Insurtech companies continue to expand their reach into the Latin America market, particularly in Brazil, Mexico, and Peru. Insurtech, defined as the combination of insurance and technology, develops and leverages new digital tools to optimize the insurance business. Latin America affords an attractive environment for insurtech companies to develop innovative business models including new distribution channels and systems to compare insurance products and provide services to insurance companies. The fact that the insurance industry in Latin America is highly regulated, combined with the absence of regulatory frameworks specific to insurtech, explains, in part, why insurtech has experienced slow growth to date, representing roughly only 6% of all start-up fintech companies in Latin America. Recognizing insurtech’s potential benefits, insurance regulators in Latin America have begun to explore how to facilitate modernization of the insurance sector through the use of new digital technologies without compromising consumer protection. 

Brazil, the leading insurtech market in Latin America, recently offered a regulatory sandbox to a limited number of insurance companies supervised by the Brazil Insurance Superintendent (SUSEP). The sandbox is designed to enable testing of new products and services and to encourage development of new ways to provide traditional insurance services. SUSEP adopted Circular No. 592 on August 26, 2019, authorizing “on demand” insurance policies, thus permitting issuance of policies with flexible terms affording coverages on a monthly, daily, or even hourly basis. These “on demand” insurance policies are sold by digital means, thus allowing insureds to turn coverages on and off. This has opened the door to basic insurance for mobile devices, bikes, motorcycles, and other personal valuables such as smartphones and tablets. These regulatory changes reflect SUSEP’s intent to adapt to the increasing use of smart phones by consumers and to usher in the digital insurance era, which, in turn, hopefully leads to more affordable products.

Although not specific to insurtech, Mexico adopted a law to regulate financial technology companies (Fintech Law) on March 9, 2018. The Fintech Law was designed essentially to promote financial technology models such as crowdfunding or electronic payments, or virtual assets such as bitcoins. While it predates adoption of the USMCA, the Fintech Law suggests that Mexico was anticipating USMCA requirements with respect to the handling and sharing of customer data, prohibiting discrimination against foreign fintech companies. The Fintech Law would also enable Mexican fintech companies to provide services in other countries. The USMCA is designed to enhance and facilitate the offering of insurance services by licensed suppliers, which, in turn, likely would promote the insurtech industry by making it easier for companies to obtain approval for new insurance lines (except personal and compulsory insurance).

The Fintech Law demonstrates that legislators in Mexico may be flexible in devising future regulations to address insurtech in a similar way. Until then, insurtech companies are subject to the existing legal regime, the Law of Insurance Companies and Bonds (Mexican Insurance Law), and Regulations and Circulars issued by the National Commission of Insurance and Bonds (CNSF). Article 214 of the Mexican Insurance Law, for example, specifically permits insurance operations and brokering activities to be provided by electronic means.

Although Peru has not adopted an insurtech law, the Banking and Insurance Superintendent (SBS) has promulgated regulations that address the sale of insurance products by digital means. The Marketing of Insurance Products Regulations, adopted by Resolution SBS No. 1121-2017 (“Marketing Regulations”), allows insurance companies to promote, offer, and sell products by phone, internet, or other distance (i.e., rather than “in person”) systems, including digital marketing through social media. The Marketing Regulations also enable operation of digital insurance policy price comparison systems. Likewise, the Supervision and Control of Insurance Intermediaries Regulations, adopted by Resolution SBS 809-2019, allows insurance brokers to use distance communication systems (i.e., phone, internet, applications) to offer and sell insurance products on prior notice to the SBS. Insurance companies and insurance intermediaries using these digital tools must guarantee that the information provided to prospective policyholders complies with the security, confidentiality, and transparency principles provided in the General Law for the Financial and Insurance Systems and the Organic Law for the Superintendent of Banking and Insurance for the sale of insurance products.

The SBS is working on a proposal to amend the Marketing Regulations to allow the marketing of insurance products through “marketers” or “bancassurance” by traditional or digital means. Marketers are individuals or companies contracted by insurance companies to facilitate the sale of insurance products. By virtue of the marketing agreement between the marketers and the insurance companies, marketers become representatives of the insurance companies in connection with the sale of insurance products.

While insurtech would facilitate growth in the insurance market in numerous countries in Latin America with increasing insurance penetration, such as Colombia, Argentina, Ecuador, Panama, Costa Rica, and Chile, these countries have not yet adopted laws or regulations addressing insurtech. Thus, in these markets, start-up insurtech and technology companies are subject to existing legislation governing insurance companies and insurance intermediaries in connection with their operations. The absence of specific regulations, however, has not prevented companies from venturing into innovative insurance schemes including new distribution channels, price comparison tools, and aggregation methods in these countries. Clearly, legislation is not far behind.

To foster insurtech development, the International Association of Insurance Supervisors (IAIS) has established working groups as platforms for the exchange of information and sharing of experience in this area, but ithas not yet issued recommendations regarding insurtech regulation. IAIS guidelines would undoubtedly encourage regulators to expedite appropriate regulations governing insurtech. This, in turn, would promote and protect this new industry, which is encountering very receptive markets in Latin America.

Discrimination on the basis of race is a fundamental human rights issue. The UN Universal Declaration of Human Rights (UDHR) proclaims that all human beings are born free and equal in dignity and rights, and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, color, or national origin. The preamble to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted by the UN General Assembly in 1965 and entered into force in 1969, includes a reaffirmation that discrimination among human beings on the grounds of race, color, or ethnic origin is capable of disturbing peace and security among peoples, and the harmony of persons living side by side even within one and the same state. Article 5 of the ICERD calls on states to undertake to prohibit and to eliminate racial discrimination in all its forms within their borders and to guarantee the right of everyone—without distinction as to race, color, or national or ethnic origin—to equality before the law and enjoyment of an expansive portfolio of rights, including, among other things, the right to equal treatment before the tribunals administering justice as well as political rights, in particular rights to participate in elections and equal access to public service. Article 5 also obligates states to protect economic, social, and cultural rights, including the rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, and to just and favorable remuneration.

