Is the Proposed Bailout Good . . . Or Really Bad?

For average Americans watching from the sidelines, the proposed mortgage bailout looked like something straight out of the Communist Manifesto. Perhaps that is why it was so unpopular everywhere but Wall Street and Washington, D.C. As this author describes, the bailout does look like something Karl Marx would have approved.

In his Communist Manifesto, published in 1848, Karl Marx proposed 10 measures to be implemented after the proletariat takes power, with the aim of centralizing all instruments of production in the hands of the state. Proposal Number Five was to bring about the “centralization of credit in the banks of the state, by means of a national bank with state capital and an exclusive monopoly.”

If he were to rise from the dead today, Marx might be delighted to discover that most economists and financial commentators, including many who claim to favour the free market, agree with him.

The author goes on to point out that only the Austrian School of economics realistically opines that the boom cannot go on forever. Interestingly, I have been reading a history and analysis of the Great Depression by Murray N. Rothbard, called America's Great Depression. You can download a PDF copy of the book from the Mises Institute (which embraces the Austrian School of economics) here. Rothbard was (and may still be) with the Mises Institute. The essential premise of the book is that there will always be a boom and bust cycle in the economy and that government intervention can lengthen the boom cycle, but when the bust cycle comes around it will be much worse. That is what we saw with the Great Depression and it looks like that may be what is happening now.

CCBA Institute - September 18 & 19, 2008

The Central California Bankruptcy Association 22nd Annual Institute will be held this week, September 18 & 19. The Institute brings bankruptcy professionals together from all over central California to discuss various bankruptcy issues. You can download the Institute flyer and program here. There is also a golf tournament held in conjunction with the Institute. Check out the website for more information about the Institute and how to join the CCBA.

Goodbye Negative Equity!

One of the changes under the 2005 BAPCPA is that car creditors' claims cannot be valued (i.e., paid only the value of the car or other collateral) if the car was purchased within 910 before the bankruptcy filing. This cut down significantly on the amount of cars that could be valued in Chapter 13.

One problem that came up was the problem of "negative equity," i.e., when a car is traded in and is worth less than what is owed on it, the dealership will often roll the extra debt into the new purchase. So, for example, if you trade in your 2002 car worth $5,000 when you owe $10,000 on it, your new car loan would be $5,000 more than it would have been otherwise. I will frequently see clients with $5,000, $10,000 or even $15,000 in negative equity on a vehicle. The question is whether the "negative equity" can be valued at its true worth (zero) or whether the whole amount of the loan has to be paid.

The Ninth Circuit addressed this question in In re Penrod, adopting the dual status rule. The dual status rule means that the portion of the debt allocable to negative equity may be valued because it is not "purchase money" and the portion of the debt that is not for "negative equity" cannot be valued. This ruling makes the most sense practically, because in most of those situations, the Debtor would not be able to afford the car with negative equity, whereas the Debtor could afford the car if the "negative equity" could be removed from the amount of the debt.