Those of you who followed the road to passage of BAPCPA will recall Prof. Zywicki was the one who said that the bankruptcy reform bill was perfect and that not one letter needed to be changed. In light of the litigation that has ensued over just about every comma, period and semicolon I would suggest that Prof. Zywicki was perhaps just a tad overzealous.

Alabama essentially comes out and tells counsel to look the other way when faced with a document laden with metadata, to essentially keep the wrapper on the candy bar.  This is a stark contrast to the usual scope of the attorney-client privilege, which imposes on the attorney a duty to keep the confidences.  Disclosing counsel is given a pass on its ethical duties regarding the secrets of clients, and the burden is passed on to a third party.

It’s important to understand just how important metadata is.  I blogged on the topic of metadata on one of my other sites, and you can access the post to review on your own.  But suffice to say metadata is the hidden code within a word processing document, the stuff you type and then delete before sending it along to a recipient.

How useful is it?  I was once in negotiations with a creditor on a stay violation and received a formal offer of settlement.  On running a program to detect metadata I found out that my opponent had significantly greater settlement authority and was trying to lowball me.

And lest you chide me for doing evil things, bear in mind that the ABA has issued a formal opinion giving the thumbs-up to a review of metadata.

A former computer hacker by the name of Gregory D. Evans has launched a new service to combat call evasion. SPOOFEM.COM is an online program that allows anyone to change the number that appears on another person’s caller ID. It also includes features like voice disguising, call recording, and text messaging from a different number.

SPOOFEM.COM callers can change their Caller Identification Number (CID) so that their number will show up differently on another person’s caller ID. Other features include spoofing text messages, which shows a different number or name of the person sending the text. Voice changing does just that, changes your voice. Users have the choice of changing your voice to male or female. The conversation can be recorded and then emailed.

I’m wondering whether the very use of this system by a creditor or debt collector would violate the Fair Debt Collection Practices Act which prohibits the use of deceptive means to collect a debt. Even outside of the context of the US Bankruptcy Code, it seems that this would be a prohibited act. Get a spoofed call, sue “John Doe” and subpoena the records of the spoofing company to determine the identity of the actual caller.

I’ll keep you posted on how this plays out.

The truth is that consumer Chapter 7 and Chapter 13 bankruptcy is largely an administrative matter. Sure, bankruptcy cases are filed in the U.S. Bankruptcy Court but that’s pretty much where the court-part ends. In a standard Chapter 7 case the debtor (in other words, the person filing for bankruptcy) goes to a brief meeting with a trustee and never sees a judge. In fact, the U.S. Bankruptcy Code specifically states that the judge is not allowed to preside over this meeting, which is called a “Meeting of Creditors.”

The Meeting of Creditors is designed to determine whether the debtor has disclosed all of his or her assets and liabilities, and to inquire as to the assets that can be liquidated for the benefit of creditors. Creditors are allowed to show up and ask questions, but that seldom happens. With so many bankruptcy cases filed, creditors simply could not afford to send a representative to every Meeting of Creditors.

In Chapter 13 cases (the ones in New York, at least) there is one court hearing, called a Hearing on Confirmation. This is presided over by the judge, but it’s just a simple hearing to make sure that the Chapter 13 Plan is adequate under the law.

Most consumer bankruptcy lawyers got into the field because they knew it didn’t require any courtroom work. No trials, nothing like Law & Order or Perry Mason, just some administrative work and a thorough knowledge of the Bankruptcy Code.

But sometimes, people get sued when they go into bankruptcy. Maybe they incurred a debt that a creditor claims should not be discharged, maybe an asset transfer is claimed to be fraudulant . . . in fact, there are a host of reasons why someone would get dragged into a court battle.

There are other times when someone who files for bankruptcy may have the right to drag someone else into court. Creditors violate the automatic stay and discharge injunction, a Proof of Claim in a Chapter 13 case may be improper, a mortgage servicer may have improperly tagged bogus charges onto a loan . . . once again, the list goes on and on.

If you’re a consumer bankruptcy lawyer chances are good that you don’t want to bring anyone into court. And if your client is sued in bankruptcy, you propbably don’t want to handle the case. If you’re the consumer, you may find yourself without a lawyer who is willing and able to help you out in a tough spot.

This site is designed to help give a flavor of the types of bankruptcy litigation that exist, how to spot a problem before it blows up in your face, and an introduction to how I may be able to help. If you have a problem, call me in my office at 212-785-1136 x704.