(Download) "Setting Things Straight: Adding a Provision to Allow Damages for Emotional Distress in the Bankruptcy Code could Clear up a Lot of Confusion." by Missouri Law Review # eBook PDF Kindle ePub Free

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eBook details

• Title: Setting Things Straight: Adding a Provision to Allow Damages for Emotional Distress in the Bankruptcy Code could Clear up a Lot of Confusion.
• Author : Missouri Law Review
• Release Date : January 22, 2009
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 322 KB

Description

I. INTRODUCTION Every year, Americans who file for bankruptcy (1) receive protection from the automatic stay, a statutory device designed to stop creditors' collection efforts while the debtor puts his financial affairs in order. (2) Despite the existence of the stay and the fact that it is automatically triggered upon a debtor's filing for bankruptcy, courts are replete with cases in which overly aggressive creditors use questionable and reprehensible means to obtain payment from delinquent debtors. (3) As a result of creditors' actions in violation of the automatic stay, an aggrieved debtor, already suffering under the weight of his financial difficulties, may experience some form of emotional distress. (4) Although the Bankruptcy Code permits an award of actual and punitive damages, as well as attorneys' fees, to an injured debtor, the Code does not explicitly address whether damages are available for emotional distress. (5) Thus, courts are left to wrangle with the issue themselves, often undertaking considerable analysis of the statutory text, statutory history, and contextual clues to address the issue. (6) Not surprisingly, this struggle often leads to divergent results between courts. With differing standards and burdens of proof depending on the court, aggrieved debtors are often at the mercy of the specific jurisdiction's precedent. (7) The inconsistent treatment of the same statutory text leaves the debtor rolling the dice--what may be a large recovery for emotional distress in one jurisdiction may amount to little or nothing in another jurisdiction. (8)

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