated as a fully secured 

claim, even though outside of bankruptcy if there were a default 

and the secured creditor sought to foreclose under Revised Article 

9 of the Uniform Commercial Code it would be limited only to the 

value of its collateral and the deficiency would still be treated as 

an unsecured claim. 

Mr. DELAHUNT. So who is making out in this? You talked about 

the car loans. The secured creditors are making out to the disadvantage of unsecured creditors? 

Ms. MILLER. Absolutely. 

Mr. DELAHUNT. If I could just indulge you for 30 seconds more, 

Mr. Chairman. 

Mr. CANNON. Without objection. 

Mr. DELAHUNT. And is there anything in this bill that elevates 

an unsecured creditor to the status of a secured creditor? 

Ms. MILLER. Not that I am aware of. But I might even point out 

further there are some unsecured creditors. I mean you have to 

look at some of the special interests that are being taken care of 

in the bill. For example, if you can indulge me, the real estate lessors currently under section 365 are entitled to get paid currently 

for all their obligations as they become due. Under the bill it enhances the protections for the real estate lessors such that there 

is a limited period of time by which the debtor must decide to assume or reject a commercial real estate lease. And at that point if 

they haven’t taken the action the lessor can withhold the right for 

them to have any additional time. If the debtor makes the wrong 

decision and either decides wrong, doesn’t assume the lease and 

loses a valuable asset and can’t reorganize, ultimately the creditors, the unsecured creditors have lost the option of being able to 

maximize the going concern value of those assets for the benefit of 

everybody. On the other hand, if the debtor makes the wrong decision and assumes that lease improvidently and then finds out it 

really shouldn’t have done so, then it has created the huge administrative expense claim for the estate, thereby depriving unsecured 

creditors of money. As long as the landlord is getting paid currently 

there is no abuse that needs to be addressed. 

Mr. CANNON. Thank you, Ms. Miller. Presumably we have saved 

the Subcommittee 5 minutes on the second round of questioning, 

Mr. Delahunt. The Chair recognizes the gentleman from Michigan, 

Mr. Conyers, if you would like to. 

Mr. CONYERS. Thank you, Mr. Chairman. I want to welcome Attorney Miller to these proceedings. I am happy to have her testimony on behalf of the organization, Commercial Law League of 

America, and I am astounded by the fact that there is a general 

130

approval of these witnesses before this Committee, perhaps save 

one, about means testing, which in our last hearing was determined by some to be arbitrary, unworkable and bureaucratic, that 

the means testing provisions will harm low income, middle income 

people, and will have adverse impact on women, children, minorities, seniors as well as victims of crime. 

Did any of that, Ms. Beckwith, come to your attention in examining the measure that you support here this afternoon? 

Ms. BECKWITH. Sir, I believe that the means testing will help 

those who indeed have a critical crisis in their life and need to file 

for bankruptcy, and it also does move up the position of child support and alimony and, you know, pushes down the attorney’s fees. 

So it is going to help in several ways. 

Mr. CONYERS. Did you find anything, Ms.—Attorney Miller, 

about means testing that you might want to reiterate or bring to 

the Committee’s attention this afternoon? 

Ms. MILLER. Attached to—a number of position papers have been 

submitted over the term that the bills have been pending in Congress. The League has been opposed to means testing because it is 

difficult to apply. It is subject to manipulation. It is not necessarily 

applied in the standard fashion. It relies on IRS guidelines which 

are not necessarily easily understood or necessarily were drafted in 

a way with bankruptcy in mind. It also—depending upon the circumstance in which you are, it sometimes penalizes those that—for 

instance, that are not paying, that are current with their child support obligations as against those that are not current. It also seems 

to have differing impacts depending upon whether you own a house 

versus you lease premises. It just doesn’t seem to work. And moreover, as long as the bill has been pending I am not aware of any 

retrospective analysis of how the means test would have worked or 

if it would have worked and how much it even would have been 

applied to. And it seems as though over the number of years that 

the legislation has been pending at a minimum some kind of studied analysis would be done before we go forward with the proposed 

means test that has been criticized so significantly. 

Mr. CONYERS. Now, Ms. Beckwith, again, please, have you 

been—your organization been disturbed by the great number of 

credit cards that leaflet America, everybody and their dog gets one, 

kids in college, people with no credit, bad credit? Is this a problem 

that may have come to your attention? 

Ms. BECKWITH. Sir, the parts of this bill that deal with member 

education are very, very important to me. In my own credit union 

we do not give a college student a credit card above $700 without 

a parents cosigning with them. We feel it is wrong to do that. But 

again, education of people is what is important. They have to be 

financially educated and we are a firm supporter of the NEFE program, which is the National Endowment for Financial Education, 

and are involved in that in South Carolina to a great degree. 

Mr. CONYERS. Gee, I am happy to hear that. I don’t know what 

the college kids are going to do with that education as these credit 

cards are mailed directly to the university or they are waiting for 

them at their house. And a lot of adults, not even kids, get caught 

up in this. Don’t you think we got a little bit more of a problem? 

131

Couldn’t it be possible that we could get some restraint on the credit card companies? 

Ms. BECKWITH. Sir, again, I think it is a matter of personal responsibility and in our credit union we also have a program called 

Young Trust, which is for members between 16 and 25 years old, 

where we have special programs for them where they learn about 

credit. They learn about the loan process and what we actually look 

at and how important retaining a good credit rating is. They also 

learn about debt to income ratios and, you know, several other 

things that we help them with in order to educate them. In America we need more financial education, sir. 

Mr. CONYERS. Thank you. 

Mr. CANNON. Thank you, Mr. Conyers. Mr. Friedman, Mr. Watt 

asked you earlier about whether this bill would create two bankruptcy courts and you seem to have had a longer answer which you 

then gave a one-word response to. Would you like to expand on 

that for a moment? 

Mr. FRIEDMAN. Certainly, Mr. Chairman. The provisions which 

Congressman Watt were discussing and questioning me about provide a test which is much more focused in ferreting out cases where 

there is possibly fraud and abuse and in giving us a uniform standard that could be applied coast to coast for determining what is or 

is not abusive under the Code as opposed to the current legislation 

that we act under. 

Mr. CANNON. Great. Thank you. 

Ms. Miller, Mr. Delahunt raised the issue of responding to Mr. 

Wallace’s particular statements and then asked several questions. 

If you would like to take a few moments to respond with particularity, I would be pleased to have you do that. 

Ms. MILLER. I think I had already responded, and quite frankly 

I was somewhat shocked at his suggestion. The League has repeatedly been asked to appear before Congress as experts on bankruptcy. We have been repeatedly contacted with regard to pending 

legislation to submit position papers. We have always taken a fair 

and balanced approach, both with regard to debtors and creditors, 

because we feel that is imperative in the type of multi-constituent 

process in which you are involved. 

Mr. CANNON. You don’t want to deal with the specifics or would 

you like to deal with those specific statements that you made? 

Ms. MILLER. I guess I am—can you redefine to me the specifics 

that you were——

Mr. CANNON. No. Mr. Wallace, would you like to repeat those? 

Mr. WALLACE. Well, what I was pointing out and without any 

personal animus or anything, I just pointed out that the Commercial Law League is a referral organization. I mean it is part of the 

bankruptcy establishment. It is concerned principally with the improvement of bankruptcy law for the purposes of its members and 

its members make money in the bankruptcy system. That is all I 

suggested. 

Ms. MILLER. I think any organization that is here has—that people belong to memberships in order to be able to network and ultimately market who they are and what they do in order to secure 

business. I think that Mr. Wallace represents a number of people 

132

that are interested in pursuing a similar set of goals for their members. 

Mr. CANNON. Thank you. You have in fact testified in the past 

and I—as you were giving your opening statement, you talked 

about times being different right now. And I am wondering, obviously we have had more bankruptcies, so we are moving up and 

it is not like we are declining in the number of bankruptcies. Were 

you trying to express a concern in your opening statement that if 

we do this bankruptcy bill that we will somehow turn consumers 

off and that would be bad for the economy? 

Ms. MILLER. No. What I was suggesting is that the economy is 

in a much more serious and fragile condition today than it was 

when bankruptcy reform was first considered and since the last 

time that I appeared before this Committee and that there are numerous causes for the increase in bankruptcy, but one cannot necessarily assume it is due to abuse. I think we all know there is 

some abuse out there and there is fraud out there and that it 

should be addressed. But the increase alone is not due to abuse 

and fraud, and that presumption is what is erroneous and in view 

of the changed economy, being slowed down and all of the repercussions that we haven’t begun to see from the large bankruptcies, 

where there are going to be corporate shutdowns, where people are 

losing their jobs, how many people do we hear where corporations 

are downsizing and people are losing their jobs? 