International human rights standards were originally written by states to create a framework and set of goals for governmental action, and it was often argued that such standards did not apply to the private sector. For many, the obligations of businesses with respect to the subjects covered by international human rights standards were limited to compliance with applicable national laws, even if those laws failed to meet international standards. However, as time has gone by, ideas have changed, albeit slowly, and there is now growing support for the notion that although the primary duty to protect human rights remains with national governments, businesses also have responsibilities to respect human rights in their operations. The preamble to the UDHR imposes duties to promote and respect human rights “on every individual and every organ of society.” In 2011, the UN Human Rights Council endorsed the Guiding Principles on Business and Human Rights, and Guiding Principle 11 provides: “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Importantly, the official commentary to the Guiding Principles endorsed by the UN Human Rights Council makes the following clear: “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate . . . . [It] exists over and above compliance with national laws and regulations protecting human rights.” Businesses have also been called upon to contribute to the Sustainable Development Goals established by the UN, such as access to basic services, participation in decision making, full and productive employment/decent work, reducing income inequality, ensuring equal opportunity, promoting peaceful and inclusive societies, providing justice for all, and building effective, accountable, and inclusive institutions at all levels.

Unfortunately, despite all of the proclamations described above, as well as specific laws such as the federal Civil Rights Act of 1964, the United States and other states have failed to fully implement the ICERD, and racism remains one of the paramount human rights problems and threatens the livelihood and rights of millions of people in the United States and around the world.[1] In her book, Caste: The Origins of Our Discontents, Pulitzer-Prize-winning author Isabel Wilkerson wrote: “Our founding ideals promise liberty and equality for all. Our reality is an enduring racial hierarchy that has persisted for centuries.” She goes on to argue that racism in America is the byproduct of an unseen skeleton: a caste system that for centuries, even after the formal ending of slavery, has placed African Americans at the bottom rank in a societal hierarchy and repeatedly denies them respect, status, honor, attention, privileges, resources, benefit of the doubt, and basic human kindness. For her, the only way to fix the broken American house is to “tear out the plaster, down to the beams, inspect and rebuild the rotting lath” and “recast and reconstruct.”[2]

As is well known by now, the death of George Floyd, a black man, while he was in the custody of the Minneapolis police department on May 25, 2020, set off days of large public demonstrations against racial injustice all around the world, often accompanied by vandalism and looting as well as disproportionate police responses that escalated the tensions. As has often happened in the past when such incidents have occurred, businesses large and small were quick to issue statements through social media expressing their concerns about social justice and supporting the Black Lives Matter movement. Many large and well-known brands made commitments to contribute substantial sums to social justice initiatives and to support minority businesses. However, a law professor who studies economic justice at Emory University complained in The New York Times that: “Most of these corporate statements were put together by the marketing team that was trying not to offend white customers and white employees . . . . It’s complete B.S. It’s performative.”[3]

Others argued that the responses of a number of companies were “hypocritical” and “too little too late,” and pointed to examples of expressions of support for racial justice by large technology companies that appeared to be at odds with prior practices:

• Facebook being criticized for discrimination against black employees and lack of diversity in the workforce;
• Amazon calling for an end to “inequitable” treatment of black people, but long being criticized for low pay, poor working conditions, ignoring the complaints of workers (particularly during the course of the COVID-19 pandemic), and providing software to law enforcement agencies that has been misused in the racial profiling of black people (Amazon later announced that it would terminate its contracts with the police); and
• Google significantly rolling back its diversity and inclusion initiatives to avoid being perceived as anti-conservative.

Floyd’s death, which was quickly followed by the senseless killing of another black man, Rayshard Brooks, by a white police officer, was part of a seemingly endless series of high-profile violent events targeting African Americans (e.g., Ahmaud Arbery, Breonna Taylor, Eric Garner, Trayvon Martin, and others), and occurred during a health pandemic that has been difficult for every American, although there is evidence that the adverse impacts have fallen disproportionately on blacks and other people of color. For example, local government officials reported that job losses in New York City relating to the economic carnage of the pandemic have been much more dramatic among people of color—about one in four of the city’s Asian, Black, and Hispanic workers were unemployed in June 2020, compared with about one in nine white workers.[4] In answer to the longing among large swathes of the country to simply return to “normalcy,” i.e., the ways things were before the health crisis began, protestors and their supporters are signaling that the exclusion and disparity of the past will not be good enough and that the country and its businesses must brace and commit themselves to what will be a difficult but necessary path toward a “new normal” grounded in economic justice. In fact, the president of the American Psychological Association argued:

We are living in a racism pandemic, which is taking a heavy psychological toll on our African American citizens. The health consequences are dire. Racism is associated with a host of psychological consequences, including depression, anxiety and other serious, sometimes debilitating conditions, including post-traumatic stress disorder and substance use disorders. Moreover, the stress caused by racism can contribute to the development of cardiovascular and other physical diseases.

Related to all this is the reality that almost all of the wealth generated in the stock market during the technology boom that played out in the years before the pandemic flowed to white families, with The New York Times reporting that Federal Reserve data confirms that typical black households had only one-tenth the wealth of typical white households. The evidence is clear that the black community has realized little in the way of tangible benefits from pledges of equity from Corporate America, and that it is time for businesses to finally make a meaningful impact in an environment in which fewer than half of black adults in America have a job (due in part to the devastation to the job market caused by the pandemic), and those black workers that do have jobs make less money than white workers (due to the limited types of jobs usually available to blacks, i.e., low paying service jobs, and the failure of businesses to pay black workers the same amount as white workers for the same work). Exacerbating the crisis is the prediction that 40 percent of black-owned businesses are not expected to survive the pandemic, due mostly to the lack of business credit and personal savings that possibly could keep them afloat until conditions improve.

Darren Walker, president of the Ford Foundation, criticized the traditional and predictable response of companies in the face of racism in an article in The New York Times, saying: “The playbook is: Issue a statement, get a group of African-American leaders on a conference call, apologize and have your corporate foundation make a contribution to the N.A.A.C.P. and the Urban League. . . . That’s not going to work in this crisis.”[5] The same article led with the headline “Corporate America Has Failed Black America” and went on to read: “many of the same companies expressing solidarity have contributed to systemic inequality, targeted the black community with unhealthy products and services, and failed to hire, promote and fairly compensate black men and women.”[6] Writing in the Harvard Business Review, Mark R. Kramer noted that although taking a public position on social media supporting racial justice is laudable, and arguably overdue in many cases, he hopes that the tragedy in Minneapolis leads to actions rather than just words from businesses. According to Kramer, surveys indicate that most Americans want businesses to respond to the unrest by purging racism from the workplace, committing resources to help communities recover from the unrest, and establishing the social, economic, and political conditions necessary for a just society, and he argued that businesses have a duty to act:

We cannot pretend that most major corporations in America—and their shareholders—have not benefited from the structural racism, intentional inequality, and indifference to suffering that is behind the current protests. Corporate America and the Business Roundtable have an obligation to go beyond tweets and quotes by committing to an agenda that will advance racial equity in meaningful ways.

