In Re Plourde
American Express Bank, FSB, appeals from the bankruptcy court‘s order disallowing
Although the combatants initially locked horns over allowance of the AmEx and eCast claims, the scope of the contest narrowed in the course of the appeal. At oral argument, the trustee acknowledged that the estate is indebted to each creditor, but he pressed his point that neither provided sufficient evidence to support payment as a general unsecured claim. As he had in the lower court, he argued that each creditor‘s claim comprised principal, interest, and other fees such that, without a detailed itemization of the basis and timing of their charges, the court could not determine the priority distribution their claims should be accorded.
In the end, we agree that the claims are not entitled to share as general unsecured claims1 because both AmEx and eCast failed to prove their entitlement to the distributional status they sought. Accordingly, we REVERSE disallowance of AmEx‘s claim and AFFIRM allowance of eCast‘s claim, but do so with an accompanying determination that their allowed claims are entitled to no better treatment than the priority provided under
JURISDICTION
Before addressing the merits, we must determine our jurisdiction. See Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724 (1st Cir. BAP 1998). We have jurisdiction to hear appeals from: (1) final judgments, orders, and decrees; or (2) with leave of court, from certain interlocutory orders.
STANDARD OF REVIEW
We review the bankruptcy court‘s findings of fact for clear error and conclusions of law de novo. See T.I. Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir. 1994). To resolve the issues on appeal, we must interpret and apply
BACKGROUND
1. The Case and Claims
Robert and Debra Plourde filed a voluntary chapter 7 petition in October 2005. Their schedules listed multiple credit card debts.
AmEx filed a proof of claim for an unsecured, nonpriority claim in the amount of $42,452.61, designated Claim #4 on the bankruptcy court‘s claims register. AmEx utilized Official Form 10,3 and indicated, by failing to check a particular box in Part 4, that no “interest or other charges in addition to the principal” constituted a part of its claim. Attached to the form was one page from a credit card account statement dated October 14, 2005, issued to “Debra A. Plourde and Elect. Contr/Assoc.” The statement showed a $42,452.61 balance and indicated that the account was “cancelled and suspended.” Although the Plourdes listed two unsecured, nonpriority debts to AmEx in Schedule F, neither corresponded with the debt set out in Claim # 4.
Also employing Official Form 10,4 eCast filed its proof for an unsecured, nonpriority claim in the amount of $6,813.06, designated Claim # 18 on the bankruptcy court‘s claims register. In the same manner as AmEx, eCast indicated its claim consisted of principal only (i.e., no “interest or other charges“). Attached to the claim form was a single-page computer-generated document entitled “Account Summary.” It identified Robert Plourde as the debtor, and set out the bankruptcy case number, the filing date, the last four digits of an account number, and a listing of statement balances for June 9, 2005 through November 9, 2005. The Plourdes scheduled no debts to eCast, but did schedule an unsecured obligation in the amount of $6,309.75 to “The GM Card,” bearing the same account number eCast had listed for Claim # 18.
2. The Claims Objections
The trustee insisted that AmEx and eCast be put to their proof. AmEx‘s Claim #4 was deficient in his view because:
With respect to Claim # 18, the trustee stated that: (1) although the Plourdes’ schedules listed a debt to The GM Card with an account number that matched the account number listed by eCast, the claim amount in the schedules was less than the amount set forth in Claim # 18; and (2) although Claim # 18 seemed to include interest and other charges, eCast‘s proof of claim form did not acknowledge them or itemize them. As a result, he argued that Claim # 18 did not conform with the requirements of
Shortly thereafter, the creditors’ counsel provided documentation intended to address the trustee‘s objections.5 With respect to Claim # 4, he provided: (1) credit card account statements issued to “Debra A. Plourde and Elect. Contr/Assoc.” for October 2004 through June 2005; and (2) a document that purported to be the credit card agreement between AmEx and Mrs. Plourde. With respect to eCast‘s Claim # 18, he provided credit card account statements for December 2004 through July 2005.6 eCast also filed another proof of claim, designated Claim #28, which amended Claim # 18, reducing the sum from $6,813.06 to $6,778.06. The reduced amount remained greater than the GM Card debt scheduled by the Plourdes. Attached to Claim #28 were six monthly credit card account statements (February 2005 through July 2005).