Mr. CANNON. Let me just—I only have one more minute. I want 

to you to flesh this out. But it seems to me that in the past you 

have testified in favor of harsher provisions than in this bill in this 

particular. I am just wondering, do you believe that the number of 

bankruptcies—there are some underlying changes in society that is 

being masked; in other words, we have an increase in bankruptcies 

because of short-term problems with the economy instead of a fundamental turnaround in the economy or a turnaround in the bankruptcy understanding and proceedings? 

Ms. MILLER. I think that the economy is much more fragile, and 

as a result Congress has to take pause and really consider what 

the impact of passing this legislation will be and whether or not 

it really addresses——

Mr. CANNON. Pardon me. Just so I can do this before—I see the 

distinction between abuses and a fragile economy. But when you 

are talking about a fragile economy, are you saying that this 

Subommittee should defer these rules until the economy is more robust? 

Ms. MILLER. I am not necessarily saying that they should defer. 

I think that they should carefully consider whether or not this is 

the appropriate vehicle to address bankruptcy reform. 

Mr. CANNON. Thank you. We are going to do a second round of 

questioning. I think that—may I just have an indication of who 

would like to do a second round? Okay. 

Mr. Watt, do you want to then take 5 minutes? 

Mr. WATT. Thank you, Mr. Chairman. I want to go back to this 

issue that Mr. Friedman and now Mr. Wallace has addressed because I still am concerned that we are setting up two separate systems of bankruptcy here and I think that is bad public policy. I 

133

confess that I am one of the few people that is out here expressing 

this concern, but I just think it is very bad public policy. 

Now, as I understand where we are now, the standard is abuse, 

as Mr. Wallace has pointed out to us, is substantial abuse, and 

under the new bill we are going to abuse being the standard. Is 

that correct? 

Mr. WALLACE. That is correct. 

Mr. WATT. But under the existing law judges have the right to 

determine what is substantial abuse and, as I understand it, under 

the new law judges will only be able to determine what is abuse 

for people who fall below the means test. Is that correct? 

Mr. WALLACE. I don’t think I would agree with that characterization quite. The standard is whether or not there is abuse. If you 

are above the State median income then there is a presumption 

that you have abused the system; i.e., that there is abuse. 

Mr. WATT. Okay, And if you are below it there is a presumption 

that you have not? 

Mr. WALLACE. No. There is no presumption if you are below. 

There is just nothing. It is just the standard of abuse. 

Mr. WATT. So you are saying that if you are above it you presume that you have; if you are below it there is no presumption 

at all? 

Mr. WALLACE. That is correct. 

Mr. WATT. And that is not a presumption that you have not? 

Mr. WALLACE. That is correct, sir, yes, because—yes. That is correct. I think that is right. There are a lot of double negatives in 

that, but I believe that that is correct. 

Mr. WATT. And now, Mr. Friedman, you say that the standards 

for these new standards are going to give you a uniform national 

standard to apply. That is what you said in response to somebody’s 

question. I can’t remember whose it was. But those standards that 

you are talking about are standards that will be applicable only for 

people above the means test. Isn’t that right? 

Mr. FRIEDMAN. I don’t believe that that is true, Congressman. 

What 707(b) in the draft legislation does is set forth objective 

standards, specific objective standards. 

Mr. WATT. For people above the means test? 

Mr. FRIEDMAN. It sets forth objective—— Mr. WATT. For people above the means test? 

Mr. FRIEDMAN. The only thing that the means test does is set 

forth objective standards by which the presumption is thought of 

one way or another. It doesn’t mean the people below the means 

test are not subject to having their case dismissed because they 

abuse the system and it doesn’t mean that those above the means 

test are subject to having their cases dismissed unilaterally because they were above it. It creates a presumption. 

Mr. WATT. And that presumption directs you either into one form 

of bankruptcy or another form of bankruptcy, is that correct? 

Mr. FRIEDMAN. That is not the way I understand the statute. The 

presumption sets forth a determination, at which point if you were 

above the presumption the debtor would have the burden if a motion were filed to dismiss the case of substantiating that it is not 

abuse for them to get the granting of relief. But it is all within the 

same court and the same context and the same statute. 

134

Mr. WATT. And what happens if you are below the means test? 

Mr. FRIEDMAN. Then if someone files a motion to dismiss your 

case it is upon the burden of the filing party objecting. 

Mr. WATT. And who makes that determination of whether there 

is abuse or not? 

Mr. FRIEDMAN. I don’t think it is a determination of whether 

there is an abuse. The application of the standard to the United 

States Trustee Program would be that the United States Trustee 

Program perform a certification. 

Mr. WATT. So you are saying there is no determination made of 

whether there is an abuse if you fall below the means test? 

Mr. FRIEDMAN. There is only—there are determinations made 

under the section 707(b). If the median income is above the standard——

Mr. WATT. I am asking about people who fall below the means 

test. Is there a determination of whether there is abuse or not? 

Mr. FRIEDMAN. Well, absolutely. Our program currently——

Mr. WATT. And who make that determination? 

Mr. FRIEDMAN. The United States Trustee Program for one reviews a lot of chapter 7 cases. 

Mr. WATT. Who has the ultimate responsibility for making the 

determination? 

Mr. FRIEDMAN. Well, the court. 

Mr. WATT. The court makes that determination? 

Mr. FRIEDMAN. That’s right. 

Mr. WATT. And they make it without the benefit of any kind of 

presumption, whereas if you are above the means test there is a 

set of arbitrary rules that say you have got to overcome this presumption otherwise you go to one court or the—one kind of bankruptcy or another kind of bankruptcy. Isn’t that right? 

Mr. FRIEDMAN. I wouldn’t agree with that characterization, Congressman. 

Mr. WATT. Okay. 

Mr. CANNON. Thank you. 

Mr. Chabot, would you like to take 5 minutes? 

Mr. CHABOT. Yes. Thank you, Mr. Chairman. 

Mr. Wallace, in light of your prior experience as a faculty advisor 

for a low income legal clinic, I believe in Iowa it was, what is your 

response to those who say that these bankruptcy reforms, especially with regards to the need-based provisions would, if enacted, 

hurt poor people? 

Mr. WALLACE. Well, I don’t think they will hurt poor people in 

any significant way at all. The reforms in fact were rather finally 

tailored so as to catch those people who are dishonest and, i.e., 

abusing the system and not to effect those people who are honestly 

trying to obtain relief. That is the whole purpose of the presumption that was mentioned before and the standard of abuse in 

707(b). I don’t see how you can argue that a debtor who hasn’t 

abused the system is going to be significantly limited in terms of 

their relief. There are some other provisions in the Bankruptcy Reform Act that apply regardless of whether or not you are above or 

below the means system. But each one of those is tailored to stop 

a specific form of abuse. So I think that the simple answer is that 

if you are poor and you are honest and you are trying to get relief 

135

honestly and making full disclosure of your assets liabilities, incomes and expenses, you will get relief just as you do today. And 

that is the whole point of the bill, is to preserve that relief, and 

that is why this bill will not have any significant effect upon those 

who deserve bankruptcy relief in this economy in its flat period. 

Mr. CHABOT. Thank you. 

Ms. Miller, will you agree that the current pending legislation is, 

for lack of a better term, less harsh on debtors than the bills that 

we considered back in the 105th and 106th Congresses? 

Ms. MILLER. It would be hard for me to conclude that because 

I still think it is harsh on debtors. It is the means test that is 

harsh. 

Mr. CHABOT. Well, I said less harsh. So I mean——

Ms. MILLER. It is hard for me to calculate whether or not it is 

less or more. I still—I think that the League’s general position is 

that it does contain harsh provisions and that is going to have a 

negative impact on relief being available for debtors, both those 

that are businesses as well as those that are individuals. And if 

this bill were to pass, you are likely to see an immediate spike in 

filings as a result of people trying to fall under the current code, 

which is much less harsh than the proposed legislation has been. 

Mr. CHABOT. Would any of the other panel members like to comment on whether this legislation is less harsh than the previous 

bills that we considered? 

Mr. WALLACE. Well, a number of significant changes have been 

made since the bill was introduced in the 105th Congress. The 

means test has been substantially amended to protect—for example, I will just give you a specific example. If you have a special 

expense because of home heating oil costs that is specifically taken 

account of in the means test although the IRS guidelines did not 

specifically deal with that. These kinds of changes have been made 

over time step by step in compromise after compromise so as to 

moderate the effect of the means test, and I think that it is very 

hard to argue today that the means test is in any way harsh. I 

didn’t think it was harsh when it was originally introduced and 

certainly isn’t now. 

