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RELIGION AND BANKRUPTCY
Bankruptcy has its roots in religion. No one should avoid dealing with debt because of misunderstandings about religious or ethical considerations. It is NOT shameful to seek relief from crushing debt!
…Forgive Us Our Debts…
by O. Max Gardner, Attorney at Law
Dalton Camp proclaimed several years ago that, “having lost its value, money may no longer be the root of all evil; credit having taken its place.” This statement demonstrates the paradox of modern day religion and debt—should our reaction be one of condemnation or one of compassion? Since many recent respected studies have shown that the average American family is only three weeks away from personal bankruptcy, and new legislation that will deny bankruptcy relief to hundreds of thousands of American families is now the law [as of 2005], it is time to revisit what the Bible teaches us about debt.
The Bible makes it clear that people are generally expected to pay their debts. Leviticus 25:39. No one will — or should — advance any argument against this general proposition. However, this moral and legal obligation to pay just debts must be balanced by such considerations as the need for compassion and the call to cancel debts at periodic intervals. The Biblical basis for such considerations is based on the sabbatical and Jubilee years. The secular basis arises out of the Constitutional [provision] that Congress [may] enact uniform laws allowing businesses and consumers to cancel and to restructure debt obligations. This Biblical support for the legal right to cancel debt is enforced by the even stronger Biblical doctrine that prohibited interest of any amount rather than just usury or excessive interest.
Within the areas of economic justice and stability, the Old Testament is replete with examples of compassionate treatment of the poor, and with preservation of the family unit. These goals were superior to the material concerns of repayment of debt. For instance, Deuteronomy 15:7-10 is particularly forceful. It provides as follows: “If there is a poor man among your brothers . . . do not be hardhearted or tightfisted toward your poor brother. Rather be open-handed and freely lend him whatever he needs. Be careful not to harbor this wicked thought: ‘The seventh year, the year for canceling debts, is near,’ so that you show ill toward your needy brother and give him nothing. He may then appeal to the LORD against you, and you will be found guilty of sin. Give generously to him and do so without a grudging heart; then because of this the LORD your God will bless you in all your work and in everything you put your hands to.”
The cancellation of debt in the Old Testament was accomplished at legislated intervals. Deuteronomy 15:1-2 clearly provides for such legislative release with the following language: “At the end of every seven years you shall grant a release. And this is the manner of the release: every creditor shall release what he has lent to his neighbor, his brother, because the Lord’s release has been proclaimed”. Under this Biblical model, the debtors’ payment or non-payment of debts was not in question. The debtors may or may not have been culpable for their debts. It was a strict model with no “means test” or detailed analysis of every debt.[1] And, while Old Testament lenders were admonished to be merciful, debts were canceled every seven years whether they liked it or not. The Old Testament model can therefore be legitimately applied to modern day bankruptcy laws. The principle is that, while taken seriously, debt can be canceled to achieve some higher purpose—such as the preservation of the family unit. It also should be noted that Deuteronomy 15:12-13 provides that slaves should be freed every seven years creating an interesting analogy between the creditor-debtor and the master-servant relationship.
The Bible on Interest
The Biblical use of the term “usury” corresponds to our modern word interest rather than to the notion of “excessive interest” to which we generally apply the term usury today. Only a small number of us would seriously question the morality of profiting from a loan at normal interest rates. However, the Talmud quotes an ancient rabbi as saying: “It is better to sell your daughter into slavery than to borrow money on interest.” The Lord only knows what this same rabbi would say today if confronted with credit cards bearing interest rates of 34.99% and higher and with some “pay day” lenders demanding annual rates in excess of 2,000%.
The Biblical doctrine of usury rests primarily on three texts: Exodus 22:25; Leviticus 25:35; and Deuteronomy 23:19-20. Exodus and Leviticus prohibit loans of money or food with interest to a needy brother or sister or even a resident alien. Deuteronomy forbids taking interest from any person. Other Books of the Bible underline the importance of this prohibition on interest. For example, Psalm 15:5 characterizes a righteous man as one who, among other things, “lends his money without usury.” Both Ezekiel 22:12 and Nehemiah 5:0-11 condemn lending money with interest, especially to the poor. And Ezekiel 18:13 list the taking of interest among sins worthy of death.
