Not Just Another Rodeo: Staying at the Top of Your Game
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Presented by: 2018 Monday, October 29 11:00 AM - 12:30 PM | CC Room 006ABC Not Just Another Rodeo: Staying At the Top of Your Game 92nd Annual National Conference of Bankruptcy Judges October 28–31, 2018 San Antonio, TX Not Just Another Rodeo: Staying At the Top of Your Game Hon. Robert D. Berger, U.S. Bankruptcy Court, D. Kan. Hon. Lori S. Simpson, U.S. Bankruptcy Court, D. Md. Hon. Lisa Ritchey Craig, U.S. Bankruptcy Court, N.D. Ga. Not Just Another Rodeo: Staying At the Top of Your Game Table of Contents 1. Student Loan Debt and Bankruptcy. By Hon. Robert D. Berger (U.S. Bankruptcy Court, District of Kansas) .....................................................................................................................1 2. Judicial Estoppel. By Hon. Lori S. Simpson (U.S. Bankruptcy Court, District of Maryland) ...................................................................................................................................7 3. Social Media Ethics Issues in Consumer Bankruptcy (PowerPoint). By Hon. Lisa Ritchey Craig, U.S. Bankruptcy Court, Northern District of Georgia) .................................................15 4. Appendix1 a. Understanding LinkedIn Privacy Settings and Closing LinkedIn and Facebook Accounts ................................................................................................................55 b. In re Emery, 799 S.E.2d 295 (S.C. 2017) ..............................................................59 c. State Bar of California, Formal Opinion No. 2012-186 ........................................68 d. Texas Disciplinary Rules of Professional Conduct, Rules 7.02–7.05 ...................74 e. Georgia Rules of Professional Conduct, Rules 7.1–7.4 .........................................93 f. California Rules of Professional Conduct, Rule 1-400 ........................................100 g. John Browning, Why Can’t We Be Friends? Judges’ Use of Social Media, 68 UNIV. MIAMI L. REV. 487 (2014)2 ........................................................................103 h. Browne v. Avvo, Inc., 525 F. Supp. 2d 1249 (W.D. Wash. 2007)3 ......................151 1 See also Debra Cassens Weiss, Lawyer says judge’s Facebook comment about being ‘tortured’ by trial lawyer was just a joke, ABA JOURNAL (July 11, 2017, 4:47 PM), http://www.abajournal.com/news/article/ lawyer_says_judges_facebook_comment_about_being_tortured_by_trial_lawyer_wa; Stephanie Francis Ward, Yelp sues bankruptcy law firm, alleging it posted fake positive reviews, ABA JOURNAL (Sept. 10, 2013, 7:20 PM), http://www.abajournal.com/news/article/yelp_sues_bankruptcy_law_firm_alleging_it_posted_fake_postive_reviews. 2 Reprinted with permission from the University of Miami Law Review. 3 See also Hassell v. Bird, Op. No. S235986 (Cal. Ct. App., July 2, 2018) (In this case, a disgruntled client wrote negative Yelp reviews about her personal injury attorney. The attorney sued the client and Yelp to get the reviews taken down. Ultimately, the California appeals court determined that 47 U.S.C § 230 applies and Yelp may not be ordered to remove negative reviews.), http://www.courts.ca.gov/opinions/documents/S235968.PDF; Great Wall i. In re Skinner, 758 S.E.2d 788 (Ga. 2014) ............................................................158 j. Guide to Judiciary Policy, Vol. 2B, Ch. 2, Committee on Codes of Conduct, Advisory Opinion No. 112: Use of Electronic Social Media by Judges and Judicial Employees ..............................................................................................161 k. Am. Bar. Assoc., Formal Op. 462: Judge’s Use of Electronic Social Networking Media (Feb. 21, 2013) ..........................................................................................168 l. Laurel A. Rigertas, How Do You Rate Your Lawyer? Lawyers’ Responses to Online Reviews of Their Services, 4 ST. MARY’S J. ON LEGAL MALPRACTICE & ETHICS 242 (2014)4 ..............................................................................................172 Medical, P.C. v. Levine, No.0157517/207 (N.Y. Ct. App., filed Aug. 31, 2017) (In this case, a gynecologist sued a patient who posted a one-star Facebook review for $1 million in damages. Great Wall was sanctioned for filing this lawsuit.), available at https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-31842-u.html. 4 Reprinted with permission from St. Mary’s Law Journal. STUDENT LOAN DEBT AND BANKRUPTCY Hon. Robert D. Berger United