Mr. CHABOT. Mr. Wallace, let me ask you another question. Ms. 

Miller had commented on a dog, for example, getting an application 

for a credit card. How would you respond to those who blame the 

credit card industry for the increase in consumer bankruptcy filings? 

Mr. WALLACE. Well, I think that what is happening here in 

terms of consumer bankruptcy filings is at least two or three things 

are all interacting. First of all, there is the shift in the economy. 

Second of all, the bankruptcy profession, each time Congress gets 

close to passing this, encourages their clients to file and we get another bump. But in some very sophisticated research that was done 

by professors at Wharton and University of Chicago, research was 

done as to whether or not debtor willingness to use the bankruptcy 

system so as to discharge debt when they had the ability to pay 

was increasing, and they found that was increasing. We have also 

done studies which were introduced and presented to Congress in 

the 105th and 106th Congress which showed this was happening. 

136

So I think we have a number of things that are happening here. 

Insofar as credit card solicitation, in this country of course we encourage companies to market their products. Sometimes people resist that marketing. I think that Ms. Beckwith’s response is probably the best one. In a free economy where you are trying to allow 

companies on the one hand to market their products and on the 

other hand you want people to be able to protect themselves, education is the best way to deal with that. We all resent sometimes 

what those mailings are, but nonetheless the short answer is that 

can be handled best by education. 

Mr. CHABOT. Thank you. 

Mr. CANNON. Thank you. 

Mr. Nadler, would you like 5 minutes? 

Mr. NADLER. Thank you. Mr. Wallace, in your testimony you 

stated that the bill’s critics are those with a vested interest in the 

system staying exactly as it is, close quote. Your client you describe 

as, quote, a broad coalition of consumer creditors, close quote. 

Could you please provide the Committee a list of your members so 

that the Committee can better assess whether they have any—

whether your clients have any particularized interest in tilting the 

Code in their favor against the interests of our creditors or the 

broader public policy goals of the Code? So I am just requesting you 

supply us with a list of those clients. Could you do that? 

Mr. WALLACE. I don’t know. I mean I will talk with the people 

at the Coalition, sir. 

Mr. NADLER. You don’t know if you can supply a list of the people on whose behalf you are testifying so that we can assess 

the——

Mr. WALLACE. I assume I can, sir. 

Mr. NADLER. Can you name some of them now? 

Mr. WALLACE. No, I can’t. 

Mr. NADLER. So right now you are a stealth witness? Thank you. 

Ms. Beckwith. But we look forward to that list. 

Ms. Beckwith, when I was talking to you last, you astonished me 

by saying that you couldn’t state whether you really would insist 

that a provision remain in the bill that exempted the credit union 

from the requirement that you can’t reaffirm agreement in such a 

way as to require the debtor to pay more than their total disposable income. I now request that you submit to the Committee as 

soon as possible a definitive answer. Do you insist on that unconscionable provision or do you not insist on that unconscionable provision? That will tell us frankly about the—how much we should 

pay attention to your testimony. 

[The material referred to follows:]

137


LetB1.eps
138


LetB2.eps
139


Green1.eps
140


Green2.eps
141


VCR.eps
142


CUJB.eps
143


Beck.eps
144


NAFCU.eps
145

Mr. NADLER. And, Mr. Wallace, coming back to you, according to 

a credit card industry funded study which you just quoted a moment ago that what you suggest by this bill, some of them done by 

Dr. Staten, the rates of discharge debt that might otherwise be 

paid are in the range of 25 percent, according to Dr. Staten’s testimony before this Committee in 1999. You dismissed the only nonindustry study commissioned by what you call the, quote, pro-consumer American Bankruptcy Institute, close quote, which found 

using the same data that it was only approximately 3 percent. Do 

you really believe first of all that the ABI, which is composed of 

bankruptcy professionals from all parts of the profession, including 

creditor counsel, is really pro-creditor because that would come as 

a shock to the creditor attorneys who are members and serve on 

the board? But secondly, are you aware that Dr. Staten, who testified before this Committee that it was 25 percent back in 1999 and 

whom you have quoted today, speaking on a panel on consumer 

debt sponsored by the FDIC last week, commented that the bill 

would have no effect on the number of bankruptcies and that it 

would at most move 5 percent of debtors from chapter 7 to chapter 

13? 

Mr. WALLACE. Actually, I exchanged e-mails with Mike Staten 

yesterday on this topic, and he pointed out that at the time that 

he said that he didn’t realize the bill was being introduced. He was 

unfamiliar with its provisions. 

Mr. NADLER. He has been working on this bill for the last 5 

years. It is the same bill as last year. 

Mr. WALLACE. He also pointed out that there are a number of 

provisions in the bill, a wide range of provisions in the bill and his 

opinion was addressed only to specific narrow provisions of the 

means test, and that if he was asked the question with regard to 

the whole bill, he would say that it would have a substantial impact. I am just giving you the answer that he gave me, sir. 

Mr. NADLER. Well, so you are saying he was only talking about 

the means test. The means test would only move 5 percent. Do you 

agree with that? 

Mr. WALLACE. I don’t know what his research is, sir. 

Mr. NADLER. I see. So, well, I can’t believe that Dr. Staten was 

saying he was unfamiliar with this bill, which is the same as last 

year, which he has been working on for the last at least 5 years. 

But let me come back to the question I asked a moment ago. Do 

you really think that the American Bankruptcy Institute is onesided, pro-debtor; is that your testimony? 

Mr. WALLACE. Well, I am a member of ABI and I think that in 

general that the ABI’s positions with regard to that study were decidedly pro-consumer; that is, they were pro-debtor. 

Mr. NADLER. Could Ms. Miller comment on that? Do you think 

the ABI has been fairly dispassionate on this question down the 

line or not? 

Ms. MILLER. I really couldn’t comment right now. I mean——

Mr. WALLACE. I mean one thing is that the study 

design—you mentioned two different studies. If you want to get 

into the details of the study design, the study design changed. ABI 

changed the study design and they got a different result even 

146

though they were using the same data. So I mean you have to be 

very careful about these things. 

Ms. MILLER. Congressman, I will note, however, that this week 

the ABI did submit a proposal to Congress setting forth a number 

of proposed amendments to this bill and criticizing substantially a 

number of the provisions that would be before Congress. 

Mr. NADLER. Thank you. 

Mr. CANNON. Thank you, Mr. Nadler. Did we accomplish your objective in the 30-second extension? 

Mr. DELAHUNT. No, Mr. Chairman, and since we are here in a 

nice relaxed environment—— Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. DELAHUNT. If you will indulge me. Mr. Wallace, I want to 

be clear. I mean, you are not refusing to disclose who the members 

are? 

Mr. WALLACE. Oh, no, sir. I just don’t know. I represent—I mean, 

American Financial Services Association is here today and they 

just told me that I can disclose their name. 

Mr. DELAHUNT. Sure. Oh, come on. Who else makes up the Coalition for Responsible Bankruptcy Laws? I mean, you are here. 

Mr. CONYERS. Would the gentleman yield? 

Mr. DELAHUNT. I will yield and I will ask for some time from 

you. 

Mr. CONYERS. Is this another secrecy deal here? I mean, I guess 

we have to assume—you are not under oath, sir, but you are testifying before a Congressional Committee and I am—I think you are 

aware of what that implies. 

Mr. WALLACE. I am trying to. 

Mr. CONYERS. I guess you are aware. 

Mr. WALLACE. I don’t know who. 

Mr. DELAHUNT. Reclaiming my time, you know, you have been 

here on three separate occasions, Mr. Wallace. Presumably, your 

fees are being paid by the Coalition for Responsible Bankruptcy 

Laws. Who are the constituent members of the Coalition for Responsible Bankruptcy Laws? 

Mr. WALLACE. I am a lawyer. I come here and I testify. I haven’t 

talked to anybody. I don’t know who is in the coalition at this particular moment. 

Mr. DELAHUNT. Well, you know, please. I mean, you know, it 

says right here on behalf of the Coalition. You are here testifying 

on behalf of the Coalition for Responsible Bankruptcy Laws. Is that 

a misstatement? 

Mr. WALLACE. No. The Coalition members are——

Mr. DELAHUNT. It is not. So then you don’t know who your client 

is. Is that what you are telling me? 

