"City of Chicago v. Fulton: Brief of Amici Curiae Professors John A. E." by John A.E. Pottow
 

Document Type

Brief

Publication Date

3-10-2020

Abstract

Amicus Pottow is the John Philip Dawson Collegiate Professor of Law at the University of Michigan Law School. He has spent decades studying the bankruptcy system and has briefed and argued cases before this Court before on the subject of bankruptcy law. Amicus Westbrook has also spent decades studying the bankruptcy system and has briefed cases before this Court. Amici are the primary co-authors of one of the leading textbooks on debtor creditor law. Amici are members of the American College of Bankruptcy and International Insolvency Institute and have served on the U.S. delegation to the United Nations Commission on International Trade Law as expert advisers on insolvency law. Amici file this brief as part of their ongoing service to assist courts confronting important issues of bankruptcy law-here, the proper interpretation of the automatic stay under 11 U.S.C. § 362(a)-and to ensure the Court's opinion is narrowly focused thereon.<\p>

The Court should follow the clear text of § 362(a)(3)'s bar to "any act . .. to exercise control over property of the estate." 11 U.S.C. § 362(a)(3). In interpreting that clear text, the Court should first consider several important background practices of the bankruptcy system that provide context to the statute, including the use of trustees to administer estate property, the reality that in most bankruptcy estates the trustee or debtor is in possession of secured collateral (not the secured party), and that lower courts near-unanimously agree that enforcing liens through exercising possessory rights to force repayment violates other paragraphs of the automatic stay beyond § 362(a)(3).<\p>

Finally, the two additional arguments relied upon by the City and its supporting amici make no sense. An alternative rule to § 362(a)(3) (and § 542(a)) premised upon drawing a distinction between possessing property and possessing possession of property would make it impossible for trustees to administer their estates. Similarly, this Court's opinion in Citizens of Maryland Bank v. Strumpf, 516 U.S. 16 (1995), which pertains to a creditor's right to offset mutual monetary obligations, has no relevance to this case; it is simply a red herring.<\p>

Comments

Amicus: Pottow, Professor John A. E.; Westbrook, Professor Jay Lawrence

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