After an initial hearing, AmEx and eCast filed a formal response to the trustee‘s objections, arguing, inter alia, that itemized statements (relating to interest and other charges, as required by Official Form 10) were not necessary because:
For an unsecured revolving debt instrument such as a credit card account, the filing of bankruptcy effectively cancels the account. The accumulation of interest and other charges on the account also cease as of the petition date for any account that is open and active on the petition. A claim filed for a credit card account, therefore, represents a “snapshot” of the account as of the filing of the Debtor‘s petition. The claim amount is the outstanding balance on the Debtor‘s account on the petition date. There is no unmatured interest. By any practical characterization, the balance owed on the petition date is all principal. It is not subject to separate interest, fee, and principal components such as would be the case with a secured claim.
Response of American Express Bank and eCast Settlement Corporation to Trustee‘s Objections to Claim Numbers 4 and 18.
In turn, the trustee argued that the AmEx and eCast proofs of claim were “misleading and incomplete“; that, despite his requests, each had failed to itemize the
Finally, the trustee sought an award of attorney‘s fees pursuant to New Hampshire state law,
The bankruptcy court ultimately convened a final hearing, accepted briefs and took the matter under submission.
3. The Decision Below.
The bankruptcy court sustained the trustee‘s objection as to AmEx‘s claim, disallowing it entirely. It allowed eCast‘s claim for $6,309.75, the amount the Plourdes had scheduled as The GM Card debt, but less than eCast had sought.
In its lengthy decision, the bankruptcy court concluded that Claim #4 did not establish the prima facie validity of AmEx‘s claim because it did not include the applicable credit card agreement or any evidence itemizing the charges included in the claim. Although AmEx provided a copy of the original credit card agreement, the court noted that the agreement‘s terms were not fixed. There was no way to ascertain whether, during the life of the agreement, AmEx may have exercised its unilateral right to impose additional or different terms.8 Consequently, the bankruptcy court concluded that “in the absence of any evidence of the contractual charges that constitute AmEx‘s [Claim # 4], this Court can make no finding that any of those charges are either allowable under
The court allowed eCast‘s claim as a general unsecured claim in the amount the Plourdes scheduled for The GM Card, $6,309.75. It observed that the Plourdes had acknowledged the debt by scheduling
Finally, the bankruptcy court denied the trustee‘s request for an award of attorney‘s fees, which he had sought under
On appeal, AmEx challenges its claim‘s disallowance, while the trustee challenges allowance of eCast‘s claim and the denial of his request for attorney‘s fees.
DISCUSSION
I. Filing and Allowance of Claims
A. Sections 501 and 502 and Bankruptcy Rule 3001-Claims Allowance
Sections 501 and 502 govern the filing and allowance of creditor claims in bankruptcy proceedings. See Travelers Cas. & Sur. Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). When a debtor files for relief, each creditor is entitled to file a proof of claim against the debtor‘s estate pursuant to
The Bankruptcy Code itself does not prescribe what documentation, if any, must accompany a proof of claim. However, the Federal Rules of Bankruptcy Procedure, which provide the procedural framework for the filing and allowance of claims, regulate the form, content, and attachments for proofs of claim.
Official Form 10 instructs the claimant to “attach copies of supporting documents, such as promissory notes, purchase orders, invoices, itemized statements of running
In order to rebut the prima facie evidence a proper proof of claim provides, the objecting party must produce “substantial evidence” in opposition to it. See In re Long, 353 B.R. at 13; see also United States v. Clifford (In re Clifford), 255 B.R. 258, 262 (D.Mass.2000). If the objection is substantial, the claimant “is required to come forward with evidence to support its claims ... and bears the burden of proving its claims by a preponderance of the evidence.” Tracey v. United States (In re Tracey), 394 B.R. 635, 639 (1st Cir. BAP 2008) (citing In re Organogenesis, Inc., 316 B.R. 574, 583 (Bankr. D.Mass.2004)).12
eCast, on the other hand, produced no agreement, but relied upon the Plourdes’ scheduling of the identically-numbered GM Card debt, with a balance approximating the amount of eCast‘s proof of claim. For the bankruptcy judge, that was sufficient proof to allow eCast‘s claim, granting the schedule evidentiary weight notwithstanding its hearsay character as to the trustee.13 He credited the Plourdes’ schedule and considered it evidence supporting liability as a hearsay statement imbued with sufficient indicia of reliability to be admissible under the federal evidence rules’ residuary exception to the hearsay rule.14 The correctness of that conclusion, however, rests on the exception‘s applicability, which is questionable. One of the rule‘s requirements is that the hearsay statement “is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts....” Can it really be said that a statement in the debtors’ schedules is “more probative” on the question of liability on the account than the creditor‘s own records? That the creditor cannot be expected to procure and proffer its own records to support its claim?15
But we need not resolve those issues. The trustee concedes that the Plourdes’ bankruptcy estate is liable on both claims.