Mr. WALLACE. My client is the Coalition. You asked who the constituent members of the Coalition are. It is a large group of creditors. 

Mr. DELAHUNT. Give me five of them. 

Mr. WALLACE. Well, American Financial Services Association is 

here. The Credit Union National association is here. The National 

Retail Federation is here. The Bond Marketing Association I understand is a member of it. The American—the Landlords Association 

is here. 

147

Mr. DELAHUNT. That is fine. That is all we were looking for. You 

know, again, let me get back to—— Mr. WALLACE. I mean, I didn’t mean to be nonresponsive. 

Mr. DELAHUNT. Well, you were nonresponsive. 

Mr. WALLACE. You asked me a question and I don’t know what 

the answer was. 

Mr. DELAHUNT. You know, you are not here, I presumably out of 

the goodness—this isn’t an act of altruism on your part. Usually we 

know who is paying our fees, and I am sure you are being well paid 

and that is good. But, you know, to the American Bankruptcy Institute that study that you seem to question, it is my understanding 

that the results of that study were supported by the Executive Office of the United States Trustees, which conducted a similar effort 

that reached similar results, estimating that the passage of the 

conference report on H.R. 33 probably would have netted creditors 

no more than 3 percent of the $400 per household they claim to be 

losing. 

Now, is that a fair and accurate statement, Mr. Friedman? 

Mr. FRIEDMAN. Congressman, first of all, this is the anniversary 

of my 1 year at the Executive Office, and I must confess to you that 

I haven’t reviewed that study. 

Mr. DELAHUNT. Have you heard rumors about it while you have 

been in the, you know, while you were in the building? 

Mr. FRIEDMAN. I was not reclusive prior to my life here as Director. 

Mr. DELAHUNT. Okay. Well, I won’t press the issue with you. But we keep hearing these $400 and we are going to save interest rates 

and the cost to the taxpayer and you are familiar, you know, with 

the study that over a 10-year period Federal funds rates went 

down 13 percent to 3 percent and the cost of interest on credit 

cards went from 17.20 to 17.6. 

So let’s just be honest and candid. This is a bill by and for the 

credit card industry. That is the bottom line. And with that, I will 

yield back. 

Mr. CANNON. Thank heavens. It is amazing how quickly the 5 

minutes go when it is your own time and how long it takes some 

other times. 

Does the gentleman from Michigan wish 5 minutes? 

Mr. CONYERS. Thank you, Mr. Chairman. I want to thank the 

gentleman from Massachusetts, Mr. Delahunt, for getting us beyond this attempted cover-up. We have got the Vice President of 

the United States who refuses to tell us who he was meeting with. 

We are in court about that. We have foreign affairs expert, Mr.—— Mr. CANNON. If the gentleman would yield, I think we are actually out of court on that with no obligation to disclose. 

Mr. CONYERS. Oh, you made it out? Okay. Well, that is great, 

and I am glad you are relieved about that. Now, we also have 

Henry Kissinger, who declined a presidential appointment because 

he refused to reveal his client list and so he quit rather than do 

that. And now we have you, a distinguished lawyer who has been 

before the Committee on several previous occasions on the same 

subject that had a great deal of difficulty recalling a few of the 

names of the member organizations of the Coalition for Responsible 

Bankruptcy Laws, which of course leads a person like myself to 

148

wonder who else is in this organization that causes so much amnesia, which I will deal with at another time. 

But I want to turn to Ms. Beckwith and this is in all friendliness. 

Ms. Beckwith, you have indicated that you have people in your 

credit union, a couple, that did three, four, five, six, seven credit 

cards all at once and ripped off. How do you handle that now? 

Ms. BECKWITH. Congressman, at the time these people——

Mr. CONYERS. Well, you have got to answer real briefly and succinctly, please. 

Ms. BECKWITH. Yes, sir. We handle it by checking everyone’s 

creditworthiness just like we did with that couple. They were out 

to beat the system and they did. 

Mr. CONYERS. Well, in other words, has this happened since that 

couple that you reported? Has there been another occasion? 

Ms. BECKWITH. We have had other occasions where people have 

done something similar. 

Mr. CONYERS. In other words, you are telling the Committee that 

without this law, this bill that we are trying to turn into a law, 

your credit union—and I happen to be a strong supporter of all 

unions, not to mention credit unions. 

Ms. BECKWITH. Thank you, sir. 

Mr. CONYERS. You are telling us that you have no remedy unless 

you get this law, or are you telling me that? 

Ms. BECKWITH. Yes, sir, I am telling you that. We need this law 

desperately. The expenses to my credit union are growing year by 

year and it is affecting our bottom line. It is affecting——

Mr. CONYERS. Because people are doing what you—like the couple you related in your testimony? 

Ms. BECKWITH. Yes, sir. 

Mr. CONYERS. And if you don’t get this law you are going to still 

get ripped off some more? 

Ms. BECKWITH. Yes, sir, we are. 

Mr. CONYERS. Well, has it occurred to anybody in the union to 

track, keep track of the people you give credit to after you give 

them a credit card? 

Ms. BECKWITH. Yes, sir, we do. 

Mr. CONYERS. Well, if you do, that would show up, wouldn’t it, 

if they get other credit cards from somewhere else? 

Ms. BECKWITH. Yes, sir. We check our members as they come up 

for renewals every 2 years. 

Mr. CONYERS. Every 2 years. 

Ms. BECKWITH. Yes, sir. We are a small credit union. It is only 

11 of us. 

Mr. CONYERS. Eleven people working there? 

Ms. BECKWITH. Yes, sir. 

Mr. CONYERS. How many members? 

Ms. BECKWITH. Thirty-seven hundred. 

Mr. CONYERS. Well, it is funny to me that I haven’t been hearing 

this from most other unions. Of course you are testifying on behalf 

of a much larger organization. But it seems to me that there must 

be some way we can protect this other than passing a bill to help 

out the credit unions that may have somebody that wants to rip 

them off. I mean, can’t you check? What about banks? What about 

149

all other financial institutions that give out credit cards? Are they 

all subject to this same sort of policy as well? 

Ms. BECKWITH. Yes, sir. 

Mr. CONYERS. They are? 

Ms. BECKWITH. Yes, sir. 

Mr. CONYERS. Okay. Thank you very much. 

Mr. CANNON. Thank you, Mr. Conyers. We have had a unanimous request, consent request that we allow 2 days for Members 

of the Committee to submit written questions to the members of 

the panel and that the members of the panel be given an additional 

3 days to answer those questions. That would be questions would 

be due by Thursday at 5 and answers would be due next Wednesday at 5. Without objection, so ordered. 

Thank you. You know, I personally believe that the law is a great 

teacher and, in looking at what is going on, I think that we have 

a fundamental trend and, Ms. Miller, if we could get back to what 

we were talking about before, I would just like to have you help 

me make that distinction. Do we have a fundamental trend in society where people have learned that bankruptcy is an easy out, that 

you can con the system, you can actually make money by doing this 

credit card busting process and other processes and so we are increasing a very bad trend with bad law today, or do you believe 

that this increase in bankruptcy is temporary, that there is some 

turnaround in society’s mores and that when we get to a more substantial economy the bankruptcy filings will tail off or decline significantly? 

Ms. MILLER. It seems as though today focus has been on not only 

abuse but the egregious cases, and everybody can point to egregious cases that exist out there. But where are the studies on 

abuse and, as Congressman Delahunt pointed out, there are—— Mr. CANNON. Pardon me. 

Ms. MILLER [continuing]. There are other remedies. 

Mr. CANNON. But my question is different. Do you—I am not so 

much talking about abuse because that is part of the question. But 

are we seeing a tendency? We need to correct the law here and, Mr. 

Wallace, I would like to turn this to you in just a moment. But we 

need to correct the law because people have a fundamentally wrong 

idea, as Ms. Beckwith has been talking about, the educational process of credit and what the law means for people and their understanding of what to do. We have talked about the very painful results of taking out bankruptcy, which people apparently aren’t paying attention to. Is this a fundamental problem in your mind? 

The reason I am asking this is because you are talking about— you are taking today a very different position from what you have 

taken in the past on this issue. I am just trying to focus on whether your rationale for that is that the transformed society is what 

is causing increased bankruptcy as opposed to the—what you testified earlier about this. 