Although there has been sweeping and heated dialogue on the root causes of the economic and social problems confronting people of color and the consequences to society in general, many recall that they have heard a lot of this before, such as during the 1992 protests triggered by the acquittal of four white police officers who brutally beat Rodney King in Los Angeles, and worry that the compassion, anger, and energy will eventually drift away. Meaningful change takes a long time to occur in elected bodies and local police departments, particularly during a time when the country is so divided politically. However, businesses have opportunities to act quickly if they can remain focused on creating and executing solutions within their organizations and business relationships. Although the principal victims of systemic racism are people of color, it is a problem for everyone to the extent that it erodes the fabric of society. Moreover, as one observer in The New York Times noted: “racial injustice and discrimination are forces that corrupt the corporate mission and core values of a corporation.”[7]

Frustrated people in pain are tired of waiting for politicians to act and are looking to the businesses that provide them with jobs, goods, and services to take a leading role in creating a more just society. In the past, businesses have been reluctant to get involved, and the argument was frequently made that market forces would eventually solve race problems facing American companies; however, in an article published in The Economist, Walker dismissed this notion and called such views “naïve and in denial about the hold of racism on our culture, including our business culture.” In the same article, a consultant argued: “It’s utterly unrealistic for anybody to bi-furcate a societal problem . . . it’s also a business issue because business exists in society, with employers, customers, suppliers and stakeholders.”

Business leaders must seize the challenges and opportunities that have gripped society’s attention in the wake of the events of the first half of 2020 by taking a stand and making and fulfilling commitments to action across a broad spectrum of issues and contexts, including embedding equality, diversity, and inclusion in the boardroom, the workforce, and all aspects of organizational culture; achieving financial equity and security; bolstering community engagement; getting involved in the public square through advocacy for racial justice, and reimaging products and services.

Over the next few weeks, we’ll take a deeper look into many of these issues and discuss some of the practical steps that businesses can take to contribute to racial justice and equality and what you, as a business counselor, can do to assist them when they are your clients.

[1] A. Bradley, Human Rights Racism, 32 Harvard Human Rights J. 1 (Spring 2019).

[2] I. Wilkerson, America’s Enduring Caste System, N.Y. Times Mag., July 5, 2020, at 26, 33, 53.

[3] D. Gelles, Corporate America Has Failed Black America, N.Y. Times, June 7, 2020, at BU1.

[4] P. McGeehan, Calamity Looms in New York City Over Job Losses, N.Y. Times, July 7, 2020, at A1, A7.

[5] D. Gelles, supra note 3, at BU1.

[6] Id.

[7] Id.

[8] The great awakening?, Economist, June 13, 2020, at 49.

“Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”

-John Robert Lewis 

On September 23, 2020, an esteemed panel discussed how the COVID-19 pandemic is exposing and exacerbating existing social and economic inequalities affecting racial and ethnic minority groups in America, including higher infection and death rates, decreased access to adequate healthcare, increased educational achievement gaps, and higher rates of job losses. This panel included Chris Brummer, Professor and Faculty Director of the Institute of International Economics Law at Georgetown Law; Dave Clunie, Executive Director at Black Economic Alliance; Patrice Ficklin, Fair Lending Director at the U.S. Consumer Financial Protection Bureau; Jenn Jones, Chief of Membership & Policy at the National Consumer Reinvestment Coalition; Robin Nunn, Partner at Morgan, Lewis & Bockius LLP; Anthony Sharett, EVP, Chief Legal and Compliance Officer, and Corporate Secretary at Meta Financial Group and MetaBank; and Odette Williamson, Director of the National Consumer Law Center’s Racial Justice & Equal Economic Opportunity Initiative. ABA Business Law Section members can watch the panel for free CLE credit here.

The confluence of the current global health emergency, the economic crisis, and the Black Lives Matter protests has underscored the major inequalities that persist today. The demonstrably unjust treatment of Black and brown communities has shown Americans that insufficient progress has been made since the civil rights movement. The recent passing of two civil rights icons—Congressman John Lewis and Rev. C.T. Vivian—has caused many of us to reflect on the magnitude of their accomplishments and how much more there is to be done.

This country’s well-documented history of exclusionary policies has infected every sphere of our lives, legitimizing racism and creating structural barriers to equity. For instance, residential redlining, which was promoted by the Federal Housing Administration’s official policies, has led to persistent residential segregation. The implications of segregation are devastating and self-reinforcing: less access to good jobs, greater concentration of poverty and crime, underfunded public schools, lower levels of homeownership, poor housing quality, and increased risk of illness or death.

The ramifications of institutionalized racism and segregation returned to the headlines as COVID-19 has taken a disproportionate toll on minorities. As of the date of this article’s composition, there have been 6,343,62 confirmed cases of COVID-19 with 190,262 deaths in the United States.[1] According to the U.S. Centers for Disease Control and Prevention, there is increasing evidence that minority groups are disproportionately affected by the pandemic. While the fatality rate among white Americans rose only 9%, the fatality rate among Asian Americans, Black Americans, and Hispanics rose 30%, and the fatality rate of Native Americans rose more than 20%.[2] Financially, the pandemic’s toll may prove insurmountable for many minority families and communities. The ever-expanding wealth gap will impact Black families most as they have significantly less wealth to help protect them from the devastating effects of an economic crisis, let alone the ability to pass assets down to future generations. Due to the compounding effects of society’s treatment of our Black communities, “the median wealth for Black families in 2016 was an astonishing $3,557—about 2% of the median wealth owned by white families, which owned nearly $147,000 in the same year.”[3]

