McGraw-Hill/Irwin Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved. Chapter 18 Secured Transactions and Bankruptcy.

McGraw-Hill/Irwin Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter 18

Secured Transactions and Bankruptcy

18-2

Chapter 18 Case Hypothetical

On September 7, 2010, Albert O’Leary extended a $10,000 loan to his friend Corey Johnson. As security for the loan, Corey gave a document to Albert with the following language:

“I, Corey Johnson, hereby give a security interest in my 2009 Chevrolet Camaro to Albert O’Leary in return for his $10,000 loan to me on September 7, 2010. Signed, Corey Johnson.”

Does Albert O’Leary have a perfected security interest in Corey Johnson’s 2009 Chevrolet Camaro?

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Chapter 18 Case Hypothetical

Jerry Eller purchases a laptop computer for $995 from the local Preferable Purchase electronics store. He charges the $995 amount on Preferable Purchase “instant credit,” and the store has guaranteed him no finance charges if he pays the $995 amount within one year from the date of purchase.

Jerry purchased the computer for use in his business, Eller’s Civil War Battlefield Tours, Inc. On any given week, Eller uses the laptop approximately 20 hours for the purposes of Eller’s Civil War Battlefield Tours, Inc., and 10 hours to play the online video game “Gloom” (his favorite hobby.) One year passes, and Jerry does not pay any of the credit balance. After repeated attempts by Preferable Purchase’s Credit Department to collect on the debt, Jerry still refuses to pay.

Does Preferable Purchase have a perfected security interest in the laptop computer? If not, why not? If so, what advantage(s) does that afford Preferable Purchase?

18-4

Chapter 18 Internet Research Exercise

Go to http://www.thebankruptcysite.org/bankruptcy-exemptions and research the Chapter 7 bankruptcy exemptions allowed in your particular state (“Exemptions” represent property the debtor is allowed to keep, even though he/she is filing for Chapter 7 liquidation bankruptcy.) Based on your research, are your state’s Chapter 7 exemptions more or less generous than the federal bankruptcy exemptions outlined in Exhibit 32-4 of the textbook?

Although bankruptcy is primarily a matter of federal jurisdiction (delegated to the federal government in Article I, Section 8 of the United States constitution), the federal government does allow the individual states to craft their own Chapter 7 exemptions for individuals filing in their particular state. If the state chooses to enact its own Chapter 7 exemptions, the state can then require those filing in its jurisdiction to use the state exemptions, or it can allow the bankrupt debtor to choose the federal exemptions outlined in Exhibit 32-4 of the textbook. If the state chooses not to enact its own Chapter 7 exemptions, the federal exemptions apply by default.

In your reasoned opinion, should Chapter 7 bankruptcy exemptions be uniformly applied in all states (by applying the federal bankruptcy exemptions in every state), or do you favor the idea of allowing the individual states to craft their own Chapter 7 exemptions?

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Chapter 18 Ethical Dilemma

Effective October 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) represents the most sweeping change to the United States Bankruptcy Code in almost forty years. Applauded by the credit card industry, which had lobbied the United States Congress for several years before its enactment, the BAPCPA makes it extremely difficult, if not impossible, for middle income Americans to file for Chapter 7 (“liquidation”) bankruptcy (Traditionally, the United States Bankruptcy Court used Chapter 7 for debtor rehabilitation, allowing the debtor to discharge pre-existing debts in return for his/her relinquishment of non-exempt property, and the non-exempt property was used to partially satisfy creditor claims.) Instead, the BAPCPA channels bankrupt debtors into Chapter 13 (“reorganization”) bankruptcy, with strict restrictions against debt forgiveness.

The BAPCPA has come under criticism, in part because it allows no exceptions for unanticipated medical expenses (a Harvard University study concluded that more than fifty percent of bankruptcies are attributable to unpaid medical bills,) loss of employment, or financial difficulties resulting from dissolution of marriage. BAPCPA critics argue that individuals so affected should be allowed to file Chapter 7 (“liquidation”) bankruptcy protection. Critics further contend that without such a change in the BAPCPA, the only real discharge for many debtors will be death.

From a legal standpoint, should the United States Congress rewrite the BAPCA and create exceptions for unanticipated medical expenses, loss of employment, or financial difficulties resulting from dissolution of marriage (and allow the bankrupt debtor to file for Chapter 7 bankruptcy protection?) From an ethical standpoint, should not our society “give these people a break?” Are not such people, and their financial situations, substantially different from consumers who “max out” their credit cards on “mad shopping sprees?”