Ms. MILLER. I don’t believe my testimony before this Subcommittee previously is different than what it has been today. I 

think the economy is definitely different. Do I think that the increase is going to continue? I guess it depends on the strength of 

the economy. But, you know, all—we have been focusing so much 

on the consumer issues today and abuse regarding individual debtVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00153 Fmt 6633 Sfmt 6601 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
150

ors. There hasn’t been much attention paid to the business provisions. There hasn’t been much analysis done to the business provisions. Small businesses, family-owned businesses are facing financial crises. The bill makes it much harder for these businesses to 

reorganize. It takes away discretion from the court to be able to 

deal with them and ultimately doesn’t provide for a maximization 

of their assets for the benefit of creditors. It is—the increases—we 

all know there is some abuse out there. But the presumption that 

the increase is all due to abuse or that it is easy to file, I don’t 

think people easily make the decision to file generally. 

Ms. MILLER. I think they try every which way and go into denial 

not to file as long as they can, and it is only when they reach the 

end of the rope or they have no other alternative but to file—— Mr. CANNON. If I might suggest, knowing people who have filed 

bankruptcy and—I am not sure that is the case. I am not sure that 

people—I don’t think that this—two things you have here. One is 

abuse. The other one is filing stupidly and then finding out you 

have massive problems that your friends, who told you how cool it 

was to get out of the debt, didn’t tell you about after the fact. 

There are—the third category, of course, is what you are talking 

about, generally speaking, which is people who have problems, either health problems or they lose their job. There are a whole 

bunch of reasons why—those are the two biggest—why people need 

to take out bankruptcy. But the marginal people that are going to 

I think destroy their lives is the question I am asking you—and 

then maybe, Ms. Beckwith, if you want to respond to this as well—

is that not unfair to these people and shouldn’t the law be a harder 

guide, a clearer guide? 

Ms. MILLER. You are changing the law to be—or you are taking 

the pendulum and moving it from one extreme to the other to address the potential abuse by a few and making it harder for those 

that have honest problems, have lost their jobs, on the eve of a 

foreclosure are trying to file to save their home and to figure out 

how to reorganize they lives. It seems as though, rather than taking a hammer and moving the pendulum from one extreme to the 

other, that there is a halfway moderate approach that could be 

taken that is not making it more difficult for even those that are 

honest debtors out there who have filed legitimately and need financial relief. 

Mr. CANNON. I have very little time, and I don’t want to abuse 

the system. If you would like to just answer, Ms. Beckwith? 

Ms. BECKWITH. Mr. Chairman, there are some people out there 

who use bankruptcy as a financial planning tool; and there are no 

ifs, ands and buts about that. It happens. When we look at credit 

reports after a bankruptcy is filed, we can see this. Many of the 

bankruptcies we receive, the debtor is not even delinquent when we 

received the bankruptcy. 

Mr. CANNON. Thank you. I would like to thank the panel. This 

has been——

Mr. CONYERS. Mr. Chairman, aren’t others being heard besides 

yourself? 

Mr. CANNON. That was the—that was my second round. So we 

finished the second round, and I don’t think we—— Mr. CONYERS. Oh, you didn’t begin the second round? 

151

Mr. CANNON. No, I deferred. 

Mr. CONYERS. I see. Thank you very much, sir. 

Mr. CANNON. Thank you. 

I want to thank the panel. It has been long, a little bit contentious, but, hey, the system is robust. We appreciate your being here 

and your sharing your testimony with us, and if you could answer 

questions that are submitted to you quickly, we would appreciate 

that very much. Thank you. 

We are adjourned. 

[Whereupon, at 4:01 p.m., the Subcommittee was adjourned.] 

(153)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


LetA4.eps
154


100-2A.eps
155


100-2B.eps
156


100-2C.eps
157


100-2D.eps
158


100-2E.eps
159


100-3.eps
160


Fried1A.eps
161


Fried1B.eps
162


Fried1C.eps
163


Fried1D.eps
164


Fried1E.eps
165


Fried1F.eps
166


Fried1G.eps
167


Fried1H.eps
168


Fried1I.eps
169


Fried1J.eps
170


100-3B1.eps
171


100-3B2.eps
172


100-3B3.eps
173


LetA1.eps
174


100-5.eps
175


100-5A.eps
176


100-5B.eps
177


Beck1.eps
178


Beck2.eps
179


Beck3.eps
180


Beck4.eps
181


Beck5.eps
182


LetA2.eps
183


LetA3.eps
184


100-8.eps
185


100-8AX.eps
186


100-9A.eps
187


100-9B.eps
188


100-9C.eps
189


100-9D.eps
190


100-9E.eps
191


100-9F.eps
192


CLLA1A.eps
193


CLLA1B.eps
194


CLLA1C.eps
195


CLLA1D.eps
196


CLLA1E.eps
197


CLLA1F.eps
198


CLLA1G.eps
199

PREPARED STATEMENT OF JUDITH GREENSTONE MILLER ON BEHALF OF THE

COMMERCIAL LAW LEAGUE OF AMERICA

MARCH 18, 1998

Good morning and thank-you for inviting me to testify as a witness before the 

House Judiciary Committee’s Subcommittee on Administrative and Commercial 

Law. My name is Judith Greenstone Miller. I am an attorney and a member of the 

Birmingham, Michigan office of Clark Hill P.L.C., and a member of the Commercial 

Law League of America, its Bankruptcy and Insolvency Section, and its Creditors’ Rights Section. The CLLA, founded in 1895, is the nations oldest organization of attorneys and other experts in credit and finance actively engaged in the field of commercial law, bankruptcy and reorganization, with a membership exceeding 4,600 individuals. 

I am honored to address the Subcommittee on H.R. 3150, H.R. 2500 and H.R. 

3146, and have been asked to speak about the impact of these consumer proposals 

on unsecured creditors. The League believes that adoption of many of the consumer 

proposals contained in H.R. 3150 and H.R. 2500 will enhance the rights of unsecured creditors. Reform is appropriate in circumstances where abuse has been prevalent, such as (i) when debtors incur unsecured debt on the eve of bankruptcy when 

they are clearly insolvent, in financial distress or in all likelihood unable to pay for 

the goods or services, or (ii) when debtors obtain advances and such funds are used 

to extinguish priority or nondischargeable claims. 

H.R. 3146 appears to be based on the premise that virtually all of the financial 

ills faced by consumers today and the increase in bankruptcy filings are caused by 

credit granters. Credit card issuers in particular cases seem to bear the brunt of 

the legislation. It is the opinion of the CLLA that H.R. 3146 is unnecessarily punitive and ItS provisions are onerous. 

Reasonable people may disagree on some of the specific provisions contained in 

H.R 3150 and H.R. 2500, however, the CLLA believes that those two bills provide 

a more balanced and equitable approach to the very real and troubling financial 

problems being faced by consumers today. While the CLLA generally supports the 

consumer proposals contained in H.R. 3150 and H.R. 2500, the CLLA wishes to 

make the following observations and comments:

1. Section 141 of H.R. 3150 and Section 106 of H.R. 2500 grant en unsecured 

creditor who advances funds used to pay a priority or nondischargeable claim 

the same attributes as the ultimate recipient of the funds. The CLLA supports this proposal, but at the same time recognizes that it does not contain 

any time limits, and ultimately the benefit to be derived by the unsecured 

creditor who has advanced the credit will depend on its ability to trace the 

funds advanced.

2. Section 142 of H.R. 3150 and Section 107 of H.R 2500 grant nondischargeable status to debts incurred within 90 days of bankruptcy, thereby providing 

such unsecured creditors with the ability to seek repayment outside the 

bankruptcy case. While the CLLA recognizes that certain debts incurred on 

the eve of bankruptcy may be entitled to additional safeguards geared toward repayment, the CLLA believes that the section, as proposed, is overly 

expansive. It shifts the burden to prove the claim is dischargeable from the 

creditor to the debtor, which involves the commencement of an adversary 

proceeding. With such limited funds and resources, debtors are unlikely to 

be able to rebut the presumption of nondischargeability—thereby impairing 

the ‘‘fresh start’’ which bankruptcy is intended to provide them. In its written materials, the CLLA has suggested an alternative 2-prong approach, 

which Congress may wish to consider:

(i) shorten the time period for the rebuttable presumption from 90 to 30 

days, and

(ii) increase the time period for nondischargeability for purchases of luxury 

goods from 60 to 90 days.

This alternative 2-prong test would address the concerns of unsecured creditors 

by protecting them from nonpayment for goods purchased by debtors on the eve 

of bankruptcy and provide debtors experiencing financial difficulties disincentives to purchase luxury goods, while at the same time preserving the debtor’s 

‘‘fresh start’’ and providing fairer treatment to honest debtors, not otherwise 

abusing the system.

