New SJC Case on 93A Injury Requirement

The Massachusetts Supreme Judicial Court again took on a case addressing the injury requirement under the Massachusetts Consumer Protection Act ("93A"). In Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008) the Court found against the plaintiff on narrow, pleading-based grounds and in the course of doing so addressed the vexing issue of the harm required to state a claim under 93A. In Iannacchino , the putative class had purchased Ford vehicles with door latches that allegedly failed to meet federal safety standards. The defendants argued that even if the door latches were faulty, there could be no legally cognizable injury under 93A because the plaintiffs did not allege that any of the latches had actually malfunctioned--only that they had a higher propensity to do so. The plaintiff's argued that the vehicles were inherently less valuable than ones with compliant door latches. This is an argument with which the SJC agreed, stating: "If Ford knowingly sold noncompliant (and therefore potentially unsafe) vehicles or if Ford, after learning of noncompliance, failed to initiate a recall and to pay for the condition to be remedied, the plaintiffs would have paid for more (viz., safety regulation-compliant vehicles) than they received. Such an overpayment would represent an economic loss-measurable by the cost to bring the vehicles into compliance-for which the plaintiffs could seek redress under G.L. c. 93A, § 9." The SJC went on the impose a pleading requirement that plaintiffs allege noncomplicance with government standards to state a claim for diminution-of-value injury--at least in the vehicle context.

I do not see this holding providing much clarity for the muddled 93A injury jurisprudence outside of the context of products and warranties. I participated in the amicus brief committee supporting the plaintiffs in this case. It was interesting to see how many fact scenarios could be affected by the injury concept. Some plaintiffs--such as those with lead paint cases--are likely vindicated by the Iannacchino holding because it recognizes a diminution of value injury. However, in the debt collection context the situation is far more murky. For example, Massachusetts regulations prohibit creditors from calling consumers at home to collect a debt more often than twice in a seven day period. This requirement is routinely violated. However, if a plaintiff can not prove emotional distress or other damages with sufficient evidence, can a plaintiff or class of plaintiffs state a claim under 93A? If not, unlawful business practices are left undisturbed. If they can, the notion of injury must accommodate something along the lines of the "invasion of a right as injury". This is where many thought the law was under old case law (Leardi). However, it is hard to reconcile this idea with the SJC's Hershenow decision.

I believe that a debt collection case like the one above needs to be brought to better define the injury standard under 93A.

Decision Addressing Two Controversial Means Testing Issues

Massachusetts Bankruptcy Judge Feeney recently decided in re Mati, 2008 WL 2389234 (Bkrtcy.D.Mass.2008) in which she addressed two important means testing/disposable income issues for above-median-income Chapter 13 debtors. This case is one of many now revealing how substantial the changes are to Chapter 13 practice after BAPCPA, many of which are only now emerging after almost three years since the 2005 amendments.

First, the Court examined whether the debtor could exclude his 401(k) contributions from his disposable income and consequently exclude this income from his Chapter 13 plan payment. The Court put it this way: “The Court finds that the Debtor’s 401(k) contributions do not evidence bad faith under the totality of the circumstances in this case. The Debtor is merely taking advantage of what the law allows. Indeed, by excluding 401(k) contributions from property of the estate and expressly removing them from the definition of disposable income under section 1325(b), see 11 U.S.C. § 541(b)(7), Congress has implemented a policy of protecting and encouraging retirement savings.” Mati at 5.

The trustee had argued that doing what the statute allowed exhibited the debtor's bad faith. The Court recognized that doing what the law allows cannot be the sole basis for a bad faith finding, even if it yields what it deems as an inequitable result. Some courts have stated or implied that they would use “bad faith” to achieve a result consistent with pre-amendment practice. Mati lends important support to the contention that one is not acting in bad faith if they are doing no more or less than the law allows.

Next, the Court addressed the dispute over whether the debtor was entitled to the car “ownership” deduction on his B22C “mean test” form despite owning his car outright. The trustee argued that the allowance should only available to debtors who have a car loan or lease payment. The Court disagreed noting that the car ownership allowance appears in “applicable” and not the “actual” expense part of Section 707. The Court stated (quoting another court) that: “The use of fixed expense allowances levels the playing field for debtors. It is far less defensible from a policy perspective for a debtor with one car payment remaining at the time of filing to get the full standard deduction for the 60-month term of the Chapter 13 plan, while a debtor who paid off the secured debt before filing gets no deduction whatsoever.”

