The Haunting of Bankruptcy Law

It must have been a slow day in the bankruptcy courts of South Florida when Judge A. Jay Cristol took pen in hand to address the case of In re Love. The West headnote at the end is funny.  But first, Judge Cristol’s take on Edgar Allan Poe’s haunting poem, The Raven, as applied to bankruptcy law:

Once upon a midnight dreary, while I pondered weak and weary

Over many quaint and curious files of chapter seven lore

While I nodded nearly napping, suddenly there came a tapping

As of some one gently rapping, rapping at my chamber door,

“Tis some debtor” I muttered, “tapping at my chamber door—

Only this and nothing more.”

Ah distinctly I recall, it was in the early fall

And the file still was small

The Code provided I could use it

If someone tried to substantially abuse it

No party asked that it be heard.

“Sua sponte” whispered a small black bird.

The bird himself, my only maven, strongly looked to be a raven.

Upon the words the bird had uttered

I gazed at all the files cluttered

“Sua sponte,” I recall, had no meaning; none at all.

And the cluttered files sprawl, drove a thought into my brain.

Eagerly I wished the morrow—vainly I had sought to borrow

From BAFJA, surcease of sorrow—

and an order quick and plain

That this case would not remain

as a source of further pain.

The procedure, it seemed plain.

As the case grew older, I perceived I must be bolder.

And must sua sponte act, to determine every fact,

If primarily consumer debts, are faced,

Perhaps this case is wrongly placed.

This is a thought that I must face, perhaps

I should dismiss this case.

I moved sua sponte to dismiss it

for I knew I would not miss it

The Code said I could, I knew it.

But not exactly how to do it, or perhaps some day I’d rue it.

I leaped up and struck my gavel.

For the mystery to unravel

Could I? Should I? Sua sponte, grant my motion to dismiss? While it seemed the thing to do, suddenly I thought of this.

Looking, looking towards the future and to what there was to see

If my motion, it was granted and an appeal came to be,

Who would be the appellee?

Surely, it would not be me.

Who would file, but pray tell me,

a learned brief for the appellee

The District Judge would not do so

At least this much I do know.

Tell me raven, how to go.

As I with the ruling wrestled

In the statute I saw nestled

A presumption with a flavor clearly in the debtor’s favor.

No evidence had I taken

Sua sponte appeared foresaken.

Now my motion caused me terror

A dismissal would be error.

Upon consideration of § 707(b), in anguish, loud I cried

The court’s sua sponte motion to dismiss under 707(b) is denied.

Give credit to the headnote writers at West. The job must be pretty boring, but they never miss a chance to spice it up a bit. Here’s the West Reporter headnote for the case:

Bankruptcy 48

Sua sponte dismissal would be error,

Though authority in Code is there,

To eschew abuse of consumer debt,

As presumption for debtor must be met.

In re Love, 61 B.R. 558, 558–559 (Bankr. S.D. Fla. 1986). Thanks to Professor Glenn E. Pasvogel.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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