3. The CLLA supports the adoption of Section 143 of H.R. 3150 (which is more 

expansive than its parallel provision in H.R. 2500) and Section 104 of H.R. 

2500, which generally make fraudulent debts incurred in a Chapter 13 bankVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00203 Fmt 6601 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
200

ruptcy proceeding nondischargeable. This represents sound public policy, is 

consistent with Chapter 7 substantive law, and as a consequence, debtors 

will no longer be able to discharge such debts by electing Chapter 13 treatment.

4. The CLLA also supports Section 145 of H.R. 3150, which proposes to amend 

Section 523(a)(2) and make nondischargeable debts incurred by a debtor 

when there is ‘‘no reasonable expectation of repayment.’’ However, as proposed, this amendment is likely to present significant evidentiary problems. 

Therefore, if Congress seeks to provide unsecured creditors with a tangible 

and effective remedy under these circumstances, the Subcommittee may wish 

to consider inclusion of a codified standard setting forth specific factual criteria to prove the debtor’s financial state at the time the debt was incurred.

5. The CLLA supports Section 181 of H.R. 3150, which proposes to increase the 

time period an individual must be domiciled in a state from 180 to 365 days 

in order to take advantage of a particular state’s exemption scheme. Adoption of this provision would impact bankruptcy planning by debtors and negate forum shopping for the purpose of exempting property from the estate. 

Moreover, in some circumstances, it may result in an increase of the property 

of the estate to be liquidated by the trustee, thereby increasing the pot of 

funds available for unsecured creditors.

6. Section 109 of H.R. 2500 proposes that the automatic stay terminate 30 days 

after the filing of a petition if a prior petition was dismissed under Chapter 

7 unless the subsequent petition was filed in ‘‘good faith.’’ The CLLA believes 

that this provision is extreme and will result in impairing the delicate balance contained in the Bankruptcy Code, and further impact the fair treat to 

be accorded debtors.

7. Section 113 of H.R. 2500 recommends the establishment of a Bankruptcy Exemption Study Commission. While the CLLA does not believe that a study 

is necessary because the National Bankruptcy Review Commission (the 

‘‘Commission’’) extensively reviewed this issue, nevertheless, the CLLA 

would support such a study. The CLLA also supports the recommendations 

of the Commission in so far as they foster and promote ‘‘uniformity’’ of exemptions on a national basis to preclude forum shopping. However, the 

CLLA does not necessarily support the limits contained in the Commission’s 

Final Report.

8. Section 210 of H.R. 2500 expands the debtor’s duties upon commencement 

of a bankruptcy proceeding to file various financial documents (federal tax 

returns, evidence of payments received, monthly net income projections and 

anticipated debt or expenditure increases). Debtor’s compliance under this 

provision is required within 10 days of the request by a Chapter 7 or Chapter 13 creditor. The CLLA believes that such enhanced mandatory disclosure 

will provide additional information for creditors to assess the financial condition of the debtor, a benefit which the CLLA endorses.

The Commercial Law League of America appreciates the invitation to testify on 

H.R. 3150, H.R. 2500 and H.R. 3146 and their impact on unsecured creditors. I 

would be happy to respond to any additional inquires or concerns of the Subcommittee contained in my presentation, the written materials or other provisions 

of these bills. Thank you.

PREPARED STATEMENT OF THE COMMERCIAL LAW LEAGUE OF AMERICA AND ITS

BANKRUPTCY AND INSOLVENCY SECTION

MARCH 11, 1999

I. INTRODUCTION

The Commercial Law League of America (the ‘‘League’’), founded in 1895, is the 

nation’s oldest organization of attorneys and other experts in credit and finance actively engaged in the fields of commercial law, bankruptcy and reorganization. Its 

membership exceeds 4,600 individuals. The League has long been associated with 

the representation of creditor interests, while at the same time seeking fair, equitable and efficient administration of bankruptcy cases for all parties involved. 

The Bankruptcy and Insolvency Section of the League (‘‘B&I’’) is made up of approximately 1,600 bankruptcy lawyers and bankruptcy judges from virtually every 

state in the United States. Its members include practitioners with both small and 

large practices, who represent divergent interests in bankruptcy cases. The League 

201

has testified on numerous occasions before Congress as experts in the bankruptcy 

and reorganization fields. 

The League, its B&I Section and its Legislative Committee have analyzed the 

‘‘needs based’’ provisions of H.R. 833, the Bankruptcy Reform Act of 1999 (the 

‘‘Bill’’). The League supports changes to the Bankruptcy Code (the ‘‘Code’’) to limit 

possible abuses by debtors and credit grantors. Any proposed change will have consequences on the system. It is the goal of the League to help Congress carefully consider the practical implications of each change in order to maintain the delicate balance between the debtors’ rights and creditors’ remedies and to effectuate fair treatment for all parties involved in the process. 

II. ANALYSIS OF SECTION 102—DISMISSAL OR CONVERSION;

THE ‘‘NEEDS BASED’’ PROVISION OF THE BILL

This section of the Bill provides the circumstances under which a Chapter 7 proceeding can be dismissed or converted by the Court. Congress has proposed to substantially modify Section 707(b) of the Code as follows:

• Creditor standing to bring motions under Section 707(b) is limited under the 

proposed legislation. While the League recognizes that the limit is reasonable 

as drafted, nevertheless, the League believes that the size of the case should 

not impact creditor standing to bring such motions.

• A case may not be converted to Chapter 13 without the debtor’s consent. The 

League believes that it is appropriate to grant the Court discretion to convert 

a Chapter 7 proceeding irrespective of the debtor’s wishes if the debtor falls 

within the parameters of the ‘‘needs based’’ provisions, particularly when the 

debtor has received the benefit of the automatic stay during the interim period. The League recommends that after conversion to Chapter 13, the debtor 

should be given the right to dismiss the case during a 20-day period from the 

date of the conversion. The right to dismiss should not be subject to the discretion of the Court.

• ‘‘Substantial abuse,’’ as the standard for dismissal has been changed simply 

to require ‘‘abuse.’’ The League believes that the standard should remain 

‘‘substantial abuse.’’

• ‘‘Abuse’’ is defined by reference to specific, rigid ‘‘needs based’’ formula, when, 

in reality, as recognized by Congress, ‘‘abuse’’ may be found to exist based 

upon a review of the totality of circumstances surrounding the filing. See e.g., 

subsections 3(A) and (B). No formula, however well considered or crafted, can 

be flexible enough to encompass the endless combinations of circumstances 

which debtors bring to the bankruptcy court. While intended to provide a very 

objective standard, such formulas have proven historically to be the source of 

much litigation focused at interpreting and defining all of the parameters of 

the standards. A better approach would be to draft general standards or a 

more expansive definition of ‘‘abuse,’’ which would include, but not be limited 

to, a finding of ‘‘abuse,’’ based on a needs based formula, bad faith or specific 

behavior or activity. Ultimately, the Court would be required to make a finding after a review of all of the facts and the totality of circumstances surrounding the filing of the petition.

• The Bill does not grant the Court any discretion to determine, based on a totality of the facts and circumstances, whether a debtor who has sufficient income under the needs based formula should, nevertheless, be allowed to remain in a Chapter 7 proceeding. The League believes that courts do a good 

job generally of exercising discretion in individual cases, and therefore, such 

discretion should continue to be vested in the courts.

• The 5-year period required for calculation and determination of whether a 

debtor falls within the needs based formula is too long and inconsistent with 

the 3-year period currently provided in the Code for repayment of obligations 

under a Chapter 13 plan.

• The standard to rebut the presumption, e.g., ‘‘extraordinary circumstances,’’

is rigid, onerous, and likely to result in increased litigation over the evidence 

necessary to prove compliance with this standard. Moreover, subsection 2(B) 

requires the ‘‘extraordinary circumstances’’ to be evidenced by an itemized, 

detailed explanation, proving that such adjustment is both necessary and reasonable, and the accuracy of the information provided in the explanation must 

be attested under oath by both the debtor and its attorney. This verification 

requirement by the debtor’s attorney is inappropriate, unreasonable and apVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00205 Fmt 6601 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
202

pears to go beyond the parameters of Federal Rule of Bankruptcy Procedure 

9011 and Federal Rule of Civil Procedure 11.

• The needs based formula requires that ‘‘current monthly income’’ be calculated on the basis of all income, from all sources, regardless of whether taxable, received within 180-days from the commencement of the proceeding. The 

180-day period may be too short to obtain an accurate review of the debtor’s available sources of income, and may also be susceptible to manipulation. The 

League, therefore, recommends that the assessment period be redrafted to be 

one year from the date of the commencement of the bankruptcy proceeding.