States Bankruptcy Judge District of Kansas I. Introduction The discharge of student loans in bankruptcy is a difficult, some would say near impossible, task. Below are factors to consider when seeking a student loan discharge in a bankruptcy proceeding. II. Types of Student Loans a. Federal A. U.S. Department of Education issues or issued several types of federal loans: a. Direct Loans; b. Federal Family Education Loans; c. Perkins Loan Programs, which include i. Stafford; ii. PLUS; and iii. Perkins Loans. B. All federal loans typically offer various ways to cure defaults, income-based repayment options, and/or the availability of an administrative discharge to certain qualifying individuals. b. Private Student Loans A. Issued by private banks and lending institutions. B. Typically have no income-based repayment options, forgiveness options, or other mandated means for curing defaults. 1 III. Discharge in Bankruptcy a. Governing Statute For most student loans, Title 11 U.S.C. § 523(a)(8) governs the discharge of student loan debt. That section provides, in relevant part: (a) A discharge under section ... 1328(b) of this title does not discharge an individual debtor from any debt— (8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for – (A) (i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit… ; or (ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or (B) any other educational loan that is a qualified education loan… incurred by a debtor who is an individual... (Emphasis added.) b. Notable Procedural Hurdles (i) Debtors seeking a § 523(a)(8) undue hardship discharge are required to file an adversary proceeding under Fed. R. Bankr. P. 7001(6).1 The Complaint and Summons must be served in the manner for service set out in Rule 7004. (ii) In a Chapter 13 case, debtors should not seek an undue hardship discharge under § 523(a)(8) until “after completion by the debtor of all payments under the plan.”2 1 But see United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 262 (2010) (finding that “[a]lthough the Bankruptcy Court’s failure to find undue hardship was a legal error, the confirmation order is enforceable and binding on [the creditor] because it had actual notice of the error and failed to object or timely appeal.”). Unless otherwise noted, all references to Rules herein are to the Federal Rules of Bankruptcy Procedure. 2 § 1328(a). See also Bender v. Educ. Credit Mgmt. Corp. (In re Bender), 368 F.3d 846 (8th Cir. 2004) (stating that undue hardship should be determined at the time of discharge, not at commencement of the § 523(a)(8) proceeding); Raisor v. Educ. Loan Serv. Ctr. (In re Raisor), 180 B.R. 163 (Bankr. E.D. Tex. 1995) (dismissing as premature a student loan dischargeability action filed seven months after the Chapter 13 plan, but three years before the plan’s scheduled completion). 2 c. Standard for Discharge To determine what constitutes “undue hardship,” most circuit courts3 employ some version of the three-part test set forth in Brunner v. New York State of Higher Education Services: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.4 The Brunner test has been refined by some courts. For example, the Tenth Circuit explicitly cautioned that the Brunner test should not be applied in a formulaic way, but instead “to better advance the Bankruptcy Code’s ‘fresh start policy,’” and applied in a manner “such that debtors who truly cannot afford to repay their loans may have their loans discharged.”5 The Tenth Circuit has clarified that adoption of the Brunner test does not “rule out consideration of all the facts and circumstances” surrounding the case.6 (i) First Prong – Ability to Maintain Minimal Standard of Living The Court must “evaluate the debtor’s current financial situation” and “take into consideration whether the debtor has demonstrated any reason why he or she is unable to earn sufficient income to maintain him/herself and dependants while repaying the student loan debt.”7 This first prong requires Debtors to demonstrate “more than simply tight finances.”8 3 Including the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits. The Eighth Circuit adopted a totality of the circumstances test, In re Long, 322 F.3d 549 (8th Cir. 2003); and the First Circuit has so far declined to adopt either test, In re Nash, 446 F.3d 188, 190 (1st Cir. 2006). 4 Educ. Credit Mgmt. Corp. v. Polleys (In re Polleys), 356 F.3d 1302, 1307 (10th Cir. 2004) (quoting Brunner, 831 F.2d 395, 396 (2d Cir. 1987)). 5 Id. at 1308–09. 6 Id. at 1309. 7 Alderete v. Educ. Credit Mgmt. Corp. (In