I have taught bankruptcy for more than thirty years and so when I consider Chapter 13 I also I consider Chapter XIII. And, when I think about Chapter 13/XIII, I think about people.
Not the consumer debtors whom I have represented. I have never represented a debtor in a Chapter 13/XIII case. Instead people from whom I have learned how Chapter 13/XIII should work.
As a baby law professor at the University of North Carolina, I was fortunate to get to know James B. Craven, who taught Contracts at Carolina and practiced criminal law and consumer law bankruptcy law in Durham. Jim would talk with me about how some of his clients would use Chapter XIII to save their homes, their cars, and sometimes their self-respect.
In my first year at the University of Texas, I got to know John Akard — “star” of the University of Texas Law School’s initial bankruptcy programs, Chapter XIII trustee in El Paso, then bankruptcy judge in Lubbock. Anyone who practiced consumer bankruptcy law in El Paso or Lubbock, or has heard John speak, would easily identify the following words with John: “First and foremost, bankruptcy is about people — people who have problems. They look to their lawyers and to the court for a solution to those problems.” Hon. John C. Akard, The Human Side of Bankruptcy, Am Bankr.Inst.J. Feb. 1999
These words could also be identified with other outstanding Chapter 13 trustees and bankruptcy judges. Or with Jim Craven and other outstanding attorneys who did Chapter XIII bankruptcy work, who do Chapter 13 bankruptcy work.
Regrettably, people who apparently don’t know lawyers like Jim Craven or Chapter 13 trustees like John Akard identify Chapter 13 in other ways. There are popular books that characterize Chapter XIII/13 debtors as “southern” or “stupid” (if that is not redundant to these authors). There were numerous law professors that advocated the abolition of Chapter XIII/13, suspicious that it was lawyers or judges that were coercing individuals to use Chapter XIII/13. And, then there was the Congress that adopted BAPCPA.
BAPCPA not only reflected Congress’ lack of trust of individual debtors and their attorneys but also of bankruptcy judges. There are so many BAPCPA provisions that eliminate or limit the discretion of bankruptcy judges.
We have had more than three years to complain about BAPCPA.
We now need to understand that there is nothing to be gained by
complaining further about BAPCPA. We need to borrow from
Chris LeDoux (who borrowed from those great
Americans, The Geezinslaws):
We got a five dollar fine for whining...
Now there's too many fools makin' too many rules
That's one thing you can't say about us
Cause we all get along when we sing the same song . . .
We got a five dollar fine for whining.
Take a look at section 74 of the Bankruptcy Act of 1898. That’s the statute Val Nesbit had to work with when he devised procedures for wage earners that became Chapter XIII. Just as Nesbit made a fundamentally flawed statute work for the benefit of both creditors and debtors, people like Jim Craven and John Akard will devise procedures that make post-BAPCPA work for the benefit of both creditors and debtors.
