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Consumer Bankruptcy Law and Practice: 1.3.3 Organization of the Treatise

Volume One contains the text chapters, bibliography, and index, while Volume Two contains the appendices. Additional pleadings, primary sources, and practice tools are available online as companion material to the online treatise.

To facilitate Volume One’s use by the various constituencies to which it is addressed, it is divided into several parts. Although there are frequent cross-references, each part has a different purpose.

Consumer Bankruptcy Law and Practice: 1.3.4 Pleadings, Primary Sources, and Practice Tools

The digital version of this treatise includes pleadings and discovery, practice tools, and primary sources, that can easily be downloaded, emailed, and cut and pasted into documents. They may be found using either the Companion Material tab found at the top of the left pane of any subsection in the treatise and are fully searchable. Search filters allow users to search only for pleadings, only for primary sources, or only for practice tools. Additional filters for each category of companion material allow one to further narrow a search with or without a search term.

Consumer Bankruptcy Law and Practice: 1.3.5.1 This Treatise Does Not Contain Citations to Every Relevant Case

The number of reported cases on consumer bankruptcy issues has far outstripped the space in this treatise to catalogue them. The text of the treatise discusses a wide variety of issues that may arise in consumer cases. The footnotes contain case law that will serve as a starting point for research. We have attempted, whenever possible, to include the relevant court of appeals decisions on the topics discussed as well as other cases that support the arguments a consumer may wish to make. However, do not expect to find all relevant cases on any topic or cases in each jurisdiction.

Consumer Bankruptcy Law and Practice: 1.3.5.2 Other NCLC Treatises

Consumer law questions on issues other than bankruptcy often arise in the context of a bankruptcy case. For example, bankruptcy clients are often the victims of debt collection abuses and may have causes of action to remedy those abuses. Similarly, creditor overcharges can often result in overstated claims.

Consumer Bankruptcy Law and Practice: 1.4.1.1 The Bankruptcy Code

The most important source of law in bankruptcy cases is, of course, the statute itself. The Bankruptcy Code, which is title 11 of the United States Code, was meant to be a comprehensive body of law, gathering from other parts of the United States Code all those provisions dealing with the substantive law of bankruptcy.

Consumer Bankruptcy Law and Practice: 1.4.2 The Federal Rules of Bankruptcy Procedure

Complementing the statute’s mostly substantive provisions are the Federal Rules of Bankruptcy Procedure, also known as the Bankruptcy Rules, which were promulgated by the Supreme Court in 1983 and amended at various times since then.82 These rules provide detailed guidelines in numerous areas not specifically covered by the Code. They cover the procedures not only for administering the bankruptcy petitions themselves, but also for proceedings within or related to the principal bankruptcy case.83

Consumer Bankruptcy Law and Practice: 1.4.4.1 Pending Legislation and Amendments to the Rules

Nearly every year there are a variety of efforts to amend the Bankruptcy Code, rules, and official forms. Some of these efforts come to fruition and others do not. Careful attention to the progress of those amendments and their effective dates is required.

In addition, potential changes to the rules and forms are almost always percolating through the system. The progress of proposed amendments can be tracked at the United States Courts’ website.104

Consumer Bankruptcy Law and Practice: 1.4.4.3 Local Bankruptcy Rules

In addition to the Bankruptcy Rules, practitioners should refer to any local rules106 and local practice to fill in gaps in interpretation. Pursuant to the policy of the federal Judicial Conference, local bankruptcy rules are generally numbered to correspond to the Federal Rules of Bankruptcy Procedure to which they relate. Some courts may also promulgate local “procedural orders” applying to all cases before that court.

Consumer Bankruptcy Law and Practice: 1.4.4.4 Case Law Under the Code

Over the years, many bankruptcy cases under the Code have reached the United States Supreme Court. Although the Supreme Court’s definitive holdings reach only limited specific issues in bankruptcy law, two important guiding principles have been enunciated on several occasions.

Consumer Bankruptcy Law and Practice: 1.5.1.2 The 1984 Amendments

Like the Bankruptcy Reform Act, the 1984 amendments, particularly those concerning consumer bankruptcy, evolved through a lengthy process of hearings and reports followed by a last-minute frenzy of compromises. As with the 1978 Act, there is no formal conference report and no explanation of many of the final provisions other than in statements on the floor of Congress by their sponsors.

Consumer Bankruptcy Law and Practice: 1.5.1.3 The 1986 Amendments

The legislative history of the 1986 amendments is somewhat less ample. The United States Trustee Program, first conceived and discussed in the legislative history of the 1978 Bankruptcy Reform Act, was the subject of several competing bills in the House and Senate. Similarly, the plight of family farmers led to the hurried introduction of a number of bills to remedy their situation.

Consumer Bankruptcy Law and Practice: 1.5.1.4 The Bankruptcy Reform Act of 1994

Like much other bankruptcy legislation, the Bankruptcy Reform Act of 1994 was passed in a flurry of last-minute activity, so there is no conference report detailing the final compromises between the House and Senate versions of the bill. Instead, these compromises were worked out as the bill was being considered in the House Judiciary Committee and during the time between its passage out of that committee and its consideration on the House floor.

Consumer Bankruptcy Law and Practice: 1.5.2 Rules Advisory Committee Notes

The Federal Rules of Bankruptcy Procedure were accompanied by advisory committee explanatory notes, as was each amendment to those rules. These notes are available online as companion material to this treatise and in a number of published versions of the rules137 and, like the legislative history, are the most authoritative explanation of the drafters’ intent. On questions of rule interpretation, therefore, they should be the first source consulted.

Consumer Bankruptcy Law and Practice: 1.5.3 Treatises and Texts

Collier on Bankruptcy. Of the many treatises and texts on bankruptcy law that have been available, one has become by far the most frequently used and is a bible to many judges and practitioners.138 Any office doing a substantial amount of bankruptcy work should have access to Collier on Bankruptcy,139 which is co-edited by one of the principal congressional staff persons who worked on drafting the legislation.140

Consumer Bankruptcy Law and Practice: 1.5.4 Reporting Services

Because much of the initial case law developed under the Code is found in decisions of the bankruptcy courts, which are not reported in the Federal Supplement or other standard reporters, and because federal district court bankruptcy decisions are no longer reported in the Federal Supplement, access to a bankruptcy reporting service is essential.160 Several competing services are available.

Consumer Bankruptcy Law and Practice: 1.5.7 Computer-Assisted Legal Research

One of the fastest and most thorough methods of bankruptcy research is use of any of the several computer-assisted legal research services that are now available, for example, Lexis and Westlaw. These systems contain a full-text database of bankruptcy cases, and usually also contain many unreported decisions, as well as a citator. The Lexis and Westlaw databases also contain public record information that may be necessary, including UCC filings, bankruptcy records, and various bulletins, law reviews, and newsletters. These services are now available over the Internet.