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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). .jpg&container=blogger&gadget=a&rewriteMime=image%2F*)
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
Usury – historical references and bankruptcy
USURY can be traced back 4,000 years. It has always been despised, condemned, restricted or banned by moral, ethical, legal or religious entities. The oldest references to usury are found in religious manuscripts of India, dating back to 2000-1400 BC where the ‘usurer’ is associated with any interest lender. In the Hindu Sutra (700-100 BC) as well as in the Buddhist Jatakas (600-400 BC) there are many references to the payment of interest, along with expressions of disdain for the practice. Vasishtha, a prominent lawmaker of the era, drafted a law that banned the high caste Brahmans and Kshatryas from being usurers or money-lenders. In the second century AD, the term usury becomes relative, meaning that interest above the legal rate could not be charged; that would be a usurious loan.
No one wants to file bankruptcy. Having said that, and in order to protect your health and peace of mind, along with that of your family, bankruptcy may be your only option.
Very few of us have the ability to completely control the financial part of our lives. Companies fail, jobs are lost, people get sick and families are broken.
The creditors are happy to give everyone credit, whether or not they qualify.
These creditors have no regard for the individual’s ability to repay the credit. In fact, they want the borrower to be late because the creditor makes more money from a default or overdraft of a credit limit or bank account. As a result, that creditor is betting that they will earn more in interest, penalties, and additional charges from borrowers than they will lose as a result of bankruptcy. They are hedging their bets by issuing as much credit as everyone’s mail and email boxes can handle.
Those same creditors will not work with a borrower who is experiencing financial difficulties.
That creditor doesn’t care if the borrower has never been late. They use various methods to ensure that the payment is late, such as changing the date or time the payment is due, changing the location where the payment is made, or refusing to accept a payment because they know that 98 percent of all borrowers will simply pay the late fee rather than argue. That creditor only wants “their money.” If you don’t believe me, ask their collection agents. Today, it is extremely rare for a creditor to be loyal to their customers.
You must make educated decisions about what is best for you and your family.
The first step is to seek professional advice on your options. Please contact us for a free consultation.
.fusion-body .fusion-builder-column-0{width:100% !important;margin-top : 0px;margin-bottom : 20px;}.fusion-builder-column-0 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}.fusion-body .fusion-flex-container.fusion-builder-row-1{ padding-top : 20px;margin-top : 20px;padding-right : 20px;padding-bottom : 20px;margin-bottom : 0px;padding-left : 20px;}@media only screen and (max-width:980px) {.fusion-title.fusion-title-1{margin-top:10px!important; margin-right:0px!important;margin-bottom:15px!important;margin-left:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-1{margin-top:10px!important; margin-right:0px!important;margin-bottom:10px!important; margin-left:0px!important;}}Arizona Bankruptcy Lawyer@media only screen and (max-width:980px) {.fusion-title.fusion-title-2{margin-top:10px!important; margin-right:0px!important;margin-bottom:15px!important;margin-left:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-2{margin-top:10px!important; margin-right:0px!important;margin-bottom:10px!important; margin-left:0px!important;}}Law Office of D.L. Drain, P.A.
WHY SHOULD YOU HIRE ME?
Filing for bankruptcy can be a difficult process. As a well-known bankruptcy attorney, I am here for you and dedicated to treating you with dignity – you are never just a number and a paycheck. Instead, you are an individual with distinct needs. I am committed to assisting you in helping yourself during this difficult time in your life. If bankruptcy is required, it is not the end of your financial life; rather, it is the start of your financial freedom. But when done incorrectly, it is the start of a nightmare. Please contact me (a retired law professor) for a free bankruptcy consultation before deciding on the best path to protect you and your assets.