The prohibition on interest is based on God’s covenant with Israel. The rule is founded upon the compassionate treatment of various oppressed groups: the resident alien; the widow; the orphans; and the poor. Exodus 22:25-27 states the law in explicit terms: “If you lend to one of my people among you who is needy, do not be like the money lender; charge him no interest. If you take your neighbor’s cloak as a pledge, return it to him by sunset, because his cloak is the only covering he has for his body. What else will he sleep on? When he cries out to me, I will hear, for I am companionate.” Leviticus 25:35-37 provides that “If one of your countrymen becomes poor and is unable to support himself among you, help him as you would an alien or a temporary resident, so that he can continue to live among you. Do not take interest of any kind from him, but fear your God, so that your countryman may continue to live among you. You must not lend him money at interest or sell him food at profit.” Finally, Deuteronomy 23:19-20 provides: “Do not charge your brother interest, whether on money or food or anything else that may earn interest.”
Jesus clearly had these Biblical principles in mind when he admonished the “money changers” and removed them from God’s house, the sacred Temple. In John 2:14 Jesus “poured out the changers of money and overthrew the tables”. Jesus, in fact, was always true to the principles underlying usury and debt forgiveness and the notion of the importance of placing love and compassion above greed and wealth. In Luke 6:34-35 Jesus said: “And if you lend to those from whom you hope to receive, what credit is that to you? Even sinners lend to sinners, to receive as much again. But love your enemies and, do good, and lend, expecting nothing in return, and your reward will be great, and you will be sons of the Most High; for he is kind to the ungrateful and the selfish.” The followers of Jesus were to be concerned with the welfare of others, even when met with hatred and abuse.
The consistent teaching of both the Old and New Testaments is that compassion, mercy and justice are to override purely economic concerns, such as loans. Religious people are to be gracious to all, even debtors. Jesus said that God does cause the rain to fall on the just and the unjust, and in Mark 10:25 he said that “[i]t is easier for a camel to go through the eye of a needle, than for a rich man to enter in to the kingdom of God”. And in Luke 16:9 he said: “I tell you, use worldly wealth to gain friends for yourselves, so that when it is gone, you will be welcomed into eternal dwellings”, and to “forgive and ye shall be forgiven” Luke 6:37.
The compassion of the scriptures, including the setting aside of legitimate rights of lenders, was typical of economic relationships in the economy of early Judeo-Christian societies. The central theme is one of stability—a stable society with a guarantee of economic security to each family. Wealth was viewed as a blessing from God (Deuteronomy 8:11-18, 28). This blessing resulted from obedience and was based on God’s compassion. The tithing for the poor, the gleaning laws, the year of the Jubilee, were all tangible ways that Israelites could show compassion for each other and honor God by following His law. Beyond income-maintenance programs, the Biblical Law provided a permanent mechanism—such as the Sabbatical year and Jubilee—to ensure that temporary misfortune barred no family from full participation in economic life.
The New Bankruptcy Law
The current bankruptcy law passed by Congress and signed into law by the President in 2005 lacks any compassion for the poor, makes no redress to the modern day money changers who shamelessly peddle plastic at rates that would draw the Holy wrath of God himself; provides no relief but only additional misery to the families saddled with thousands of dollars in medical bills; and most importantly severely undermines the economic and social stability of the average American family. These Americans are like the farmers of the Old Testament who proclaimed to King Nehemiah, “We have had to borrow money to pay the king’s tax on our fields and vineyards. Although we are of the same flesh and blood as our countrymen and though our sons are as good as theirs, yet we have to subject our sons and daughters to slavery. Some of our daughters have already been enslaved, but we are powerless, because our fields and our vineyards belong to others”. Nehemiah 5:3-5. Nehemiah responded to his people and ordered to “let the extracting of usury stop! Give back to them immediately their fields, vineyards, olive groves, and houses and also the usury you are charging them…”. Nehemiah 5:11. It is time for our elected Representatives in Washington to follow the example of the Holy Scriptures and to respond in kind by repealing the current Bankruptcy Bill and by not taking away power from the powerless and eliminating relief for the suffering.
Based on an article by O. Max Gardner, III, Esquire
([email protected])
Used with permission.
[1] This passage is similar to many other Old Testament commandments including Deuteronomy 5:17’s “Thou shall not kill” which provides no specifics and creates no hierarchy of culpability.

