Wednesday, April 27, 2005

Position - Wills and dying

I left home in 1977, I was 19. I had a will. It is 2005, I still have a will, it has been updated dozens of times. I wish to be cremated, no service, please, have a party and drink responsibly.
I do not want extraordinary measures, no life support if there is no meaningful brain activity or hope of recovery. No one in my family and none of my friends are unclear about the above.

Twice in my adult life I have known families that ignored the specific verbal and written desires of a loved one that was dying. I made very little comment about the Terri Shaivo case. Victoria appeared on local TV and national TV about a year ago on it.

If you don't have a will, get one. If you do not have a living will, get one. If you have not told EVERYONE exactly what your desires are, and put it in writing, do it.

The Republicans made a huge mistake getting involved in that case.

Saturday, April 23, 2005

Prediction !

"Bankruptcy filings have dropped significantly over the first weeks since
the enactment of the new bankruptcy reform law. It appears that a
large number of filings that are occurring are being done pro se. In
what may be another indication of the law's impact, clerks are
reporting a higher percentage of cases are being dismissed for
problems with the paperwork."

Wednesday, April 20, 2005

Position - Political Action

I hereby renounce my 'membership' in the Republican Party.

Representative Thomas Petri, Ron Kind, Paul Ryan, Mark Green and James Sensenbrenner: effective immediately I will lend whatever support I can to your defeat in the next election.

Senator Herb Kohl: effective immediately I will lend whatever support I can to your defeat in the next election you face.

I am sure all you gentlemen don't give a damn what I do, how unfortunate.

In a response to an email from me, Herb Kohl suggested that despite our disagreement on bankruptcy reform, he was sure we agreed on other issues. I responded:

"That we might agree on some issues is, based upon your position on bankruptcy reform, is a matter of coincidence, not principle."

President Bush: effective immediately, I will lend whatever support I can to the defeat of the Republican Party in the next mid-term election and the next general election.

Monday, April 18, 2005

Opinion - Short note on Credit Responsibility

Over the weekend, I drafted an email to my friend Tom over at BizzyBlog and I recalled something that did not get much attention during the debate on bankruptcy reform.

Those that supported the bill (certain Senators, Representatives and academics) continuously harped on the notion that people had to take responsibility for the debts they incurred. However, they miss (either intentionally or just plain stupidity) to acknowledge that in almost every situation that includes credit cards, the rules changed.

If you borrowed money from me and while paying it off, I double the interest rate, you would be highly pissed off. Especially if I did so because I found out you were late paying your light bill.

I have no problem with personal responsibility, but when one side gets to change the rules after the game has started, there is something rotten. Those that support reform have valid points, but what they are doing is bricking up a window because the flies are getting in the torn screen.



Saturday, April 16, 2005

Opinion - You are missing the point

Why are progressives, democrats and even some republicans on the losing side of arguments that, quite frankly, they should be winning?

The starting premise, by itself, is determining the battle. And we agree with it...hence, we are fighting a battle that starts in our own territory.

Three examples:

  1. Abortion. Starting premise: it should not be used as a means of birth control. Everyone agrees. Premise stated, premise agreed to, argument lost. Why? Because abortion IS birth control!
  2. Gay marriage. Starting premise: marriage is between a man and a woman. Everyone agrees. Premise stated, premise agreed to, argument lost. Why? Because men and women get married all the time!
  3. Bankruptcy reform. Starting premise: people should pay the bills THEY incur. Everyone agrees. Premise stated, premise agreed to, argument lost. Why? Because personal responsibility is the goal of everyone!
Three positions, three losses, all because at the very root of the argument, everyone agrees with the premise that starts the argument. It becomes an uphill battle.