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.fusion-body .fusion-button.button-2.button-3d,.fusion-body .fusion-button.button-2.button-3d:hover{box-shadow:inset 0 1px 0 #fff, 0 0.15em 0 #003d00, 0.1em 0.2em 0.2em 0.15em rgba(0, 0, 0, 0.3);}.fusion-body .fusion-button.button-2.button-3d:active,.fusion-body .fusion-button.button-2.button-3d:hover:active{box-shadow:inset 0 1px 0 #fff, 0 1px 0 #003d00, 0.05em 0.1em 0.1em 0.07em rgba(0, 0, 0, 0.3);}.fusion-body .fusion-button.button-2{border-radius:10px 10px 10px 10px;}BANKRUPTCY HELP.fusion-body .fusion-builder-column-2{width:25% !important;margin-top : 27px;margin-bottom : 0px;}.fusion-builder-column-2 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 7.68%;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 7.68%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}.fusion-body .fusion-flex-container.fusion-builder-row-2{ padding-top : 20px;margin-top : 0px;padding-right : 40px;padding-bottom : 20px;margin-bottom : 0px;padding-left : 0px;}.fusion-imageframe.imageframe-2{ margin-top : 15px;margin-left : 15px;}
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The post Usury – historical references and bankruptcy appeared first on Law Office of D.L. Drain, P.A., Arizona Bankruptcy Lawyer.
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.
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.
Chapter 13 bankruptcy is used by people to reorganize a person's financial affairs whiles under the protection of the Bankruptcy Court. Chapter 13 bankruptcy is technically referred to as "Adjustment of Debts of an Individual with Regular Income" in the Bankruptcy Code. In some ways, it is similar to Chapter 11 which is used by businesses to reorganize.
Chapter 13 Plan
Under Chapter 13, an individual is given the opportunity to propose a Chapter 13 plan to reorganize their financial problems with their creditors, such as mortgages, property taxes, car loans, IRS debt, and credit cards.
The Bankruptcy Code classifies an individuals debts generally into three classes:
- Secured Claims - such as mortgages and car loans
- Priority Unsecured Claims - such as certain IRS debt and child support
- General Unsecured Claims - such as credit cards
The Bankruptcy Code sets forth various mandatory and permissive provisions for a Chapter 13 plan. A typical Chapter 13 plan has a term of three to five years.
The payments under a chapter 13 plan are normally made from the Debtor's regular wages or other source of income. The Chapter 13 plan payments are made to the Chapter 13 trustee who disburses the payments to creditors in accordance with the Chapter 13 plan.
Chapter 13 Plan Confirmation
The Bankruptcy Code also provides the requirements to be met for a Chapter 13 plan to be confirmed by the Bankruptcy Court.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
Chapter 13 bankruptcy is used by people to reorganize a person's financial affairs whiles under the protection of the Bankruptcy Court. Chapter 13 bankruptcy is technically referred to as "Adjustment of Debts of an Individual with Regular Income" in the Bankruptcy Code. In some ways, it is similar to Chapter 11 which is used by businesses to reorganize.
Chapter 13 Plan
Under Chapter 13, an individual is given the opportunity to propose a Chapter 13 plan to reorganize their financial problems with their creditors, such as mortgages, property taxes, car loans, IRS debt, and credit cards.
The Bankruptcy Code classifies an individuals debts generally into three classes:
- Secured Claims - such as mortgages and car loans
- Priority Unsecured Claims - such as certain IRS debt and child support
- General Unsecured Claims - such as credit cards
The Bankruptcy Code sets forth various mandatory and permissive provisions for a Chapter 13 plan. A typical Chapter 13 plan has a term of three to five years.
The payments under a chapter 13 plan are normally made from the Debtor's regular wages or other source of income. The Chapter 13 plan payments are made to the Chapter 13 trustee who disburses the payments to creditors in accordance with the Chapter 13 plan.
Chapter 13 Plan Confirmation
The Bankruptcy Code also provides the requirements to be met for a Chapter 13 plan to be confirmed by the Bankruptcy Court.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
In the case of In re Rajapakse, 346 B.R. 233 (Bkrtcy.N.D.Gla.2005)(Massey, J.), the Chapter 7 Trustee sought an order directing the pro se chapter 7 Debtor to turn over certain property located outside of the U.S. The Debtor claimed that the property was not property of the estate and was outside the Court's jurisdiction. The Court granted the Trustee's motion and directed the Debtor to turn over and account for all the foreign assets.
Section 541 provides that the commencement of a case creates an estate comprised of property listed in Section 541(a) with certain exceptions, "wherever located and by whomever held." 11 USC 541 (a). The court noted that the phrase "wherever located and by whomever held" is extremely broad and could be interpreted to cover property owned outside of the U.S. The court pointed out though that Section 541 does not expressly state that it applies outside of the U.S.