(For reference, see http://www.cch.com/bankruptcy/Bankruptcy_04-21.pdf)

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Secured Transactions: Definitions• Secured Interest: Interest in personal

property/fixtures which secures payment/performance of obligation

• Secured Party: Person/party that holds interest in secured property

• Debtor: Person/party that has obligation to secured party

• Security Agreement: Agreement in which debtor gives secured interest to secured party

• Collateral: Property that is subject to security interest

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Collateral Under UCC

• Goods (Consumer goods, farm products, inventory, equipment, fixtures, and accessories)

• Indispensable Paper (Documents of title, negotiable instruments, investment property, and chattel paper)

• Intangibles (Accounts, goodwill, literary rights)

• Proceeds

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Creation (Attachment) of Security Interest

Requires:

• Written Agreement: Agreement that describes collateral and is signed by debtor

• Value: Item of value given from creditor to debtor

• Debtor Rights in Collateral: Rights of debtor over collateral

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“Purchase-Money” Security Interest

Definition: Interest formed when debtor uses borrowed money (e.g., buying on credit) from secured party to buy collateral

18-10

“Perfected” Security Interest

Definition: Security interest in which creditor has legally protected his/her claim to collateral

18-11

Methods of Perfection

• Perfection By Filing: Perfection of interest by filing financing statement with state agency

-Place and Duration of Filing: Generally, financial statement for consumer goods must be filed with county clerk; statement valid for five (5) years

• Perfection By Possession: Perfection of interest by holding collateral of debtor until loan is paid in full

18-12

Methods of Perfection (Continued)

• Automatic Perfection: Perfection that automatically occurs when retailer sells a consumer good

• Perfection of Movable Collateral: Collateral that moves to another state must be “re-perfected” after four (4) months

18-13

Perfection of Security Interests in Automobiles and Boats:

Note interest on certificate of title

18-14

Scope of Security Interest

• After-Acquired Property: Creditor has security interest in property acquired by debtor after security agreement made, if clause to this effect included in agreement

• Proceeds: Creditor automatically has rights to proceeds from sale of collateral for ten (10) days

18-15

Termination Statement

Definition: An amendment to a financing statement stating debtor has no further obligation to secured party

18-16

Priority Disputes• Occur when two corporations/individuals claim rights

to same collateral:

• Secured Versus Unsecured: Secured interest prevails

• Secured Versus Secured: Individual who perfected his/her interest first prevails

• “Purchase Money Security Interest” (PMSI) Conflicts: If party with perfected purchase money security interest disputes another party, PMSI party will almost always have right to collateral, regardless of when agreement perfected

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Priority Disputes (Continued)Secured Party Versus Buyer: If debtor sells his collateral, creditor may dispute with buyer over collateral

• Buyer in “Ordinary Course of Business”: If person buys collateral in ordinary course of business without realizing that it is collateral, he/she has right to good

• Buyers of Consumer Goods: If consumer does not know product secured, buyer’s new product is free from security interest

• Buyers of Chattel Paper and Instruments: If buyer purchases chattel paper and instruments, he/she is free from security interest

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DefaultOccurs when debtor fails to fulfill his/her loan; remedies include:

• Taking possession of collateral: If debtor defaults on loan, secured party can take possession of

collateral

-Disposition of Collateral: Creditor may sell, lease, or transfer collateral

-Retention of Collateral: Creditor may choose to keep collateral as payment of debt

• Proceeding to Judgment: Secured party may sue debtor for entire amount of debt, instead of dealing with collateral

18-19

Bankruptcy and Reorganization

18-20

The Purpose of The Bankruptcy Act And Its Goals

• Provide protection to creditors

• Provide opportunities for debtors to gain a “fresh financial start”

18-21

Bankruptcy Law Is A Matter Of Federal Jurisdiction

United States Constitution Article I, Section 8: “Congress shall have the power…To establish…uniform laws on the subject of bankruptcies throughout the United States”

18-22

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

(BAPCPA)

• Most comprehensive change to bankruptcy law in over 25 years

• BAPCPA Effect: More difficult for individual debtor to qualify for Chapter 7 (Liquidation) bankruptcy

18-23

Types of Bankruptcy Relief

• Chapter 7 Bankruptcy: Sale of debtor’s non-exempt assets by trustee, and distribution of money to creditors

• Chapter 9: Adjustment of municipalities’ debts

• Chapter 11 Bankruptcy: Reorganization of debtor’s financial affairs under supervision of bankruptcy court