• Congress has created a new and different standard for the award of fees and 

costs associated with the bringing of a motion to dismiss or convert under 

Section 707(b). There is no need to create a new standard, e.g., ‘‘substantially 

justified,’’ when sufficient standards for such relief already exist under Federal Rule of Bankruptcy Procedure 9011 and Federal Rule of Civil Procedure 

11. Appropriate sanctions are already available when it can be demonstrated 

that a creditor has filed a Section 707(b) motion solely for the purpose of coercing the debtor into waiving a right guaranteed under the Code. Moreover, 

the potential imposition of penalties on the attorney for the debtor if the case 

is deemed abusive will likely translate into increased costs and fees attendant 

to preparation and filing of a bankruptcy petition. Lastly, subsection 4(B) exempts a creditor with a claim of less than $1,000 from the imposition of costs 

and fees. The amount of one’s claim should not be a consideration in the 

award of fees and costs by the Court. 

III. THE PROPOSED ‘‘NEEDS BASED’’ CHANGES DO NOT WORK, WILL NOT CURE THE PER- CEIVED ABUSES TO THE BANKRUPTCY SYSTEM AND WILL OVERBURDEN AND TAX THE

SYSTEM

The National Bankruptcy Review Commission (the ‘‘Commission’’) conducted an 

exhaustive study and analysis of consumer bankruptcies over the period it was created by Congress. While the Commission recognized the import of a promise to pay, 

it also acknowledged the need for appropriate relief for those in financial trouble 

and equitable treatment for creditors within a balanced system. Bankruptcy, in 

most cases, is the ‘‘last stop’’ for financially troubled individual consumer debtors. 

The Commission also conceded that there were abuses in the system, but did not 

ultimately recommend the adoption of a needs based formula or otherwise denying 

individuals in financial distress access to the courts. 

Although bankruptcy filings have increased three-fold during the last 20 years, 

one cannot conclude that the reason for this increase is solely on account of debtor 

abuse, unwillingness of individual debtors to honor a promise to repay under a contract and the lack of social stigma associated with bankruptcy—the key factors, on 

which the needs based formula is erroneously premised. The Commission, bankruptcy organizations, practitioners, academicians and judges have dismissed each of 

these factors on the basis of the following substantial empirical data:

• The statistical evidence shows that consumers who file for bankruptcy relief 

today as a group are experiencing financial crises similar to families of 20 

years ago.

• Most families who file bankruptcy are seeking relief from debts they have no 

hope of repaying. In fact, an empirical study commissioned by the American 

Bankruptcy Institute from Creighton University concluded that the means 

testing formula would only affect 3% of the Chapter 7 filers because the remaining 97% had too little income to repay even 20% of their unsecured debts 

over five years. The Purdue Study, funded by the credit card industry, which 

supported a means based test because it contended that a substantial number 

of debtors who file could repay their debts, has been criticized as unreliable 

and misleading by, among others, the Government Accounting Office. This is 

not the first time that the means testing has been considered—Congress has 

resisted this attempt over the last thirty years and should decline to endorse 

this proposal without the demonstration of reliable, cognizable benefits that 

do not otherwise burden and impair the system.

• The triggering events for filing bankruptcy by individuals depend on individual circumstances, such as layoffs, downsizing, moving from employee to 

independent contractor status, uninsured medical bills, car accidents, institutionalized gambling, failed businesses, job transfers, caring for elderly parents 

or children of siblings, divorce, etc.

• At the same time that individual consumer bankruptcies have increased, 

there has been an increase in available credit and massive marketing camVerDate 0ct 09 2002 12:08 Jun 30, 2003 Jkt 000000 PO 00000 Frm 00206 Fmt 6601 Sfmt 6621 G:\WORK\COMM\030403\85404.000 HJUD1 PsN: 85404
203

paigns. According to the Consumer Federation of America, from 1992 through 

1998, credit card mailings have increased 255%, unused credit lines have increased 250%, while debt has increased only 137%. With increased credit, the 

littlest financial change in a family can have devastating consequences.

• Kim Kowalewski, Chief, Financial and General Macroeconomic Analysis Unit, 

Congressional Budget Office, concluded that a study conducted and funded by 

Visa, USA was ‘‘unscientific,’’ ‘‘invalid’’ and ‘‘unfounded.’’ The study had suggested that the increase in personal bankruptcies was directly attributable to 

the decreased social stigma of filing bankruptcy and increased advertising of 

legal assistance for filing bankruptcy. While the League recognizes that decreased social stigma and increased advertising are contributing factors, that 

is only the beginning of the analysis and does not constitute the sole bases 

accountable for the tremendous increase in bankruptcies. Mr. Kowalewski 

concluded that the increase in bankruptcies was more a function of increased 

debt rather than a sudden willingness to take advantage of the system. Is it, 

for example, any less embarrassing for an individual to file a petition in bankruptcy than to have his home foreclosed, his car repossessed or his neighbors 

contacted by debt collectors?

• Requiring trustees to review each case and apply the means test and forcing 

debtors into Chapter 13 will overburden the system. Application of the standards and pursuit of a motion is an unreasonable burden for the panel trustees. The trustees are paid only a minimal fee (e.g., $60) for substantial responsibility in no asset cases. The means testing will involve not only analysis 

in each case, but also numerous motions, many of which are likely to be contested by debtors. If there are no nonexempt assets, which is generally the 

case in most Chapter 7 cases, how is the trustee to be compensated? Moreover, pursuing a Rule 9011 action against a debtor’s attorney is not likely to 

produce an immediately available and certain source of recovery for the trustee. The trustee could be required ultimately to spend a potentially huge 

amount of time with little or no assurance of any repayment for such services. 

This represents a tremendous burden on the system, when according to the 

National Association of Bankruptcy Trustees, only one in every ten cases subject to the means testing and with apparent ability to propose a Chapter 13 

plan are able to actually confirm or complete the plan.

• The establishment of the means test creates a number of anomalies. For example, if a debtor files a Chapter 13 initially, the means formula does not 

apply, and in a number of jurisdiction, the debtor could propose a zero percent plan and discharge the same debt he would have in a Chapter 7 proceeding. This is not what Congress intended to create under the means test.

• The means test further operates to the exclusion of the trustee’s significant 

avoidance powers. For example, the schedules may reveal a significant preferential payment that, if recovered, would result in a distribution to creditors 

in excess of what they would receive upon application of the means test. Dismissal of the proceeding under such circumstances is hardly the remedy in 

the best interest of either the debtor or its creditors.

• The proposed means test invites manipulation by the debtor to fit within the 

standard. Individuals with secured debt are allowed deductions for such obligations prior to calculating available disposable net income. A debtor with too 

much income could trade in an old car for a new one, deduct the payment 

from the means formula and thereby become eligible for Chapter 7 relief. Another option is for debtors with too much income to make use of The Religious 

Liberty and Charitable Donation Protection Act of 1998, which allows debtors 

to contribute up to 15% of their gross income to charities. Such contributions 

are not considered in making the calculation under Section 707(b). A debtor 

with income of $60,000 could thereby remove $750 per month in disposable 

income by making the maximum allowable charitable contribution.

• If a debtor does not qualify for Chapter 7 or Chapter 13, the only alternative 

is Chapter 11—a costly and unfeasible alternative for most individual debtors.

• Judge Edith Holland Jones, in her Dissent to the Final Report of the Commission, has suggested that the sanctity of contract and one’s moral obligation 

to honor promises to repay necessitates establishment of a means test, absent 

which bankruptcy as a social welfare program will be subsidized by creditors 

and the vast majority of Americans who struggle and succeed to make ends 

meet financially. The League is sympathetic to the issues raised by Judge 

Jones, however, the means test, as proposed, does not remedy the perceived 

abuse. Determining eligibility merely on the basis of net disposable available 

204

income, without consideration of the myriad of factors contributing to the financial problem and without court discretion, would preclude too many honest first time debtors from obtaining redress from the court of last resort.

• Congress is operating from the premise that filing bankruptcy is per se abusive. Rather, the focus of Congress should be on debtors who abuse the system by serial filings and those provisions of the Code which encourage abuse 

of the system (e.g., unlimited exemptions). Ultimately, the courts should be 

given the tools (e.g., the totality of the circumstances, including consideration 

of a discretionary, flexible means test) and the express authority to determine 

when abuse is present and how such abuse should be remedied—the concept 

of a fresh start and maintenance of the delicate balance between debtors’

rights and creditors’ remedies must be preserved. Under the current Code, 

the courts do not have the authority to affirmatively look for abuse or fashion 

an appropriate remedy except in the most egregious circumstances. Adoption 

of a ‘‘totality of circumstances’’ test, in conjunction with a discretionary means 

test, would represent a major change and a vehicle by which abuse could be 

addressed and remedied. 

