Skip to main content

Search

Truth in Lending: 11.2.3.7 Is the Risk of Harm a Concrete Injury?

Ramirez appears to cut back on the principle that Spokeo seemed to adopt that “the risk of real harm” can be a concrete injury in a suit seeking money damages.79 Where there is only a risk of harm, the majority opinion in Ramirez states that standing is confined to suits seeking prospective relief, such as an injunction.80 This statement appears to be dicta, because the Court concluded on the facts that the plaintiffs had not established a risk of harm

Truth in Lending: 11.2.3.9 Private Rights vs. Public Rights

In Spokeo, Justice Thomas, while concurring in the majority opinion, had proposed a different conceptual framework, founded on a distinction between “private rights” and “public rights.” Quoting Blackstone, he defined private rights as those “belonging to individuals, considered as individuals,” including rights of personal security, property rights, and contract rights.

Consumer Banking and Payments Law: 1.5.10.2a Breach of Contract

Claims that banks breached their contracts with depositors by, for example, failing to abide by a clause promising to notify depositors in advance of any fee changes or by charging overdraft fees when the account was not overdrawn are not preempted.211 The savings clause of OCC’s preemption regulation explicitly preserves state contract law.212

Consumer Bankruptcy Law and Practice: 9.4.4.2 Setoff and Recoupment of Government Benefits

Some debtors seek bankruptcy relief because the limited income they receive from a government benefit program is being reduced to recover an overpayment of benefits. The question of how such overpayments are treated in bankruptcy, including application of the automatic stay, often turns on the type of benefit program involved and the distinction between setoff and recoupment. Both setoff and recoupment involve situations in which the debtor and creditor are obligated to each other.

Consumer Bankruptcy Law and Practice: 9.4.4.4 Interception of Tax Refunds

The interception of tax refunds to pay student loans or other debts being collected by the government is another example of an act that is stayed.166 Although it is sometimes not easy to determine the date the intercept actually occurred, if it occurred after the bankruptcy case was filed it is normally possible to have the intercepted funds returned to the debtor.167 The Internal Revenue Service (IRS) has been one of the most frequent adversaries in litigation regarding these issues.

Consumer Bankruptcy Law and Practice: 9.4.6.2 Criminal Proceedings

The stay does not automatically prohibit commencement or continuation of criminal proceedings.197 Thus, a criminal case based upon a bad check can continue without violation of the stay.198 This exception, however, does not necessarily protect a private creditor who instigates such proceedings in an attempt to collect a debt.199 The exception also does not include the collection of a monetary liability imposed as part of a probation program or as r

Consumer Bankruptcy Law and Practice: 9.4.6.3 Family Law Exceptions

The 2005 amendments to the Code created exceptions to the automatic stay provisions for proceedings concerning child custody, visitation rights, domestic violence, and divorce (to the extent the divorce proceeding does not seek to divide property of the estate).207 These exceptions are common sense corrections for proceedings that do not have an impact on bankruptcy. Many people had probably assumed they were not stayed, though in fact they usually were, because they were legal proceedings that could have been commenced prior to petition.