The stubborn persistence of these inequities requires renewed efforts and commitment. Our panel will discuss the role of existing legislation and what more can be done. The current legal landscape includes the Civil Rights Act, which sought to end segregation in public places, banned employment discrimination on the basis of race, color, religion, sex or national origin,[4] and became the archetype legislation for subsequent anti-discrimination laws that now permeate the financial landscape; the Fair Housing Act, which prohibits discrimination in the sale, rental, and financing of dwellings because of race, color, religion, sex, familial status, national origin, and disability;[5] the Equal Credit Opportunity Act, which prohibits credit discrimination on the basis of race, color, religion, national origin, sex, marital status, age, or for receiving public assistance;[6] and the Community Reinvestment Act, which requires federal financial supervisory agencies to encourage financial institutions to help meet the credit needs of the communities in which they do business, including low- and moderate-income neighborhoods.[7]

Also at play is the United States Department of Housing and Urban Development’s (“HUD”) new rule addressing disparate impact. In August 2019, HUD published a Proposed Rule seeking to amend the agency’s interpretation of the Fair Housing Act’s disparate impact standard. While HUD stated that the new rule was intended to better reflect the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.,[8] many business executives, civil rights groups, and legal practitioners believe that the proposed rule is a step backwards, making it more difficult for plaintiffs to prove unintentional discrimination. Despite this opposition, HUD finalized the new disparate impact rule on September 4, 2020.[9]

The disparities are abundantly clear, and now is time to recommit to social justice and do more.

This article is the result of the authors’ independent research and does not necessarily represent the views of the Consumer Financial Protection Bureau, the Federal Reserve Board of Governors, the United States, or Simmonds & Narita LLP

[1] WHO Coronavirus Disease (COVID-19) Dashboard, World Health Org., https://covid19.who.int/region/amro/country/us (last visited Sept. 11, 2020).

[2] As U.S. Deaths Mount, Virus Takes Outsize Toll on Minorities, Associated Press, https://www.modernhealthcare.com/safety-quality/us-deaths-mount-virus-takes-outsize-toll-minorities (last visited Aug. 27, 2020) (compared with an average over the last five years).

[3] Alissa Kline, How Banks Aim to Close Racial Wealth Gap: More Minorities in Leadership, Am. Banker, Jul. 12, 2020, https://www.americanbanker.com/news/how-banks-aim-to-close-racial-wealth-gap-more-minorities-in-leadership.

[4] See 42 U.S.C. §§ 2000e et seq.

[5] See 42 U.S.C. §§ 3601 et seq.

[6] See 15 U.S.C. §§ 1691 et seq.

[7] See 12 U.S.C. §§ 2901 et seq.

[8] HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42854 (Proposed Aug. 19, 2019).

[9] HUD Finalizes Rule to Align ‘Disparate Impact’ Rule with Court Ruling, ABA Banking Journal, https://bankingjournal.aba.com/2020/09/hud-finalizes-rule-to-align-disparate-impact-rule-with-court-ruling/ (last visited Sept. 9, 2020).

Almost three years ago, the ABA Business Law Section launched businesslawtoday.org, the Section’s premier digital platform for timely content on business law topics. The launch culminated a two-year project, in which I was part of a task force assigned to “reimagine” the Section’s longstanding print magazine, led by indefatigable former Section chair Chris Rockers. Our project ultimately resulted in a complete overhaul of how the Section sources, distributes, features, and promotes articles and other content from across the Section’s committees, and thanks to the leadership of Chris and the hard work of the other members of the task force, we were able to launch an entirely new BLT website in the late fall of 2017. This is my look back at that project and my tenure as BLT Editor-in-Chief, along with some highlights of how BLT may develop further after I hand the job over to new Editor-in-Chief Lisa Stark this September.

Reimagining… Content Distribution and Organization

Part of the goal in shifting to a web-based format was to bring more content to members more frequently and in new formats. Based on market research and member surveys, we decided to focus on providing shorter articles and topical month-in-brief-pieces that could be edited and posted to the site quickly. And we wanted to do this with a fresh look and feel in an easily navigable format, with plenty of links to related relevant content but without too much clutter. With the help of outside designers and strategy consultants hired for the “Reimagine BLT” project, we tried to focus on members’ user experience to make sure readers would easily find what they were looking for and would have plenty of reasons to frequently revisit the site.

When the site launched in November 2017, these were the key elements of the new BLT:

• 8 Practice Areas and 36 Topics.

Rather than organizing the site around the Section’s 52 substantive committees and relying on each of them to fill an allocated slot with content, we created 8 larger “Practice Areas.” These serve as general silos in which to gather written articles and other content that has some loose connection or logical relationship but not a uniform source. Each Practice Area is organized into 2 or more Topics, with a total of 36 topics across the website. With this content hierarchy, written pieces from many individual members and multiple committees might end up organized in the same section of the site, increasing the diversity of contributors and perspectives and offering an organizational scheme that is intuitive regardless of a reader’s familiarity with the Section’s committee structure.

• Heightened Author Recognition.

We wanted to make sure the site would highlight its authors and their contributions in a way that would encourage members to continue to write for BLT and that would invite new authors to contribute. At the end of each article, the site features an author photo and the author’s bio (of whatever desired length) with links to his or her other articles and related content.

• Month-in-Briefs—Short, Timely, Targeted.

Along with short, non-law-review-format articles on all of BLT’s topics, the site launched with its new “Month-in-Brief” pieces. These are very short and timely alerts about recent cases and legislation in each of the Practice Areas, and they are designed to make sure members always find something timely and useful on the site in each of the areas of law they follow.

• In Front of the Paywall.

Another important decision made at launch: the website is accessible to all. You don’t have to log in as a Section member in order to access nearly all its content, apart from a handful of reprinted articles from the Section’s academic journal, The Business Lawyer. The purpose was to promote Section content to business law practitioners and others beyond our membership. And with nearly half of web traffic to the site coming from organic search (Google and other search engines) over the last year, it is very likely many new readers are seeing the written work of Business Law Section members through BLT.

• In Living Color.

Not only did the site launch with a new logo, it added color, images, and design elements to BLT. We wanted to make sure the site was modern, fresh, and lively, and we think the images and design elements of the site add to a lively and engaging experience.