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The post Forgive Us Our Debts appeared first on Law Office of D.L. Drain, P.A., Arizona Bankruptcy Lawyer.

The United States District Court of the Northern District of Florida landmark decision in Brenner, et al. v. Scott, etc., 999 F.Supp. 2d 1278 (2014), regarding the constitutionality of Florida's restrictions on marriage, makes reference to a U.S. Supreme Court case that was disposed of by  "summary disposition."  The Court stated that US Supreme Court “summary dispositions” bind lower federal courts – unless “doctrinal developments in the Supreme Court undermine the decision.” Aspects of summary disposition are addressed in Alex Hemmer's 2013 informative article, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 Yale L.J. Online 209 (2013). 
Summary Dispositions
"Summary dispositions" are provided for by Supreme Court Rule 16 which provides for the "disposition of a petition for a writ of certiorari." It provides that after the Court considers the certiorari briefs (which are shorter than the later full merits briefs), it "will enter an appropriate order" and that the "order may be a summary disposition on the merits."

Hemmer notes that this rule does not explain what a summary disposition is, when or  why such an order is appropriate, and what precedential value it holds. He explains that such "questions are left to the Court to work out in practice" and that summary disposition orders play an "ambiguous role" and have "amorphous boundaries."

Three Types of Summary Dispositions
Hemmer explains that "[o]ver the past forty years, the Court has relied on three common, if controversial, forms of summary disposition" as follows:

• summary orders, granting the certiorari petition and affirming or reversing the judgment without explanation (generally per curiam - "by the Court" or unsigned) 
• summary opinions, granting the certiorari petition and affirming or reversing the judgment with an explanation, usually with a brief discussion of the facts and issues involved (generally per curiam) 
• reconsideration orders - "grant, vacate, and remand" ("GVR"), court grants the certiorari petition, vacates the judgment below and remands the case to the lower court for "reconsideration". 