Change the argument:
  1. Abortion. Abortion IS birth control, everything else is PREGNANCY control. Why does someone need the permission of a doctor to get PREGNANCY control? (some call that a prescription)
  2. Gay Marriage. Since when does a RELIGIOUS ceremony dictate PUBLIC policy? A marriage (today) is a LEGAL CONTRACT. Why does the government want to prevent two consenting adults from entering into a contract?
  3. Bankruptcy reform. What happens when a person loses their job? Debtor's prison?
I am yelling too much, sorry. When someone comments that you are avoiding the initial premise, simply say,

"I agree with your premise so what? The consequences of your position create a situation that is at the heart of the discussion, why do you wish to ignore those consequences? Isn't personal responsibility all about accepting the consequences?"

United Airlines can declare bankruptcy and void the contracts it has with it's employees. Nothing in the reform bill will change that. Does that mean when United employees start defaulting on debt taken out prior to their contract being voided they will get bankruptcy relief? Hell no. They have to take responsibility for their their bills.

I have been pro-choice for a long time....not just about abortion....about anything. I should have the inalienable right to CHOOSE. But that choice comes with consequences, and I should be able to hold those I CHOOSE to align with to the same rules we started out with.

So, give me 7 years. Allow me to reduce or eliminate my debt over the next 7 years and any new debt that I incur will be subject to the new bankruptcy bill, but any debt I have now will be under the old law for 7 years....

Hey, it's Biblical.


Tuesday, April 12, 2005

Rebuttal - Todd Zywicki (The Volokh Conspiracy)

Mr. Zywicki,

You won't see this, probably won't care what I have to say, but your position on Bankruptcy Reform has obviously been influenced by your long career in the field....three years was it? or less...Obviously you worked on the creditor side...

I work for an attorney, one that has been practicing in the area of bankruptcy for almost 15 years. She has worked for creditors and debtors, although the vast majority of her time has been serving debtors. I have worked for her for the last 7 years.

We see many clients and everyone of them has an inaccuracy on their petition. Some might consider it fraud, but the courts know better. Further, 'fraud' as you put it is not the exclusive territory of the debtors. In one memorable exchange with a mortgage lender and the Court, the mortgage lender exclaimed, "if we did that for everyone we would have to change the way we do business!". The Judge replied, "change the way you do business." The issue was in accounting for payments made by debtors within a Chapter 13, the lender was applying post petition payments to pre-petition arrears and accumulating late charges that of course would be demanded upon completion of the Chapter 13. That lender is being sued by numerous State's Attorneys.

Yet, you reference a claim by the FBI that as many as 10% of bankruptcy filings are fraudulent. We are not aware of any debtors being arrested in the two districts we work in at any time in the last 7 years. The total number of filings during that time is over 150,000. A case from this week is illustrative of the scrutiny the trustees in this district use: a client appeared at the 341 wearing a single earring (a man). The trustee noted no jewelry was listed on the schedules and required amendments to be filed. Does this constitute fraud?

The study you referenced - from SMR Research, (the one that you didn't buy but reference anyway) lists a number of egregious examples of 'fraud'. One point made was that many filings seemed to indicate that the debtors spent their last dime paying for their bankruptcy filing. Two points: first, most debtors scrape together the money to pay for a bankruptcy filing by selling something, borrowing from a friend or family member or buying groceries, filing the gas tank and using what is left to file...hoping to hold out to the next paycheck. Second, and if you had any REAL experience with bankruptcy and were an honest proponent of reform, you would tell your readers the following truth: a bankruptcy is a snapshot in time, one day in the financial life of the debtor. They might get a paycheck the next day, their refund in a week, but the petition is their financial condition on the day of filing, not the day before, not the day after. The current law recognizes this point and allows the trustee to 'look back' and see what brought the debtors to the point of filing and to look forward.

Every debtor must file a budget under the current law. They must list their income and expenses. The trustee considers the information and makes determinations. If they feel something is amiss, they question more and it can eventually lead to a court hearing in front of the Judge. I have seen the US Trustee for this region (Region 11: Ira Bodenstein) appear in a 341 hearing and question a debtor. Any suggestion that petitions are given a cursory glance is the position of someone that has never attended 341 hearings.