Reimagining… Content Elements

Right away we understood something our consultants warned us about: a good and useful website can’t be static—it will always need corrections, additions, and enhancements. BLT leadership has never been without a long and always-changing wish list of additional elements for the site, although we have realized some of our further goals for augmenting user experience and layering in more types of content. These include:

• Video

In 2018 we began posting interviews of Section authors, speakers, and members recorded from a BLT stage area within the Section lounge at each BLS Spring and Annual meeting. These video interviews picked up where we left off with the old “Member Spotlight” series, composed of written interviews included periodically in the old BLT magazine. We expanded them to include “Author Spotlight” and “Program Spotlight” interviews, highlighting the work of the Section’s prolific authors and program chairs and speakers. Expect more of these interviews and new types of interviews in the months to come.

• Business of Law

In 2019 we added a new top-level menu to the site, our new “Business of Law” practice area, with underlying topics Pro Bono, Diversity & Inclusion in the Profession, Professional Development, and Law Practice Management. Since the beginning, many Section members had asked for a place on BLT to post content in these areas, and we were happy to add a place for content that many Section committees and members have written about, and cared deeply about, for a long time.

• Podcasts

Earlier in 2020 the Business Law Section launched its “To the Extent That…” podcast series, and we quickly made a place on BLT where all Section podcasts can be accessed. Look for more additions in the months to come.

Reimagining… Content Promotion and Marketing

We have also expanded the ways in which BLT can be used as a resource for coordinating, promoting, and advertising the Section’s content and the many webinars and events the Section produces. The home page features promotion of upcoming webinars, which are free for Section members, and the site also now features advertisements for Section books.

Moving into the 2020–2021 bar year, our readers can expect to discover more features and more opportunities to engage with the Business Law Section through BLT. We will offer more video content on the site, more access to podcasts and other audio content through the site, and more ways for our committees, sponsors, and advertisers to connect with our members.

…Even more than we imagined!

By this year’s Virtual Section Annual Meeting, Businesslawtoday.org will have reached important milestones: In the 2019–2020 bar year, we will have distributed more content than ever through BLT: around 175 articles, 350 month-in-briefs, and 20 video interviews went live on BLT.

With the high volume we have been able to maintain the high quality… but only because of the incredible efforts of our full time dedicated staff and our stellar lineup of incredible volunteers. Huge thanks, kudos, and much appreciation go out to the Business Section’s Content Guru (because he is o-so-much-more than a mere “content guy”) Rick Paszkiet, aka keeper-of-the-slush-pile, aka breakfaster-in-chief. Rick juggles dozens of book projects and brings record-setting numbers of them to the finish line, while keeping his eye on incoming article proposals and managing a deep pile of unsolicited and solicited submissions, from which pieces are periodically selected, tamed, edited, and posted to the site. Meanwhile, double kudos and millions of thanks to fulltime Section BLT editor par excellence, Sarah Claypoole, who has managed the editorial process across the site from day one in a way that looks seamless to the outside and keeps all the glitches, author mishaps, and editorial challenges at bay. And meanwhile, Sarah has developed an uncanny ability to understand and stay on top of the Section’s content creation process across a multitude of committees and personalities, for which she is a tremendous asset to BLT and the Section.

Thank you very much to our Executive and Managing editors who have continued to source our regular month-in-brief pieces… and for the many times you have simply written them yourselves, and to our regular contributors and Contributing Editors. Your work to source, write, edit and simply turn over month-in-brief pieces along with a slew of stellar articles are what makes this site actually work.

As I complete my term as Editor-in-Chief of Business Law Today, I couldn’t be more confident about the coming transition. As of the Business Law Section’s Virtual Section Annual Meeting this September, my vice-editor-in-chief, Lisa Stark, takes over the Editor-in-Chief role. Lisa is an experienced M&A, corporate, and securities lawyer partner with K&L Gates in Wilmington DE, and she is a co-chair of the Jurisprudence Subcommittee of the Private Equity & Venture Capital Committee of the Business Section. Lisa has been a steadfast and indefatigable vice chair and has personally contributed much private equity, partnerships and M&A content to BLT. Thank you, Lisa, for your tremendous contributions to date, and congrats and good luck as you steer things forward.

The mail is slowing down. Packages and letters that used to arrive in days are in some cases taking weeks. Data suggests that since the beginning of July, on-time rates for delivery of first-class mail has slipped by 10–30 percent depending on the area and region. Although much of the focus of the media’s coverage concerning these delays has centered around the upcoming 2020 election and questions surrounding funding for the United States Postal Service (USPS), such delays can create serious issues concerning parties’ commercial agreements. Despite the fact that unquestionably more and more transactions are completed through the exchange of scanned and emailed documents, mailing requirements in contractual agreements are still common and remain a part of how business gets done. Many attorneys may not have thought about the “mailbox rule” since their contracts class in law school, so it is worth reexamining during this period of postal uncertainty.

The Mailbox Rule

The mailbox rule is a common-law concept of contract law that governs the time at which an offer is considered accepted. Section 63 of the Restatement (Second) of Contracts provides that “[u]nless the offer provides otherwise, . . . an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree’s possession, without regard to whether it ever reaches the offeror . . . .” In other words, an offer is accepted the moment it is placed in the mail. The rule notably excludes option contracts by stipulating “an acceptance under an option contract is not operative until received by the offeror.” Further, although an offer may be revoked at any time prior to acceptance, revocation is typically effective only at the time of receipt, whereas an acceptance is effective upon dispatch.[1]

Issues That May Arise

The Buchbinder Tunick & Co. v. Manhattan Nat’l Life Ins. Co. matter out of New York provides an interesting example of the legal and factual issues that can be at play concerning mailings. The case involved whether an 80-year-old insured in failing health, after falling behind on his insurance payments, timely mailed premium payments to extend his life insurance despite the insurance carrier’s notice of cancelation.

On August 28, Manhattan National Life Insurance Company sent Mr. Buchbinder a letter that it would go on to claim was a reminder that unless he sent payment by August 31, his life insurance policy would be canceled. However, the court rejected the claim that the letter was a reminder based on ambiguous language in the letter that could have been read to extend Mr. Buchbinder’s time to pay for 31 days based off the standard mailing time between New York and Ohio. The court reasoned that because the expected mailing time of the August 28th letter was five days, the letter could not have been intended as a reminder because it would not have been received by the insured until after expiration of his time to make the payment. Accordingly, the court determined the letter was in fact an offer to provide the insured additional time to keep his insurance by making a payment within the next 31 days.