Merits or Non-Merits DecisionsProfessor Vikram Amar explains in a blog post, that these summary dispositions,  are based "merely on the certiorari-stage briefs, without the benefit of arguments or merits briefings." But he addes that some types of summary dispositions do reach the merits of the appeal. 
Amran explains that in GVR dispositions, the Court "is formally not weighing in on the merits but merely giving the lower court a first opportunity to apply the intervening decision." But that the some types of summary dispositions do reach the merits of the appeal. Hemmer reviews that technically a GVR does "not amount to a final determination on the merits" but rather merely indicates that the Court believes that upon reconsideration, there is a "reasonable probability" that the lower court would reject a legal premise upon which it relied.
Summary Disposition in the Warren, Burger, and Robert CourtsHemmer reviews the extent and nature of summary disposition used in the Warren Court (alot of summary dispositions with little explanation), the Burger Court (little summary orders, alot of GVRs), and the present Roberts Court (use of summary orders and GVR, but with expansion of use in a managerial capacity).   Hemmer opines that the Roberts Court's expansion of use is not only where the decision below did not rely on changed legal premises or present clear error but for the court below to "consider arguments or case law that they could have relief on but did not"- that is "in search of errors."  He notes Justice Scalia's lack of favor of such practice - "GVR-in-light-of-nothing."  
Capacities of Appellate CourtsHemmer and the authors he references explain that generally courts of appeals can have two capacities: "a lawmaking capacity in which they" "announce, clarify, and harmonizes the rules of decisions" and "an error-correcting capacity, in which they" "determine if prejudicial errors were committed" in "applying those rules to facts."  
Hemmer cites an author who stated that the Supreme Court "is not, and has never been, primarily concerned with the correction of errors in lower court decisions."  Hemmer questions the suitability of "summary opinions" for "making law""because they are not the products of merits briefing and oral argument." Hemmer argues that the best way to understand "summary dispositions" (and the way the Roberts Court does understand it), is as a "tool to manage and oversee the docket of the lower court" and to ensure that the "lower-court decision takes account of intervening precedent without the Court spending its own time and energy on cases that pose similar issues." Hemmer opines that in this manner, the Court acts in a "managerial capacity" rather than in a "lawmaking" or "error-correcting capacity." 
Precendential Value and Limitations on UsageIn Hardwick v. Bowers, 706 F.2d 1202 (11th Cir. 1985), the Court cited the general rule of Hick v. Miranda, 422 U.S. 332, 344 (1975) that a "summary affirmance of the Supreme Court has binding precedential effect." 
Limitations on the Scope: Judgment Distinguished from ReasoningBut the Court in Hick also held that if the summary disposition lacks an explanation of its reasons, its "holding must be carefully limited." The Hardwick  Court stated that although a summary affirmance "represents an approval by the Supreme Court of the judgment below but should not be taken as an endorsement of the reasoning of the lower court" and that "finding the precise limits of a summary affirmance has proven to be no easy task." The Harwick Court  explains that a court "seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as in the jurisdictional statement" and cited another Supreme Court case that held that a summary affirmance is binding only to the "precise issues presented and necessarily decided." 
"Subsequent Developments" that "Undermine" Precedential ValueThe Hardwick Court also reviewed that a "summary disposition binds lower court only until the Supreme Court indicates otherwise" but "developments subsequent " subsequent to a summary disposition" may "undermine whatever controlling weight it once may have possessed." 
Hardwick reviews that "[d]octrinal developments need not take the form of an outright reversal of the earlier case. The Supreme Court may indicate its willingness to reverse or reconsider a prior opinion with such clarity that a lower court may property refuse to follow what appears to be binding precedent."  The Court further states that "[e]ven less clear-cut expressions by the Supreme Court can erode an earlier summary disposition because summary actions by the Court do not carry the full precedential weight of a decision announced in a written opinion after consideration of briefs and oral argument." 

Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

 The Fourth Circuit’s recent decision In re Cleary Packaging, LLC, 2022 WL 2032296 (4th Cir. June 7, 2022) holds that in certain Subchapter V cases the statutory exceptions to the bankruptcy discharge will apply to corporate debtors. An article at National Review explains generally, in a traditional Chapter 11, exceptions to discharge for corporate debtors are more limited if the corporation is not liquidating. "Based on the Fourth Circuit’s decision in In re Cleary Packaging, LLC, Subchapter V includes broader exceptions to discharge for a debtor that cannot confirm a consensual plan, including claims against corporate debtors for certain types of fraud and other willful and malicious injuries." The article can be found at https://lnkd.in/g6i2vEbFJim Shenwick, Esq 212 541 6224 [email protected]

Get Ready for a Recession Michelle Singletary in Wednesday’s Washington Post writes about getting ready for a recession.  Two pieces of her advice: clear your credit card debt; and start saving. Suppose the recession hits hard ten months from now–April 2023.  Will your credit cards be paid off?  If there’s a lot of slack in […]
The post One Way to Get Ready for Recession: Bankruptcy by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.