There is a split of authority throughout the nation on this BAPCPA provision. I believe the Court applied the law according to its terms. Some other courts appear to have strained to reach a desired result. Courts when faced with a statutory mandate to equalize certain expenses for consumer debtors should apply the law -–even when these provisions actually benefit debtors.

The bottom line is that going forward debtors in Judge Feeney’s session will be permitted to take the car ownership allowance even if they own their car outright.

New First Circuit Case on Claiming Exemptions

The U.S. Court of Appeals for the First Circuit recently issued an important opinion concerning the claiming of exemptions in bankruptcy cases. In re Barroso-Herrans, 2008 WL 1960365 (1st. Cir 2008) the Court heard the appeal of a Chapter 7 debtor who had attempted to exempt proceeds from two collection lawsuits by listing their value as $4,000 and claiming an exemption for this same $4,000. The trustee did not object to the exemption. The trustee subsequently reached a settlement with the third-party for $100,000 and sought the bankruptcy court's approval. The debtor claimed that he had effectively exempted the entire suits and their proceeds, and was re-vested with the lawsuit assets upon expiration of the period for objections to exemptions. The First Circuit disagreed an provided useful guidance for a debtor wishing to exempt an entire asset, regardless of its ultimate value, from his bankruptcy estate. The Court endorsed the use of terms such as "100% [of the property's value]," "unknown," "to be determined," "tba" and "$1.00" when expressing an asset's value to achieve this end. The Court stated that these terms are "red flags" to trustees and creditors that "put them on notice that if they do not object, the whole value of the asset-whatever it might later turn out to be-will be exempt."

The Court cited but disagreed with the view that simply listing the value of an asset in the same amount as its exemption is enough to bring the asset itself outside of the bankruptcy estate after expiration of the objection period.

NCLC Student Loan Resource Page

The National Consumer Law Center recently launched a new web site designed to help people facing student loan problems. Both student loan collection law (such as the availability of non-judicial garnishment) and the general non-dischargeability of student loans in bankruptcy make these loans some of the most difficult to deal with. The NCLC site is a good resource for people looking recover from student loan default.

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Unemployment Income and the Means Test

Judge Rosenthal recently held In re Munger, --- B.R. ----, 2007 WL 1810701 (Bkrtcy.D.Mass. 2007) that unemployment income is not included in the "current monthly income" for purposes of the means test.  The Court stated that the "way in which Congress chose to phrase the references in the sections supports the view that 'a benefit received under the Social Security Act' in § 101(10A)(B) was purposefully intended to be broader than 'a social security benefit.' 'Unemployment compensation' is included in this broader definition."

Bankruptcy and Trusts Decision

In the recent Massachusetts case of In re Grassa,--- B.R. ----, 2007 WL 756321 (Bkrtcy.D.Mass. 2007) Judge Somma held that the true owner of a house held in trust (and then transfered) was the bankruptcy debtor and trustee of the trust. The result of this will be that the house (which was transfered to the debtor's husband) will be recovered and sold by the trustee. This type of result can be avoided with the aid of legal counsel and careful planning. Real estate trusts and bankruptcy are often a toxic mix. The key in this case was that the debtor as trustee held the right to terminate the trust and transfer the trust asset (the house) to anyone she wanted -- including herself. This is what is known as a general power of appointment. Such a power makes the trust property subject to claims of the trustee's creditors because the trustee is considered the true owner under Massachusetts law.

Cadle Company Denied Debt Collection License in Massachusetts

The Cadle Company, a debt collection company well-known for hardball tactics, was recently denied a license to operate as a debt collection agency in Massachusetts. Cadle sued the Massachusetts Division of Banks in state superior court seeking to overturn the decision to deny it a license, but the superior court took the Division's side citing, among other things, the substantial evidence of complaints and outstanding litigation against Cadle.