The court discussed that Congress has the power to enact a statute that applies beyond the territorial borders of the U.S, but that there is a presumption that Acts of Congress do not ordinarily apply outside the borders of the U.S. If a statute does not expressly state that is applies outside of the U.S., a court must determine whether Congress intended the statue to have extraterritorial effect. E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
The court concluded that while Section 541 is ambiguous regarding its possible extraterritorial effect, its legislative history is not. The court noted that the House Report accompanying a 1952 amendment to Section 541 makes its clear that a trustee in bankruptcy is vested with the title of the bankrupt in property within or without the U.S. The court noted that Collier on Bankruptcy confirms this interpretation that Section 70a of the Act was amended in 1952 to make it clear that a trustee in bankruptcy is vested with the title to property within or without the U.S. by the addition of the words "wherever located." Collier on Bankruptcy, Vol. $A, para 70.03, p. 35 (14th Ed. 1978). The court noted that other courts addressing this issue have reached the same conclusion. See, e.g. H.K. and Shanghai Banking Corp. v. Simon, 153 F.3d 991, 996 (9th Cir.1998), GMAM Investment Funds Trust I v. Blobo Comunicacoes E. Participacoes S.S, 317 B.R. 235 (S.DN.Y.2004), Deak & Co. v. Soedjono, 63 B.R. 422, 427 (Bankr.S.D.N.Y.1986), Nakash v. Zur, 190 B.R. 763, 768 (Bankr.S.D.N.Y.1996), In re Yukos Oil Co. 321 B.R. 396, 406 (Bankr.S.D.Tex.2005).Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
In the case of In re Rajapakse, 346 B.R. 233 (Bkrtcy.N.D.Gla.2005)(Massey, J.), the Chapter 7 Trustee sought an order directing the pro se chapter 7 Debtor to turn over certain property located outside of the U.S. The Debtor claimed that the property was not property of the estate and was outside the Court's jurisdiction. The Court granted the Trustee's motion and directed the Debtor to turn over and account for all the foreign assets.
Section 541 provides that the commencement of a case creates an estate comprised of property listed in Section 541(a) with certain exceptions, "wherever located and by whomever held." 11 USC 541 (a). The court noted that the phrase "wherever located and by whomever held" is extremely broad and could be interpreted to cover property owned outside of the U.S. The court pointed out though that Section 541 does not expressly state that it applies outside of the U.S.
The court discussed that Congress has the power to enact a statute that applies beyond the territorial borders of the U.S, but that there is a presumption that Acts of Congress do not ordinarily apply outside the borders of the U.S. If a statute does not expressly state that is applies outside of the U.S., a court must determine whether Congress intended the statue to have extraterritorial effect. E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
The court concluded that while Section 541 is ambiguous regarding its possible extraterritorial effect, its legislative history is not. The court noted that the House Report accompanying a 1952 amendment to Section 541 makes its clear that a trustee in bankruptcy is vested with the title of the bankrupt in property within or without the U.S. The court noted that Collier on Bankruptcy confirms this interpretation that Section 70a of the Act was amended in 1952 to make it clear that a trustee in bankruptcy is vested with the title to property within or without the U.S. by the addition of the words "wherever located." Collier on Bankruptcy, Vol. $A, para 70.03, p. 35 (14th Ed. 1978). The court noted that other courts addressing this issue have reached the same conclusion. See, e.g. H.K. and Shanghai Banking Corp. v. Simon, 153 F.3d 991, 996 (9th Cir.1998), GMAM Investment Funds Trust I v. Blobo Comunicacoes E. Participacoes S.S, 317 B.R. 235 (S.DN.Y.2004), Deak & Co. v. Soedjono, 63 B.R. 422, 427 (Bankr.S.D.N.Y.1986), Nakash v. Zur, 190 B.R. 763, 768 (Bankr.S.D.N.Y.1996), In re Yukos Oil Co. 321 B.R. 396, 406 (Bankr.S.D.Tex.2005).Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
The Taxman Cometh: The IRS wants in on your Venmo, see the article at https://nypost.com/2022/06/09/the-taxman-cometh-the-irs-wants-in-on-your...As the article provides, any income you earn over $600 is now being reported to the Internal Revenue Service by payment apps including eBay, Venmo and AirbnbForewarned, is forearmed! Jim Shenwick Esq 212 541 6224 [email protected]
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