• Chapter 12 Bankruptcy: Reorganization of family farmers’ debts

• Chapter 13 Bankruptcy: Reorganization of individual’s debts

• Chapter 15: Recognition of insolvency proceedings pending in foreign country, and relief for foreign debtors

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Bankruptcy Proceedings

• Each bankruptcy case begins with filing of bankruptcy petition

• Once petition filed, bankruptcy court grants automatic stay “freezing” creditor actions against debtor’s estate (i.e., creditors’ legal actions against debtor outside of bankruptcy court must cease)

18-25

Chapter 7 Bankruptcy: “Voluntary” Versus “Involuntary” Petition

• Voluntary Petition: Debtor files

• Involuntary Petition: Creditor(s) file, forcing debtor into bankruptcy

18-26

Chapter 7 Bankruptcy Terminology• Automatic Stay: Moratorium on creditor litigation against

debtor outside bankruptcy case

• Order of Relief: Court order allowing bankruptcy proceedings to continue

• Creditors’ Meeting: Meeting of all creditors listed in Chapter 7 schedules for liquidation

• Trustee: Party responsible for collecting debtor’s non-exempt, pre-filing assets, and liquidating property to cash that will be distributed among creditors

• Exempt Property: Property debtor allowed to retain pursuant to state and/or federal law

18-27

Federal Bankruptcy Exemptions

• Up to $15,000 for residence (“homestead” exemption)

• Interest in motor vehicle up to $2,400

• Interest, up to $400 for particular item, in personal and household goods (aggregate total limited to $8,000)

• Interest in jewelry up to $1,000

• $800 of any property debtor chooses (“wild-card” exemption)

18-28

Federal Bankruptcy Exemptions (Continued)• Up to $1,500 in “tools of trade” and professional

books

• Any unmatured life insurance contract owned by debtor

• Professionally prescribed health aids

• Interest in any other property up to $800, plus any unused part of homestead exemption up to $7,500

• Right to receive certain personal injury awards up to $15,000

• Retirement funds in IRA/SEP

18-29

Voidable Transfers

• Preferential Payments: Trustee can recover (and include in bankruptcy estate) payments made by insolvent debtor that give preferential treatment to one creditor over another, if debtor made such payments within 90 days of bankruptcy filing

• Fraudulent Transfers: Trustee can recover (and include in bankruptcy estate) transfers made with intent to defraud creditors, if debtor made such transfers within two years of bankruptcy filing

18-30

Classes of Priority Claims Among Unsecured Creditors

• Class 1: Alimony/child support

• Class 2: Court costs, trustee fees, attorney, fees, other costs associated with administration of bankruptcy estate

• Class 3: Unsecured claims in involuntary bankruptcy that arise through debtor’s ordinary business expenses, from date of filing petition to date of trustee appointment

• Class 4: Unsecured claims for unpaid wages, salaries, and commissions (up to $10,000 per individual) earned within 180 days of filing of petition

• Class 5: Unsecured claims for contributions to employee retirement plans (up to $10,000 per employee)

18-31

Classes of Priority Claims Among Unsecured Creditors (Continued)

• Class 6: Unsecured claims by farmers and fishers (up to $4,000) against grain operators of grain storage facilities/fish storage/processing facilities

• Class 7: Claims for deposits given to debtor in connection with property/services never given

• Class 8: Certain taxes and penalties due government

• Class 9: Claims in bankruptcies related to federal depository institutions

• Class 10: Unsecured claims for personal injuries and deaths caused by debtor’s operation of motor vehicle under influence of alcohol/drugs

18-32

Non-Dischargeable Debts Under The Bankruptcy Code

• Claims for back taxes/government fines within 3 years of bankruptcy filing

• Claims for liabilities against debtor for his/her obtaining money/property under false pretenses, false representation, or fraud

• Claims by creditors not listed on schedule and who did not have notification of bankruptcy proceedings

• Claims based on fraud, embezzlement, and larceny by debtor while he/she acting in fiduciary capacity

• Alimony, child support, and certain property settlements

18-33

Non-Dischargeable Debts Under The Bankruptcy Code (Continued)

• Claims of willful/malicious conduct by debtor that caused injury to another person/property

• Specific student loans, unless payment of loans would impose “undue hardship” on debtor

• Judgments against debtor for claims resulting from debtor’s driving under the influence

• Debts not discharged in previous bankruptcies

• Claims for money borrowed to pay tax to federal government that would be non-dischargeable

• Cash advances beyond $1,500 on credit card