However, after the offer letter, the insurance company’s system autogenerated an additional letter on September 17 canceling the insureds policy for nonpayment. Although the court found that the September 17 letter qualified as a revocation of the prior August 28 offer, on September 24 the insured mailed his premium check, thus accepting the August 28 offer under the mailbox rule. Without a clear answer in the record, the case was remanded to the trial court to answer the factual question of whether the insured received the insurance company’s September 17 revocation, which unlike acceptance of an offer, became effective only upon receipt.

Accordingly, whether the carrier was able to cancel coverage would turn on whether the carrier could prove when it mailed the revocation and, more importantly, when it was received by the insured. Although what ultimately occurred to Mr. Buchbinder’s policy does not appear available in the public record, it is easy to see the uphill battle the insurer would have if this played out in today’s climate. With reports suggesting that as much as 30 percent of first-class mail is delayed, a party may be able to present a compelling case against presuming standard delivery times and that delivery was made by a certain date.

Although things have probably not yet reached a point where courts will bring into question the longstanding doctrine of presumption of regularity, which requires a court to presume a letter or notice that is mailed is received by the addressee, such presumption may become open to attack if conditions worsen. In Republic of Sudan v. Harrison[2], the U.S. Supreme Court found that mail must be sent to a foreign minister’s office in his home country, not the embassy on U.S. soil, to be effective. The Court relied on section 66 of the Restatement (Second) of Contracts, which lays out the standards to ensure that acceptance is actually made upon dispatch. Outside of the “properly addressed” requirement relied on by the Court, section 66 offers insight into “other precautions” that may be relevant in light of recent concerns with the management of USPS:

The other precautions to be taken depend on what is ordinarily observed to insure safe transmission of similar messages. In cases of acceptance by mail, the postal regulations are ordinarily controlling on such matters as the necessity for prepayment of postage. In unusual circumstances, however, as when the mails are stopped by war, reasonable diligence may require more than compliance with postal regulations. Unless the offeror manifests a contrary intention, an acceptance is not effective on dispatch if the offeree knows or has reason to know that it will not reach the offeror.

Accordingly, if the trend of issues with the USPS continues or worsens, arguments may become available that current issues amount to “unusual circumstances” where mailing alone is inadequate.

What To Do?

Although the first answer that comes to mind is to not use the USPS, it is important for businesses to check the specific language in any contract to determine whether a specific method of delivery is required. This is particularly true in the case of insurance agreements, leases, and mortgage contracts, which often contain antiquated boilerplate language. These provisions must be strictly complied with because courts still regularly hold that delivery and notice provisions must be followed in accordance with the specific terms of the agreement.[3]

With that said, there are still some simple steps parties can take to protect themselves:

• Review your agreements and ensure you understand any method of transmission requirements.
• Where the agreement provides for methods beyond the USPS, use those methods.
• Document your mailings: if you are mailing a document that must be sent by first-class mail, additionally send an email providing a copy of the document and memorializing that it was mailed that day.
• Avoid sending offers and revocations that are not effective until receipt by mail and instead use means of instant communication where available.
• Ensure new agreements do not limit the means of notice to the USPS and modify existing agreements to allow for alternative means.
• Expect delays in receiving mailed materials and do not take adverse action until a reasonable time has passed.

Until the issues with the USPS are resolved, attorneys and businesses should take extra precautions to ensure they are protected.

[1] See e.g., Buchbinder Tunick & Co. v. Manhattan Nat’l Life Ins. Co., 219 A.D.2d 463, 466 (1st Dep’t 1995).

[2] Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1057 (2019)

[3] See e.g., JPMorgan Chase Bank, Nat’l Ass’n v. Nellis, 122 N.Y.S.3d 673 (2d Dep’t 2020) (“The plaintiff similarly failed to establish, prima facie, that it mailed a notice of default to the defendant by first-class mail as required by the terms of the mortgage as a condition precedent to acceleration of the loan.”).

The Small Business Reorganization Act of 2019 (SBRA),[1] effective February 19, 2020, has created timely opportunities for individuals to confirm a Chapter 11 plan. Prior to the enactment of this legislation, individuals who did not qualify for Chapter 13, generally because their debts exceeded statutory limits, were forced to use the business reorganization provisions in Chapter 11. These provisions subjected individuals to the cramdown requirements of the absolute priority rule and made it difficult for individual debtors to confirm a Chapter 11 plan of reorganization. Thankfully, however, mere months before the COVID-19 pandemic, Congress passed the SBRA and eliminated the absolute priority rule for qualifying small businesses, which can include individuals.

The absolute priority rule was derived under Chapter X of the Chandler Act, which was the predecessor to the Bankruptcy Code enacted in 1978.[2] Under the Bankruptcy Code, the absolute priority rule generally applies when a class of unsecured creditors did not vote in favor of the plan treatment (cramdown) and required the debtor to pay in full the allowed unsecured claims of the rejecting class if any junior interests, such as equity holders, were retaining their interest.[3] In the case of an individual, the Supreme Court held in Norwest Bank Worthington v. Ahlers^[4] that the individual debtor should be regarded as an equity class, junior to unsecured creditors. This made it extremely difficult for an individual to confirm a Chapter 11 plan unless the creditors consented or the creditors were receiving full payment. Alternatively, the debtor could perhaps propose a new value plan to get around the absolute priority rule and retain their interest in their property, but such plans were difficult because the Supreme Court required significant new value and monies’ worth up front, and a promise to provide future labor was not enough to qualify as new value.^[5]

Congress confirmed that the absolute priority rule applied to individual debtors through the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).^[6] This legislation appeared to make significant changes for individuals in Chapter 11 cases by acknowledging that individuals were subject to the absolute priority rule, but it did provide an exception: “in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115 . . . .” Section 1115, in turn, added to property of the estate in an individual Chapter 11 case income the debtor earned post-petition, thus making the individual Chapter 11 case similar to a Chapter 13 case. The big advantage was that there is no debt limit in Chapter 11; thus, the individual could confirm a plan by satisfying the requirements of section 1129(a)(15). This provision permitted a plan to be approved when the debtor paid his or her “projected disposable income” to be accumulated over a 60-month period.

