Hon. Nancy C. Dreher and Hon. Joan N. Feeney Interview

Benjamin Weintraub and Alan Resnick wrote a magnificent treatise in 1980 which was scholarly, thoughtful, analytical, and practical. The authorship of the Manual was an opportunity to contribute to the practice of bankruptcy law. In particular, it was an opportunity to assist bankruptcy professionals in improving their practice, especially in view of the vast changes in bankruptcy law and procedure in recent years.

Although we consider this our second job and work nights and weekends most of the time, we love what we do and consider it an essential part of our professional development. Researching and writing the Manual makes us better bankruptcy judges as we are always up to date on developments in bankruptcy law. Staying current is essential not only for judging, but also for the many seminars we give to lawyers.

We expected problems with the credit counseling briefing, and there were. Surprisingly, there was a substantial learning curve for this quite simple requirement for eligibility for individuals. Now it appears that individuals understand it is a prerequisite to file and it is not as much of a problem as the first two years of BAPCPA.

We also expected problems with the new provisions relating to the automatic stay, sections 362(c)(3) and (c)(4), and they did occur. It took about two years for the splits on interpretation of these new provisions to develop, demonstrating that the language is not easy to read – and further demonstrating the importance of keeping current on developing law, in particular circuits and districts and the value of having a treatise such as the Manual at hand. Now that the law has matured, we find that most debtors are able to overcome the presumption of lack of good faith and, indeed, motions to extend usually do not even draw an objection from creditors.

2005 was an enigma. In Massachusetts, for example, there were over 26,000 filings; it appeared that anyone who ever thought about bankruptcy filed by October 16, 2005, the day before the Act's effective date. Thus, filings decreased substantially in 2006. In 2008, there were over 16,000 filings in Massachusetts, close to pre-BAPCPA 2004 levels of about 18,000. By the end of 2008, Minnesota had approximately 87% of the number of filings it had experienced in 2004, the year before BAPCPA was filed.

In our view, the steep decline in 2006 was a direct result of BAPCPA provisions of "means testing." There was considerable press to the effect that following the passage of BAPCPA people would not be able to file for bankruptcy relief. Over the last several years they have learned otherwise.

As for the future, all indications are that filings will increase significantly in 2009 due to the poor economy, mortgage defaults, loss of value in the real estate market, huge job losses being experienced throughout the country, and the inability to refinance and sell real estate.

Historically, in times of economic recession, Congress has liberalized relief for debtors, but it is impossible to predict what Congress will do. For almost two years there have been consumer bills pending, but they have not been passed.

At the outset, there are many typographical errors in the 2005 Act which need to be corrected. Substantively, although debtor education is a positive requirement, many debtors' attorneys have commented that the credit counseling briefing is too brief and too late to do individuals much good.

In Chapter 13, there needs to be clarification of the concept of projected disposable income, in particular, the proper expense categories in that concept. There are hundreds of decisions on this issue, and the litigation is time and money wasted for creditors and debtors. The applicable commitment period in Chapter 13 has worked relatively well.

The definition of "domestic support obligation" and the elimination of the distinction between the dischargeability of alimony and support on the one hand and property settlements on the other hand should be retained. However, the distinction remains in Chapter 13 cases and it is not apparent why. The reaffirmation statute is cumbersome and could be streamlined.

The Manual is a quick-reference guide with analysis and citations on every possible issue which could arise in a bankruptcy case. While it is scholarly, it is also practical and timely.

Develop your skills and a reputation of competence. Stay up to date with developments in the law, develop relationships with other bankruptcy specialists, join bar organizations with bankruptcy sections and at least one national bankruptcy professional organization, and do pro bono work.

As one of our colleagues once said, "In this small bankruptcy community, reputation is everything." Yours starts with the very first move you make in the bankruptcy practice. The same, of course, is true with respect to judges.