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Consumer Bankruptcy Law and Practice: 17.1.3.3 Problems Under Chapter 11 for Farmers
Before enactment of chapter 12, most farmers attempted reorganization under chapter 11, even though this chapter is generally ill suited to family farm reorganization. Chapter 11 presents both practical and substantive problems for family farms.37
Consumer Bankruptcy Law and Practice: 17.1.5 Timing a Chapter 12 Filing
The most obvious consideration in making a chapter 12 filing is to forestall a crisis event—for example, foreclosure, repossession—that will destroy the farming operation. The new credit counseling requirement applies to all individual debtors, so fulfilling this obligation must be built into prebankruptcy planning.80 Other factors may bear on the timing of a chapter 12 bankruptcy and should factor into the filing decision too. For example:
Consumer Bankruptcy Law and Practice: 17.2.1 Overview
Chapter 12 is only available to a “family farmer” or a “family fisherman” with “regular annual income.” Each of these terms is specifically defined in the Code. Not every farmer and not every fisherman has chapter 12 as an option.86
Consumer Bankruptcy Law and Practice: 17.2.2.1 Generally
All individuals are subject to the prepetition credit counseling requirement at section 109(h) in order to be eligible for bankruptcy.87 This eligibility requirement applies to individuals who are farmers, family farmers, or family fishermen and, it applies in chapter 12 cases.88 The credit counseling requirement does not apply, however, to corporations or partnerships that are otherwise eligible for chapter 12.89 However, individual family farm or famil
Consumer Bankruptcy Law and Practice: 17.2.2.3 The “Engaged in a Farming Operation” Requirement
A family farmer must be engaged in a “farming operation.”110 Similarly, a family fisherman must be “engaged in a commercial fishing operation.”111 As both are also defined according to the income they receive from farming/fishing and their debts from farming/fishing, the “engaged in farming” and “engaged in a commercial fishing operation” requirements will overlap extensively with the determination of whether income and debts relate to the operation.
Consumer Bankruptcy Law and Practice: 17.2.2.4.1 Introduction
The terms “family farmer” and “family fisherman” for individual debtors are defined according to a maximum debt ceiling, a percentage of farm income, and a percentage of farm debt.
Consumer Bankruptcy Law and Practice: 17.2.5 What to Expect at the Meeting of Creditors
The meeting of creditors is conducted by the standing chapter 12 trustee or the United States trustee. Creditors may well appear and submit questions.
Consumer Bankruptcy Law and Practice: 17.3.1 What Is a Debtor-in-Possession?
The filing of a chapter 12 petition establishes the family farmer debtor as a debtor-in-possession.213 A debtor-in-possession, often termed a DIP, is a legal fiction created by the Bankruptcy Code, originally under chapter 11.214 Although it is the individual who operates the farming operation as a DIP, a DIP is a legal entity separate and apart from the actual debtor.
Consumer Bankruptcy Law and Practice: 17.4.7.3 Installment Land Contracts As Executory Contracts
A significant amount of farmland is conveyed through an installment land contract or “contract for deed.” Although the parties to the contract may view it as a simplified mortgage transaction, as is noted in § 12.9.1, supra, such a contract may be considered an executory contract under section 365.
Consumer Bankruptcy Law and Practice: 17.4.7.4 Unexpired Equipment Leases
Rejection of farm equipment leases can be particularly helpful in the chapter 12 paring down process. Most long-term leases are more expensive than either purchasing the equipment outright or leasing services or equipment short-term on an “as needed” basis. This rejection of long term leases should be done at an early stage to avoid unnecessary administrative expenses.421
Consumer Bankruptcy Law and Practice: 17.5.4.6 Replacement Liens
Because confirmation of a chapter 12 plan revests property in the debtor, and the secured creditor is bound by the plan after confirmation, a debtor may be able to propose the substitution of other collateral for existing collateral if that is beneficial for the debtor and non-prejudicial to the creditor.550 Situations in which replacement liens or substitution of different collateral may be appropriate are:
Consumer Warranty Law: 13.4.9 Individual Arbitration
When an enforceable arbitration agreement forecloses class arbitration, class action court litigation, and individual court litigation, adequate client representation may require raising the consumer’s warranty claims in an individual arbitration proceeding. While this approach is not preferred, under some circumstances consumers may achieve good results, particularly if the selected arbitrator has an open mind on consumer claims.
Consumer Banking and Payments Law: 4.5.9.7 Bank Policies Limiting Cash Withdrawals
Even if the EFAA requires funds to be made available, a bank may still have a policy limiting the amount that may be withdrawn in cash in a single day. The funds availability rules do not supersede any policy of a depositary bank that limits the amount of cash a customer may withdraw from its account on any one day, if that policy:
Consumer Banking and Payments Law: 4.8.6.2 UCC and Common Law Rules Governing Check and Deposit Scams
This section discusses the UCC Article 4 rules that apply in the case of a check scam, and how those rules interact with common law claims. Similar rules may also apply to electronic payment scams if the UCC or equivalent rules are incorporated into an agreement with the consumer and extended to other types of payments.
Consumer Banking and Payments Law: 4.8.8 Re-Deposits of Checks Deposited Through Remote Deposit Capture
When a bank accepts a deposit through remote deposit capture (RDC),529 there is the risk that the same check will be re-deposited to another account. The original paper check may be deposited, or an image may be re-deposited to a second account through RDC. In some cases, consumers who deposit checks through RDC may be exposed to losses if the check is later re-deposited.
Truth in Lending: 11.2.3.1 The Factual Background of Ramirez
In 2021, the Supreme Court issued a second major decision, TransUnion L.L.C. v. Ramirez,37 about the application of Article III to claims under federal consumer protection laws. The case arose when TransUnion, one of the “Big Three” nationwide consumer reporting agencies, issued a report identifying a car buyer, Sergio Ramirez, as a potential terrorist.
Truth in Lending: 11.2.3.2 The Holdings in Ramirez
The Ramirez opinion begins by discussing general principles for Article III standing.
Truth in Lending: 11.2.3.4 When Does Harm Have a Close Relationship to Harm Traditionally Recognized As a Basis for a Lawsuit?
Ramirez provides more detail about one of the two alternative tests for Article III standing articulated in Spokeo: that the harm the plaintiff suffered has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts.52 In practice, this will most often mean looking for a “common-law analogue.”53 But this does not mean a plaintiff must match every element of a common law cause of action: Ramirez states that Ar
Consumer Banking and Payments Law: 6.5.2.1a Exemptions from Regulation E Protections for Remittances
The CFPB’s original regulations for remittances, adopted in 2013, excluded from the definition of “remittance transfer provider” those providers who, in the normal course of business, provided 100 or fewer remittance transfers in both the previous and the current calendar year.166 The 2020 amendments to these regulations increased the threshold to 500 or fewer remittance transfers in both the previous and current calendar year.167
Consumer Banking and Payments Law: 6.5.2.3.2 Specific disclosures required before and after payment
Prepayment disclosures must be provided “at the time the sender requests a remittance transfer to be initiated,” and include the following information:
Consumer Banking and Payments Law: 6.5.2.3.3 Estimates permitted for remittance disclosures
The statute permits estimates to be provided for the amount to be received by the recipient in only two instances.