B. Distributional Priorities— § 726
Under
But a claim‘s allowance merely establishes it as a charge against the estate. Its distributional priority is separately addressed by
A party in interest may object to a claimant‘s right to be paid as a general unsecured claim. In such instances, when a substantial objection to the claimed priority is interposed, the claimant shoulders the burden of proving its entitlement to payment under
In most Chapter 7 cases, like this one, a claim holder‘s “rung” on the priority “ladder” created under section 726 is crucial because the estate assets are limited. There are usually insufficient assets to pay all claimants in full, and section 726(b) mandates pro rata distribution among all claimants at each level, or rung of the priority ladder, with an absolute priority cutoff. All allowed claimants at a particular level or rung of the ladder must be paid in full before any estate funds can be distributed to holders of claims at the next lower rung. Thus, the race among claimants is to reach the highest rung on the claims ladder.
In re Stoecker, 151 B.R. 989, 995 (Bankr. N.D.Ill.1992), rev‘d on other grounds, 179 B.R. 532 (N.D.Ill.1994).
There is no presumed, or “default,” “rung” on the priority ladder; creditors are not automatically assigned to the “general unsecured” pool. Rather, each creditor must demonstrate its entitlement to distribution at a particular level. See Amarex, 853 F.2d at 1530 (“[T]he burden of proving entitlement to a priority is on the person claiming priority.“). Otherwise, a claimant may be provided priority at a higher level than that to which it is entitled, watering down the dividend provided to creditors the legislation prefers. This would be contrary to the predominant goal of the Bankruptcy Code “to secure equal distribution among [similarly situated] creditors.” See Howard Delivery Serv. v. Zurich Am. Ins. Co., 547 U.S. 651, 655, 126 S.Ct. 2105, 165 L.Ed.2d 110 (2006); Bethlehem Steel Corp., 479 F.3d at 172 (“Because the presumption in bankruptcy cases is that the debtor‘s limited resources will be equally distributed among his creditors, statutory priorities are narrowly construed.“).
Having limned the contours of claims allowance and priority with respect to substance and process, we now turn to the remaining disputes.
C. The AmEx and eCast Claims
1. Sufficiency of the Proofs of Claim
That neither AmEx‘s nor eCast‘s proof of claim was entitled to be treated as prima facie evidence of a valid claim could not be plainer. To begin, neither noted on the form that its claim included “interest or other charges.” That representation was untrue and the trustee properly took exception to it.20
The defects in the creditors’ logic are manifest. Their claims are not composed purely of principal just because they say so.21 The trustee is entitled to know what charges were assessed and the contractual basis for each charge. These creditors not only denied that interest or other charges were included in their claims, they failed to provide itemizations sufficient for the trustee to ascertain the bases for the claims or the effective terms of the credit agreements in force at the time the accounts were debited.22
The components of a claim can be critical. Examining a claim in light of interest and fees added to the account prepetition may have a lot to say about all or part of the claim‘s allowance (say, should consumer protection laws be implicated). In addition, by assigning lower priority to claims to the extent they include fines, penalties, forfeitures, or damages that are not compensation for “actual, pecuniary loss,” the Code promotes equal treatment for creditors, aiming to distribute funds in respect to actual losses, before channeling them to pure penalties.23
Citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), AmEx and eCast contend that they were not required to identify the prepetition interest and other charges that contributed to their claim because such charges can never be relegated to the subordinated priority of
2. The Failures of Proof
Faced with the trustee‘s objections to their claims, and his insistence that the creditors provide sufficiently detailed account summaries so that he could ascertain the nature, amount, and timing of, as well as the contractual bases for, the interest and other charges bound up in their claims, AmEx and eCast simply stonewalled. By refusing to provide or introduce evidence that established the nature of such charges, they failed to sustain their burden of demonstrating their claims (now their allowed claims) should be entitled, in their full amounts, to share in the estate as general unsecured claims. At the same time, neither creditor has provided the information necessary to discern what parts, if any, of their claims should be accorded general unsecured status under
Under the circumstances, we conclude that, although allowed, the AmEx and eCast claims must be paid (entirely) only to the extent funds are available for distribution to
II. The Trustee‘s Fee Request
The trustee argues that the bankruptcy court erred in denying his request for
“It is well settled that arguments made in a perfunctory manner below are deemed waived on appeal.” F.D.I.C. v. World Univ., Inc., 978 F.2d 10, 16 (1st Cir.1992). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work, create the ossature for the argument, and put flesh on its bones.” U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).