Although insolvency professionals welcomed the new provisions under section 1129(a)(15), the confirmation requirements were still subject to the remaining confirmation requirements under section 1129(a), thus requiring the acceptance of creditors (contrary to Chapter 13), and when that acceptance was not forthcoming, the individual debtor was still subject to the absolute priority rule when a class of unsecured creditors objected to the plan. This would not have been a major obstacle, however, if the exception to the absolute priority rule that was added by BAPCPA had been interpreted broadly. Unfortunately for individual debtors, the failure of Congress to make it clear in any legislative history when BAPCPA was enacted that Congress intended the exception to be interpreted broadly (thus eliminating the absolute priority rule as it applied to individuals) created concerns among the circuit courts that the exception should be interpreted narrowly to only except the debtor’s post-petition income that was added by section 1115.^[7] Consequently, in a normal Chapter 11, individual debtors are unable to confirm a plan that allows them to retain their nonexempt property over the objection of unsecured creditors unless such objecting unsecured creditors are paid in full. Alternatively, individual debtors can retain their nonexempt property if they convince the court that they are able to provide “new value” that will circumvent the requirements of the absolute priority rule. Given that the requirements of the new value are rather stringent, this is rarely achieved.

Congress appears to have come to the rescue of individual debtors through the passage of the SBRA. This statute created a new Subchapter V within Chapter 11 that is available to electing small-business debtors who have secured and unsecured debts less than $2,725,625.00. Given that there is no exclusion for individuals, these provisions will apply to individuals, provided that their debts are primarily business debts, they otherwise fit within the debt limits, and they are “engaged in commercial or business activities.”[8] In response to the COVID-19 pandemic, Congress increased the debt limit for Subchapter V cases to $7,500,000.00 for one year, ending March 27, 2021.^[9]

Although there are many aspects of the new Subchapter V that are beneficial to an individual debtor, the most significant is the elimination of the absolute priority rule. The new Subchapter V does not include a limitation on equity retaining ownership if a class of allowed unsecured claims votes against the plan. A debtor may confirm a plan over the objection of an unsecured creditor class so long as (1) all “projected disposable income” of the debtor to be received in a three-year period, or such longer period as the court may approve but not to exceed five years, will be applied to the plan, or (2) the value of the property to be distributed under the plan in the three- to five-year period is not less than the “projected disposable income” of the debtor.^[10]

Other advantages of Subchapter V to an individual are as follows:

Plan exclusivity. Only the debtor may file a plan in Subchapter V.[11] Thus, there is no exclusivity period that expires after 120 days like a normal Chapter 11 case,[12] or 180 days in the case of a traditional small business.^[13]

Reduced administrative expenses. There are no U.S. trustees fees in a Subchapter V case,[14] thus reducing the administrative expenses to the debtor. Further, unless the bankruptcy court orders otherwise, a committee of creditors may not be appointed in a Subchapter V case and the individual debtor will not have to pay the expenses of such committee.[15]

Easier retention of counsel. In a typical Chapter 11, the court will not approve retention of the debtor’s counsel if they are owed any amounts for prebankruptcy services.[16] Subchapter V has a special rule and allows retention of counsel or other professionals so long as the debtor’s prepetition fees do not exceed $10,000.^[17] Thus, attorneys who provide services to an individual will still be able to represent the individual in the bankruptcy case even though there are some fees owed when the Subchapter V case is filed.

Modification of certain mortgages on principal residences. The restrictions on modification of a mortgage on the debtor’s residence were modified by Subchapter V to enable the debtor to modify such claims when the proceeds of the relevant mortgage were “used primarily in connection with the small business of the debtor.”^[18] Although most mortgages are typically purchase money security interests and would still be prohibited from modification, this unique provision in Subchapter V will allow mortgage modification if the individual debtor had used a majority of the value in the debtor’s home to finance business operations.[19]

Limited post-confirmation plan modifications. Only the debtor may modify a plan after confirmation in Subchapter V.^[20] This is a distinct advantage because section 1127(e) permits the trustee, U.S. trustee, or holders of an allowed unsecured claim to seek a modification to increase the amount of payments or extend or reduce the time for payments in a normal individual Chapter 11 case. Limiting plan modification to only the debtor excludes these parties from the threat of increasing plan payments when the debtor’s operations turn out to be more favorable than projected when the plan was confirmed. On the other hand, if the debtor’s projections were too generous, the debtor has the power to seek modification in order to reduce plan payments in a Subchapter V case. This modification right expires upon “substantial consummation”[21] when the plan is a consensual plan approved pursuant to section 1191(a), but can be accomplished at any time after confirmation when the plan is approved over the objection of a class of unsecured creditors pursuant to section 1191(b).

Paying administrative expenses over term of plan. Subchapter V permits the debtor to pay administrative expenses over the life of the plan, provided the plan was approved pursuant to the cramdown provisions of section 1191(b). A plan that is a consensual plan approved under section 1191(a) must provide for the payment of administrative expenses on the effective date of the plan in the same manner as a typical Chapter 11 plan under section 1129(a)(9)(A).^[22]

Possibility of early discharge. Subchapter V allows an individual to obtain a discharge on the effective date of the plan, provided the plan was a consensual plan approved under section 1191(a). ^[23] In a cramdown plan approved under section 1191(b), the debtor’s discharge does not occur until the completion of the plan payments.[24] This latter requirement is similar to the discharge granted under section 1141(d)(5) in a non-Subchapter V Chapter 11 case, subject, however, to the exceptions to dischargeability of certain debts under section 523, which continue to apply to the individual debtor in Subchapter V.[25]

No limitation on cramdown of car loans. Subchapter V does not incorporate the requirements of section 1325(a) (hanging paragraph) that requires a Chapter 13 debtor to pay the full amount of a personal motor vehicle loan incurred within 910 days prior to the bankruptcy filing instead of the value of that collateral that normally is required for a secured claim under section 506(b). This means that the individual in a Subchapter V case will be able to force the vehicle lender to accept payments equal to the value of the vehicle even though the value is less than the full amount of the vehicle loan.

