Home Op-Ed How the NCBRC Protects the
Integrity of the Bankruptcy System
How the NCBRC Protects the Integrity of the Bankruptcy System
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How the NCBRC Protects the
Integrity of the Bankruptcy System

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How the NCBRC Protects the Integrity of the Bankruptcy System

Each year, millions of individuals and families across the country struggle to pay their bills. Often financial distress follows on the heels of other unanticipated events such as job loss, divorce, substantial out-of-pocket medical expenses and natural disasters. Bankruptcy may provide these debtors with the opportunity for a fresh start. If you are thinking of declaring bankruptcy then you might want to get yourself a lawyer, why not take a look at using someone like this bankruptcy attorney san diego. The Bankruptcy Code grants financially distressed debtors certain rights that are critical to the proper functioning of the bankruptcy system as a whole. However, bankruptcy debtors, lacking both financial resources and exposure to the bankruptcy system, often do not have the ability to protect the integrity of the bankruptcy system and preserve the bankruptcy rights of consumer debtors more generally. The National Association of Consumer Bankruptcy Attorneys’ Amicus Project was created to fill that vacuum, and in 2010 the NACBA Board founded the National Consumer Bankruptcy Rights Center (NCBRC) to further the mission.

NCBRC provides assistance either by working directly with debtors’ attorneys or by filing amicus briefs in courts throughout the country. In cases with the potential to affect consumer debtors throughout the country, NCBRC’s amicus curiae briefs address broader issues so that the legal effects of courts’ decisions do not depend solely on the parties directly involved in the case. Since its founding NCBRC has filed more the 40 amicus briefs in courts throughout the country. Recent examples of NCBRC Amicus Briefs:

Protecting Social Security Benefits: Over the past two years, NCBRC has filed amicus briefs in four cases seeking to protect debtors’ social security benefits from unsecured creditors in a bankruptcy case. Social security benefits have long been off limits to unsecured creditors outside of bankruptcy, and in the 2005 amendments to the Bankruptcy Code Congress specifically provided protection for debtors’ social security benefits in chapter 13 cases. Nevertheless chapter 13 trustees sought to collect and distribute debtors’ social security income to unsecured creditors. NCBRC filed amicus briefs in Anderson v. Cranmer, 697 F.3d 1314 (10th Cir. 2012), Beaulieu v. Ragos, 700 F.3d 220 (5th Cir. 2012); Drummond v. Welsh, 711 F.3d 1120 (9th Cir. 2013), and Mort-Ranta v. Gorman, 721 F.3d 241 (4th Cir. 2013). In each case, the court of appeals adopted the position taken by NCBRC.

Preserving Earned Income Tax Credit Exemption: The Earned Income Tax Credit is a refundable tax credit available to low income households that have qualifying dependent children. Several states have enacted exemption statutes that place EITC refunds beyond the reach of debtors’ creditors. In Kansas, chapter 7 trustees sought to collect and distribute EITC refunds from low-income debtors, and argued that the Kansas state law exemption for such refunds was unconstitutional. In the first case challenging the EITC exemption, NCBRC filed an amicus brief in the bankruptcy court, and then again on appeal at the Bankruptcy Appellate Panel for the Tenth Circuit. In re Westby, 486 B.R. 509 (B.A.P. 10th Cir. 2013). Both courts held that the Kansas EITC exemption was constitutional. NCBRC also filed amicus briefs in two subsequent appeals presenting the same issue. In re Lea, 2013 WL 4431267. The District Court in these consolidated appeals also held that the Kansas EITC exemption was constitutional.

Defending Debtor’s Homestead Exemption: NCBRC enlisted the pro bono assistance of an experienced appellate team to file an amicus brief in the pending Supreme Court case of Law v. Siegel, No. 12-5196. The use of exemptions to preserve the debtor’s basic needs, including his or her homestead, has a history pre-dating the U.S. Constitution and underpins the fundamental principle of the debtor’s fresh start. For that reason, Congress has specified the limited circumstances under which otherwise exempt property, such as a homestead, may be used to pay creditors’ claims. In this case, the question is whether the bankruptcy courts may use their “equitable powers” to expand these limited circumstances.

In addition to amicus briefs, NCBRC assists consumer debtor attorneys on cases of national importance by reviewing briefs, discussing legal strategy, and helping counsel navigate the appeals process.

NCBRC also maintains a website that has become an invaluable resource for debtors’ counsel and those concerned with preserving bankruptcy rights. The site offers detailed and up-to-date content including:

  • A blog summarizing results of bankruptcy appeals and the significance for future debtor appeals. An average of 10 cases are reviewed each month;
  • A Resource Library of Amicus Briefs available by Category and Code Section with the capacity for attorneys to respond and comment, sharing information on similar cases in other states or suggesting legal strategies;
  • Important Links to other related national organizations including the National Consumer Law Center and to the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.

NCBRC depends on the generous support of the legal community in order to fulfill its mission of preserving the rights of consumer debtors and protecting the integrity of the bankruptcy system.

If you would like NCBRC to consider filing an amicus brief on your behalf, please visit www.NCBRC.org for more information.

About the Author

Tara Twomey is of counsel to the National Consumer Law Center in Carmel, Calif., and the Amicus Project Director for the National Association of Consumer Bankruptcy Attorneys. She has also served as a lecturer in law at Stanford Law School, Harvard Law School and Boston College Law School. Ms. Twomey is a former clinical instructor at the Hale and Dorr Legal Services Center of Harvard Law School, where her practice focused in part on sustainable homeownership for low- and moderate-income homeowners, including foreclosure prevention and chapter 13 bankruptcy.

Ms. Twomey is a contributing author of several books published by the National Consumer Law Center, including Foreclosures: Defenses, Workouts and Mortgage Servicing. She also contributes to the Collier Bankruptcy Practice Guide. Ms. Twomey earned her J.D. from Boston College Law School summa cum laude and received her undergraduate degree from the University of California, San Diego. After law school, she served as a law clerk for Chief Justice Herbert P. Wilkins of the Massachusetts Supreme Court. Subsequently, she received a two-year Skadden Fellowship to work at the Legal Services Center of Harvard Law School.

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Dan LaBert
Dan LaBert
Dan is the Executive Director of the National Association of Consumer Bankruptcy Attorneys. He oversees the daily operations of NACBA and develops strategic direction for the organization in conjunction with the board of directors. NACBA is the only national organization dedicated to serving the needs of consumer bankruptcy attorneys and protecting the rights of consumer debtors in bankruptcy.

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