Pamela Foohey, Robert M. Lawless, Katherine M. Porter, and Thorne Deborah, 'No Money Down' Bankruptcy, 90 S. Cal. L. Rev. 1055 (2017).
This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer the law of chapter 13 over chapter 7.
Attorneys charge about $1,200 to file a chapter 7 bankruptcy; their debt-laden clients must pay this amount upfront. Attorneys charge about $3,200 to file a chapter 13 bankruptcy, but clients can pay attorney fees over time as part of their cases. Chapter 7 and 13 bankruptcies also differ in the relief achieved. Almost all chapter 7 cases end with the debtor receiving a discharge of debts. In contrast, only around one-third of chapter 13 cases end in discharge.
This Article exposes the increasingly prevalent phenomenon of debtors paying nothing in attorneys’ fees to file chapter 13. New data from the Consumer Bankruptcy Project, our original empirical national study, suggest that these “no money down” consumers are similar to those who use chapter 7. However, because they cannot afford to pay their attorneys up front, these “no money down” bankruptcy debtors suffer. They pay $2,000 more and have their cases dismissed at a rate 18 times higher than if they had filed chapter 7.
The two most significant predictors of whether a consumer files a “no money down” bankruptcy are a person’s place of residence and a person’s race. We could not identify legitimate ways that these factors correlate with debtors’ needs for the substantive legal benefits of chapter 13. “No money down” bankruptcy can be a distortion in the delivery of legal help. We suggest reforms to how attorneys collect fees from consumer debtors that will reduce the potential conflict between clients’ interests and attorneys’ interests. The reforms will deliver access to justice and improve the functioning of the bankruptcy system.