Mike Baker, Associated Press Writer
Monday April 13, 2009
RALEIGH,
N.C.
(AP) -- The number of
U.S.
businesses and individuals declaring bankruptcy is rising with a
vengeance amid the recession, despite a three-year-old federal law
that made it much tougher for Americans to escape their debts, an
Associated Press analysis found.
"There's no end in sight," said bankruptcy lawyer Bryan Elliott of
Hickory, N.C., who is working seven days a week and
scheduling prospective clients a month in advance. "To be doing this
well and having this much business, it is depressing. It's not a
laugh-a-minute job."
Nearly 1.2 million debtors filed for bankruptcy in the past 12
months, according to federal court records collected and analyzed by
the AP. Last month, 130,831 sought bankruptcy protection -- an
increase of 46 percent over March 2008 and 81 percent over the same
month in 2007.
Bob Lawless, a professor at the University of Illinois College of
Law, said bankruptcies could reach 1.5 million this year and level
off at 1.6 million next year -- around the same time economists
expect an economic recovery to begin.
Congress voted in 2005 to make bankruptcy more cumbersome after
years of intense lobbying from the nation's lenders, who complained
that people were abusing the system. Before the move to change the
law, bankruptcies were running at what was then an all-time high of
about 1.6 million per year.
The tighter requirements initially appeared to work, with
bankruptcies plummeting from a record-shattering 2 million cases in
2005 -- a total that reflected a rush to file before the new law
took effect -- to 600,000 in 2006. But now bankruptcies are booming
again.
"You wouldn't get this large of a rise without serious problems in
the economy," said Lynn LoPucki, a UCLA law professor who researches
bankruptcy.
The bankruptcy rate is climbing as well. In the past 12 months,
about four people or businesses for every 1,000 people in the
country filed for bankruptcy, according to the AP analysis. That is
twice the rate in 2006, and close to the average of about five for
every 1,000 in the decade leading up to the change in the law.
Lawless said the shame of bankruptcy may have eased somewhat in
recent years, but added, "It's still a very stigmatizing, traumatic
event for most everyone who files."
Previous recessions also drove people to bankruptcy court, though
those increases were more moderate. Bankruptcies went up 19 percent
amid the economic contraction in 2001, and about 15 percent during
the recession of the early 1980s, according to the Administrative
Office of the U.S. Courts.
Bankruptcy is considered a lagging economic indicator, since it is
generally a last resort. The filings compiled by the AP illustrate
the places where the economic meltdown has hit hardest.
In March, bankruptcy filings jumped the highest across the West. In
Arizona, filings rose 48 percent from a year
ago. They were up 46 percent in Idaho, 45 percent in California
and 44 percent in Nevada, though
those were trumped by
Delaware, home to many large corporations,
which saw a 56 percent jump.
Emory Clark, an Atlanta
bankruptcy attorney who has been in the business for 25 years, said
he is seeing more affluent people, many who have lost their jobs.
"There's something about human nature or American culture, but
people hate filing for bankruptcy," Clark
said. "It really is a stamp of failure. Nobody wants to come in here
and pay us money to file. They are forced in because of
circumstances."
Kathy Stevens of Vista,
Calif., opened a tea and coffee
boutique in August 2007, and it grew steadily. Then enrollment
started to fall at a nearby mom-and-tot gym her customers
frequented, and her business took a hit. The gym finally closed in
the fall.
Stevens and her husband spent more than $35,000 to keep the
boutique afloat, drawing on their own money and donations from
family. After working from 6 a.m. until almost 10 p.m., seven days a
week for months on end, Stevens realized her store would not
survive. The couple filed for bankruptcy two weeks ago.
"You feel bad, because you never set out to do this," Stevens said.
"We're trying to put it behind us and lick our wounds and move on."
Under the 2005 law, Congress imposed higher fees on those seeking
bankruptcy and began requiring credit counseling sessions and a
means test to assess debtors' ability to pay what they owed.
Lawless, the Illinois
law professor, said his research found that the law simply increased
the cost of filing by 50 percent and led many more people to cling
to false hope longer.
Many filers take a credit counseling class just a day before
turning to the courts.
Also, the law's test of a person's ability to pay off debts appears
to have failed at one of its goals: steering debtors from Chapter 7,
which allows people to sell off their assets to repay what they can
and start again debt-free, and into Chapter 13, which places the
filer in a repayment plan that can last for years. Chapter 7 cases
accounted for 69 percent of all filings in the past year, compared
with 71 percent in 2004.
Lawless argued that only a tiny number of people were abusing the
system before the 2005 shift, and that the law punishes those who
genuinely need help.
"The point of the bankruptcy system is to give the honest but
unfortunate debtor a fresh start," Lawless said. "The fact that
people are waiting longer to file shows just how mean-spirited the
law is."
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