IV. CONCLUSION

Maintaining and enhancing a fair, balanced and effective bankruptcy system requires consideration and debate of all the issues. Any individual change has an impact on the entire system, and cannot and must not be evaluated in a vacuum. The 

League takes seriously its role in this process, and believes that other options beyond the current mandatory needs based formula should be explored that would address the real abuses and preserve the bankruptcy system which Congress acknowledged it was generally satisfied with in 1994 when this process began and that the 

system was not in need of radical reform. Adoption of a fixed, rigid needs based formula, as contained in the Bill, represents ‘‘radical reform,’’ which has not been justified and will impair the delicate balance inherent in the system; nor is it likely to 

rid the bankruptcy system of the perceived abuses. 

Respectfully submitted, 

JAY L. WELFORD, Co-Chair, 

Legislative Committee 

JUDITH GREENSTONE MILLER, 

Co-Chair, Legislative Committee.

ARTICLE FROM THE WASHINGTON POST

MARCH 04, 2003, TUESDAY, FINAL EDITION

SECTION: A SECTION; Pg. A01

LENGTH: 1159 words

HEADLINE: Called-Up Reservists Take Big Hit in Wallet; Families Struggle on 

Military Salary

BYLINE: Christian Davenport, Washington Post Staff Writer

BODY:

Spring should be the busy season for the Brinkers’ Columbia home improvement 

business. But instead of cashing in on the jobs that will come up as the weather 

improves, Lynn Brinker is calling customers to cancel thousands of dollars’ worth 

of work.

It was less than five months ago that her husband, Sgt. Mark Brinker, an Army 

reservist with the 400th Military Police Battalion, returned from a year-long, postSept. 11 deployment to Fort Sam Houston in Texas. To get through that tour, Lynn 

Brinker cashed in savings bonds meant for the education of their three children, 

took out a bank loan and borrowed $15,000 from a relative.

Now, Mark has been called up again, this time for the impending war in Iraq, and 

she doesn’t know what they’re going to do.

‘‘There is just no way we can make ends meet with him gone again,’’ she said. ‘‘It’s 

just ridiculous. We’re in our forties, we’ve worked hard, and we didn’t expect to have 

to be starting all over again like this.’’

As the Pentagon continues to activate reserve and National Guard troops, some of 

the biggest sacrifices are being made on the home front. In addition to risking their 

205

lives, many soldiers, sailors, airmen and Marines are risking their livelihoods, leaving civilian jobs that pay much better than the military. Families are selling second 

cars, canceling vacations and postponing paying bills as they steel themselves for 

drastic reductions in income.

For the reservist on inactive status, the duty can be a welcome source of extra cash. 

A private with less than two years’ experience can pick up $2,849 a year for one 

weekend a month of drilling and an annual two-week training exercise. A staff sergeant with six years can get $4,628. With a call to active duty, the pay bumps up—

$16,282 for a private first class and $26,448 for the staff sergeant, which is tax-free 

while the military member is in a combat zone.

There are other benefits. Mortgage and credit card rates are reduced. In some cases, 

the law prohibits landlords from evicting military families even if they haven’t paid 

rent. And employers are required to take reservists back once they return from 

duty, with no loss in pension benefits or seniority.

But the package comes nowhere near making up for many civilian salaries.

The reservists are volunteers, of course. They have been reminded repeatedly that 

active duty could come at any time. But many say they signed up for the several 

thousand a year in extra pay and other perks, not for war.

‘‘I thought I could get some money for school,’’ said Spec. Robert Moore of Pasadena, 

who spent a year on active duty with the Army’s 443rd Military Police Company 

after the Sept. 11, 2001, terrorist attacks and was shipped off again last week for 

training at Fort Lee, Va.—most likely a prelude to deployment overseas. ‘‘I think 

most people just thought: ‘We’re just the reserves. We’re not going anywhere.’ ’’

Sgt. Kevin Green hears similar comments from his Army National Guard troops in 

the 1229th Transportation Company.

‘‘They don’t want a weapon in their hands, riding around in another country, worried that they won’t come back,’’ he said.

As of last week, 168,083 reserve and National Guard troops were on active duty, 

including thousands from Washington, Maryland and Virginia. They have guarded 

al Qaeda and Taliban detainees from Afghanistan at Guantanamo Bay in Cuba and 

patrolled Iraq’s no-fly zone. Now, area troops are getting ready to set up refugee 

camps in northern Iraq and to transport equipment to the front lines. In the Maryland National Guard, 3,000 of 8,000 members have been called up since Sept. 11, 

2001.

‘‘The military can’t conduct a war without the National Guard and reserve components,’’ said Maj. Charles Kohler, a spokesman for the Maryland National Guard.

Green’s unit probably will be placed somewhere in the Middle East, he said. He 

doesn’t yet know where, but it will be a world away from his civilian life, where 

he has two children and is in charge of Sears deliveries in Maryland. While on active duty, he expects to lose about $1,000 a month, the equivalent of his monthly 

mortgage payment.

Green was called up during the Persian Gulf War, and this time around, he thought 

he knew how to prepare. But still he was caught somewhat off guard.

‘‘You try to put a few dollars away in case of an emergency,’’ he said. ‘‘But this isn’t 

an emergency; this is a crisis.’’

Now, he’s praying for two things: ‘‘I hope we win the lottery, or at least that our 

car doesn’t break down.’’

His fiancee, Wanda Jones, will have to work overtime at her pharmaceutical company job to help make up the difference. And they’ve already had a conversation 

about finances when he’s gone.

‘‘I’m going to cut out shopping at the mall,’’ she said.

Some firms continue to pay troops on active duty, or at least to make up the difference between military and civilian pay. A survey by the Reserve Officers Association of the United States found that of the 154 Fortune 500 corporations that responded to a query, 105 make up the difference in pay. Last year, just 75 of 132 

responding companies did so, and in 2001, the number was 53 of 119.

Army Reserve Sgt. Jeffery Brooks, a fraud detection manager from Woodbridge, said 

his company, Capital One, has agreed to pay him the difference. Otherwise, he 

would be losing $2,200 a month. ‘‘I’d be in real trouble,’’ he said.

206

Daniel Ray, editor in chief of bankrate.com, an online financial information service 

that helps reservists, said many people are not so lucky. ‘‘Those are generous bosses 

to have,’’ Ray said. ‘‘But if you’re self-employed, or you’ve built up your practice over 

the years, it can be very hard. When you go away, your practice dries up. Then it 

doesn’t just affect you but your secretary and the people who rely on you.’’

Not everyone takes a financial hit. Army Reserve Lt. Orlando Amaro would make 

the same amount guarding a POW camp in Iraq as he does as a D.C. police officer 

patrolling the streets of Columbia Heights. If he is shipped overseas, where his income wouldn’t be taxed, he may come out ahead.

‘‘It won’t affect me at all,’’ he said.

Lynn Brinker isn’t thinking about coming out ahead. She may sell the Chrysler she 

and her husband recently bought. She wants desperately to let her 12-year-old son, 

Chris, continue private viola lessons, and for Kevin, 10, to keep up with the trumpet. She wonders whether she’ll be able to afford the registration fees and equipment for youth hockey in the fall.

‘‘My thinking is we’ll tap this line of credit and try to keep my kids’ lives as normal 

as possible while their father is away. It’s very traumatic for them,’’ she said.

‘‘People may say, ‘Well, he signed up for this. You knew this could happen.’ But he 

was away for an entire year, and then leaves four months later. And now we don’t 

know how long he’ll be gone. I don’t think he signed up for that.’’

LOAD-DATE: March 04, 2003

207


LetA5.eps
208


LetA6.eps
209


100-14.eps
210


100-14A.eps
211


100-14B.eps
212


100-14C.eps
213


ESCM1.eps
214


ESCM2.eps
215


ESCM3.eps
216


ESCM4.eps
217


ESCM5.eps
218


ESCM6.eps
219


ESCM7A.eps
220


ESCM8A.eps
221


ESCM9.eps
222


ESCM10.eps
223


ESCM11.eps
224


ESCM12.eps
225


ESCM13.eps
226


ESCM14.eps
227


ESCM15.eps
228

Æ


ESCM16.eps