SMR Research MAY have found examples of abuse, but let me do a little analysis on their summary: Their sample was 327 cases. In those 327 cases, they found 30 case studies, roughly 10%. Yet, their sample was from 24 different districts...or about 13 cases per state! A representative sample? Statistically significant? 327 cases to represent almost 1.07 million cases....I like statistics too but come on. .0003% of filings? That is like calling the Presidential election after only 1,300 people 24 different states.

But let us see: 8 people had significant medical debt; 31 showed no cash on hand (although they might have had money in a checking account or savings account); 92 showed income greater than living expenses - but we don't know if their income was greater than their living expenses plus payments on secured and priority debt; but 235 of them showed income less than living expenses; the average unsecured debt was $21,576 which at 18% and minimum payments would take 38 years to pay off;

Questions: the average credit card debt is inflated by late fees, over- limit fees and the interest accumulating on those much of the $21,576 is that? Reports I have seen suggests that earnings from fees on credit cards has risen from 1.3 billion to 9.7 billion in the last 4 years.

From their website:

SMR offers Predictive Scoring Services as well for loan marketing and credit card collections.

Clients for various SMR products and services have included executives at a majority of the nation’s largest banks, thrifts, mortgage companies, life insurance companies, consumer finance companies, nonblank financial companies, retailers, and oil companies. More than 4,000 executives at more than 800 companies have been clients.

Gee, do you think they are going to find examples where credit card companies, loan companies, banks and consumer finance companies maybe had bad lending practices based on the products and services SMR provides to them???

Finally, the summary card debts are the most common BUT THEY ARE NOT THE LARGEST DEBT BY FAR (my emphasis)! Gee, no?! How about MORTGAGES! Cars? Boats!? SECURED DEBT!!! Almost all of which is usually reaffirmed!

Finally, Mr. Zywicki, the entire idea that 250 people each day are filing fraudulent bankruptcy petitions in the sense that it will have ANY impact on the outcome of a bankruptcy filing is on it's face, a lie.

Continue in your belief that debtors are scum and lenders are hapless victims. Because if every debtor is an irresponsible user of credit, every lender is an irresponsible provider of it....and using the bankruptcy law to protect the lender - you know, the one with 30 billion dollars to buy academics, senators and congressmen and creditor attorneys - while going after the ones with no net worth and less than $100 is the greatest INJUSTICE this President is likely to be remembered for.

Friday, April 08, 2005

Opinion - Sovereign Immunity

The States have in the last couple of years received a gift from the Supreme Court. They are exempt from virtually every legal means to enforce their compliance with federal law. I say virtually because they still can be hauled into court by the Federal Government....but everyone else just has to take it on the the gut.....up the ass....

If a State takes property away from you, you can not stop them in Federal Court. In general, unless you are real lucky and the situation starts with you in possession of the property, you will not be able to stop them in State court. If this sounds like a classic due process issue, you would be right, but a State can claim sovereign immunity and not even the federal courts will step in to help.

So, next time you think about doing business with a State, think again. States may have sovereign immunity but they don't act like sovereigns....they act like any other back corner thug that knows it has the 'police' in their pocket.

Thursday, April 07, 2005

Opinion - Credit Card Companies and Responsibility

Bankruptcy reform is predicated on the need to restore balance to a system of credit unbalanced by easy access to bankruptcy by consumers - bull shit.

As a business extending credit, do you not consider the ability to pay as a fundamental criteria before loaning? Do you not consider the overall financial condition of the borrower? Do you not consider the potential for filing bankruptcy by the borrower as one factor in determining an appropriate risk/rate?

What? You don't? Oh dear, let the government protect you from your stupidity. Better yet, let the government pay for the collection of funds you lent and can not collect because the law protects borrowers from predatory excessive fees, extreme interest rates and criteria not associated with the original loan....oh DOESN'T protect borrowers....well, that's ok, billions are being lost and that just has to stop.....hummm....billions are not being lost....well, then...less is being made than could be....there!

There is a reason the bankruptcy reform act is being referred to as BARF.