Your Bankruptcy Rights vs. Creditors’ Rights to “Not be Deprived of Property without Due Process of Law” under the Fifth Amendment

The U. S. Constitution doesn’t talk about it, so how does filing bankruptcy give you the power to stop a foreclosure?

As you’ve probably heard, bankruptcy is explicitly covered in the Constitution. But not much.  All it says is that Congress has the power “to establish… uniform laws on the subject of bankruptcies throughout the United States.”  (Article 1, Section 8, Clause 4.) Not a word about the rights and obligations of the person filing bankruptcy. Nor about the rights and obligations of creditors.

The Fifth Amendment talks about the rights of creditors when it says that a person shall not “be deprived of… property, without due process of law.”  So let’s say you have entered into a contract to pay a loan taken out on the purchase of your home, and that contract includes a condition that the creditor can take your home when you don’t maintain the payments on the loan.  If indeed you do not make payments, the creditor’s contractual ability to take your home is a property right it then owns. It bargained for that right with you when it lent you the money to purchase the home.

But you’ve heard that bankruptcy DOES have the power to stand in the way of your mortgage holder’s right to foreclose on the mortgage. Where does that power come from?

According to the U. S. Supreme Court, which dealt with this issue a number of times during the Great Depression in the 1930s, that power “incidentally to impair or destroy the obligation of private contracts… must have been within the contemplation of the framers of the Constitution.” Continental Bank v. Rock Island Ry., 294 U.S. 648, 680-81 (1935). The Court’s rationale was that because Congress was given “the express power to pass uniform laws on the subject of bankruptcies,” delaying the exercise of creditors’ rights “necessarily results from the nature of the power.”

But, showing this isn’t so straightforward, later that same year the Supreme Court struck down an amendment to the bankruptcy law that had been enacted in 1934 to address the massive number of farm foreclosures. One of the reasons the law was ruled unconstitutional is because it took away from the mortgage-holding bank a property right: the “right to determine when such [foreclosure] sale shall be held, subject only to the discretion of the court.” Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 594 (1935).

So Congress quickly changed the law that same year to try to meet the Court’s objections. When that new law came before the Court, this time it was upheld, in an opinion written by the same justice, the eminent Justice Louis Brandeis, who had written the above opinion striking down the earlier law.

This time the bank holding the farmer’s mortgage based its argument that the law was “unconstitutional… mainly upon the… assertion is that the new Act in effect gives to the mortgagor [the farmer filing bankruptcy] the absolute right to a three-year stay; and that a three-year moratorium cannot be justified.”

After listing numerous ways in which the three-year stay was conditioned for the protection and benefit of the creditor, Justice Brandeis concluded that this stay, and the entire new law, was constitutional, as follows:

The power here exerted by Congress is the broad power “To establish… uniform Laws on the subject of Bankruptcies throughout the United States.” The question which the objections raise is… whether the legislation modifies the secured creditor’s rights…  to such an extent as to deny the due process of law guaranteed by the Fifth Amendment. A court of bankruptcy may affect the interests of lien holders in many ways. To carry out the purposes of the Bankruptcy Act, it may direct that all liens upon property forming part of a bankrupt’s estate be marshalled; or that the property be sold free of encumbrances and the rights of all lien holders be transferred to the proceeds of the sale. Despite the peremptory terms of a pledge, it may enjoin sale of the collateral, if it finds that the sale would hinder or delay preparation or consummation of a plan of reorganization. It may enjoin like action by a mortgagee which would defeat the purpose of [the new law] to effect rehabilitation of the farmer mortgagor. For the reasons stated, we are of opinion that the provisions of [the new law] make no unreasonable modification of the mortgagee’s rights; and hence are valid.

Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U. S. 440, 470 (1937)(emphasis added, internal case citations omitted).

That why your bankruptcy filing powerfully stops a home foreclosure, even though the Constitution doesn’t say anything directly about this, and even though stopping that foreclosure impinges on a property right of your foreclosing mortgage lender.

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