Foreword to Fourth Edition

• Jurisdiction: United States

Foreword to Fourth Edition

Although bankruptcy veterans may find it hard to believe that it has been over 12 years since the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),⁸ for so many others in the practice now, as well as many new practitioners that may be drawn to this book, BAPCPA is likely all they have known. Of course, the law after BAPCPA has continued to develop through the courts, with the Supreme Court weighing in on several consumer bankruptcy issues in the intervening years since the last edition of this book.

In Law v. Siegel, the Court held that a chapter 7 trustee may not administer a debtor's otherwise-exempt property even when such a debtor has been engaged in fraudulent activity.⁹ Although the decision was limited to the unusual facts of a misbehaving debtor and the trustee's attempt to surcharge that debtor's exemptions, the language of the decision has continued to influence the analysis of bankruptcy judges across the country addressing broad concepts of good faith and whether certain rulings are authorized expressly within the provisions of the Bankruptcy Code.

Then in 2015, the Supreme Court upheld the rights of a debtor to his undistributed post-petition wages upon conversion from a chapter 13 case to a chapter 7 in Harris v. Viegelahn.¹⁰ Later that same year, the Court clarified that a chapter 7 debtor may not void a junior mortgage lien under 11 U.S.C. § 506(d), even if the balance of the senior mortgage lien exceeds the value of the debtor's home.¹¹

Beyond the academic debates about the extent of the impact of these and other Supreme Court decisions, recent changes to the Federal Rules of Bankruptcy Procedure in 2015 and 2017 have likely had the most significant and direct effect on the consumer bankruptcy bar since BAPCPA. In 2015, all but six of the then-existing official bankruptcy forms were revised as part of a national forms modernization project. Some forms were only slightly modified with, for example, a new form number¹² or the use of new terms within the form.¹³ Other forms underwent a complete overhaul, and some entirely new forms were established, such as the development of a separate voluntary petition for a nonindividual debtor.¹⁴

As this book goes to publication, a series of new Federal Rules of Bankruptcy Procedure become effective and contemplate the use of a national form plan. Although many districts have opted to use their own local form plans, the new rules do set...