Greater protection of the automatic stay. Subchapter V does not invoke the exceptions to the automatic stay under section 362(n) that applies to a “small business case” that is filed within two years after the confirmation or dismissal of a prior small business case.^[26] Thus, an individual in a Subchapter V case may file a second case within two years of the prior case and stay the actions of creditors that were pursuing the debtor.

Although there are many advantages to the Subchapter V for individual debtors, there are certain disadvantages that an individual must consider before heading down this path.

Limitations on eligibility. As previously discussed, there are debt limits for individuals seeking to take advantage of Subchapter V, and not less than 50 percent of the debts at issue must have arisen from the commercial or business activities of the debtor.[27] Furthermore, the debtor must be “engaged in commercial or business activities.” At least one court has ruled that an individual debtor met this requirement because he was “addressing residual business debt” arising from his defunct, closely held companies.[28]

Appointment of Subchapter V trustee. Each Subchapter V case requires the appointment of a trustee.^[29] This does not require that the debtor turn over operations to the trustee because the trustee’s duties are similar to a trustee under Chapter 12. The Subchapter V trustee is tasked primarily with assisting the debtor in proposing and confirming a plan as well as making distributions under the plan. The debtor is responsible for the Subchapter V trustee’s fees. When the debtor has proposed a consensual plan, the trustee may be removed upon the substantial consummation of the plan, which generally occurs on or about the effective date of the plan when payments have been initiated to creditors.^[30] In a nonconsensual plan, the trustee is responsible for making plan distributions to creditors until the plan is complete. At that time, the trustee will file a final accounting and a final report.

Plan deadlines and other mandatory procedures. A Subchapter V debtor has only 90 days to file a plan. This is a tighter deadline than a typical Chapter 11. Additionally, the court will hold a status conference within 60 days after the order of relief, and two weeks prior to that status conference the debtor must file a notice with the court explaining the debtor’s progress in confirming a consensual plan and providing such other information as the court may require.^[31] This cuts in half the timing requirement for filing a plan in a small business case as provided under section 1121(e). A debtor may obtain an extension of the plan filing deadline, but the grounds for such an extension are limited under the statute to circumstances beyond the debtor’s control.^[32]

Remedies upon plan default. Section 1191(c) requires the plan to provide appropriate remedies to protect the holders of claims in interest in the event that planned payments are not made. The normal requirements under Chapter 11 are merely that the plan is feasible pursuant to section 1129(a)(11), which does not require remedies to protect creditors. The only way to avoid this requirement is to convince the court with certainty that the debtor will be able to make all payments under the plan. Meeting such a standard is unlikely unless the plan already proposes a liquidation and more certain distributions to creditors. Any payment plan based on projected disposable income is not likely to have that certainty. The advantage provided to creditors by this provision is that when a plan includes a remedy, the creditor will have good grounds to force the debtor to pursue those remedies in lieu of dismissal of the Chapter 11 case or subsequent new filing of a Chapter 11 case (Chapter 22). It is also likely that courts will not view further reorganization as an adequate remedy, but rather may force a liquidation to protect the interests of creditors.

Despite these burdens on debtors, it is clear the advantages to eligible individuals under Subchapter V, particularly the elimination of the absolute priority rule, will make it substantially easier for individuals to confirm Chapter 11 plans. The plan will not depend on approval of an impaired class, and the debtor may retain assets without paying unsecured claims in full. These benefits, in tandem with the higher debt limits under the CARES Act through March 2021, will likely increase the number of individuals eligible for and taking advantage of the new Subchapter V. No doubt the current economic decline caused by the COVID-19 pandemic will result in a surge of debtors in need of bankruptcy protection. Thus, Subchapter V could not have been enacted at a more opportune time.

[1] Pub. L. No. 116-54, 133 Stat. 1079 (2019).

[2] H.R. Rep. No. 959, 95th Cong., 1st Sess. 413 (1978).

[3] 11 U.S.C. § 1129(b)(2)(B)(ii).

[4] 485 U.S. 197, 108 S. Ct. 963 (1988) (case involving an individual farmer).

[5] See Norwest, 485 U.S. at 202–06, 108 S. Ct. at 966–68 (rejecting argument that the “sweat equity” of the farmer after confirmation of the plan was sufficient new value for the farmer to retain his interest in farm).

[6] Pub. L. 109-8, 119 Stat. 23 § 321 (Apr. 20, 2005).

[7] See Zachary v. Calif. Bank & Trust, 811 F.3d 1191 (9th Cir. 2016); In re Ice House America, LLC, 751 F.3d 734 (6th Cir. 2014); In re Lively, 717 F.3d 406 (5th Cir. 2013); In re Stephens, 704 F.3d 1279 (10th Cir. 2013); In re Maharja, 449 B.R. 484 (Bankr. E.D. Va. 2011), aff’d , 681 F.3d 335 (4th Cir. 2012); In re Woodward, 537 B.R. 894 (8th Cir. BAP 2015).

[8] 11 U.S.C. § 101(51D) (defining “small-business debtor”).

[9] CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020).

[10] 11 U.S.C. § 1191(b), (c).

[11] Id. § 1189(a).

[12] Id. § 1121(d)(2).

[13] Id. § 1121(e).

[14] 28 U.S.C. § 1930(a)(6).

[15] See 11 U.S.C. §§ 1102(a)(3), 1181(b).

[16] See id. § 327(a) (authorizing retention of professional persons “that do not hold or represent an interest adverse to the estate, and that are disinterested persons”); id. § 101(14) (defining “disinterested person” as a person that “is not a creditor”).

[17] Id. § 1195.

[18] Id. § 1190(3).

[19] The recent case of In re Ventura, 2020 WL 1867898 (Bankr. E.D.N.Y. Apr. 10, 2020), identified certain factors to consider before allowing modification of a mortgage on a principal residence in Subchapter V.

[20] 11 U.S.C. § 1193.

[21] Id. § 1101(2).

[22] Id. § 1191(e).

[23] Id. § 1192.

[24] Id. § 1181(c).

[25] See id. §§ 523(a), 1141(d), 1181(c), and 1192(2).

[26] Id. § 362(n)(1).

[27] Id. § 101(51D).

[28] See In re Wright, 2020 WL 2193240 (Bankr. D.S.C. Apr. 27, 2020).

[29] Id. § 1183.

[30] Id. § 1101(2).

[31] Id. § 1188(c).

[32] Id. § 1188(b).