Here, the trustee did not request attorney‘s fees as part of his initial claims objection, but asserted it in a single paragraph in his reply to AmEx‘s and eCast‘s response to his claims objection (filed on June 6, 2006). App. Tab E, at 89. AmEx and eCast did not file any further responsive pleading and therefore did not object to or otherwise address this issue. It is unclear whether the issue was raised and/or argued at the June 13, 2009, hearing on the claims objection as the trustee has not provided a copy of the transcript on appeal. Although the parties filed post-hearing supplemental briefs, none (including the trustee) addressed the issue.
No basis exists upon which to determine that the trustee made anything other than a perfunctory argument regarding his claim for attorney‘s fees before the bankruptcy court. Therefore, we will not address the issue here. See World Univ., 978 F.2d at 16.
CONCLUSION
Because the trustee concedes the estate‘s liability for the debts to AmEx and eCast, their claims must be deemed allowed. But because we conclude that AmEx and eCast failed to prove their claims were entitled to general unsecured status, they must be afforded priority under
We therefore AFFIRM the allowance of eCast‘s claim, REVERSE disallowance of AmEx‘s claim, and order that each is entitled to treatment under
Notes
The term “general unsecured claim” is nearly universally considered by bankruptcy courts and practitioners to mean an unsecured claim that will receive distribution from the estate via
Unless otherwise noted, all references to statutory sections or to the “Bankruptcy Code” are to the Bankruptcy Reform Act of 1978, as amended prior to April 20, 2005,
The bankruptcy court stated:
After all, regardless of the provisions of the credit card agreement, the card issuer may have exercised its right under the agreement to impose additional or different terms. Under the terms of the typical credit card agreement, including the AmEx agreement in this case, the terms that exist between the issuer and the consumer at any particular time may only be determined if a listing or historical summary of charges and interest is provided. The agreement itself is at best only evidence of the existence of a contractual relationship, but is little or no evidence of the terms of the contract from time to time. The need to provide details on the terms and conditions of the contract, and the actual charges and interest imposed, from time to time may be onerous from the credit card issuers‘s [sic] point of view. However, such difficulties flow from the business model that the credit card industry has voluntarily adopted. So long as credit card issuers wish to maintain sole discretion to vary the terms of their agreement with a consumer at any time, and from time to time, they must accept the legal consequences of that business model. One of those consequences is that they may need to provide details of the charges and interest imposed by them in response to a proper objection to a proof of claim in a bankruptcy proceeding.
The statute, which governs the collection of attorney‘s fees in consumer cases, provides:
If a retail installment contract or evidence of indebtedness provides for attorney‘s fees to be awarded to the retail seller, lender or creditor in any action, suit or proceeding against the retail buyer, borrower or debtor involving the sale, loan or extension of credit, such contract or evidence of indebtedness shall also provide:
I. Reasonable attorney‘s fees shall be awarded to the buyer, borrower or debtor if he prevails in
(a) Any action, suit or proceeding brought by the retail seller, lendor or creditor; or
(b) An action brought by the buyer, borrower or debtor; and
II. If a buyer, borrower or debtor successfully asserts a partial defense or set-off, recoupment or counterclaim to an action brought by the retail seller, lender or creditor, the court may withhold from the retail seller, lender or creditor the entire amount or such portion of the attorney fees as the court considers equitable.
Section 502(b) provides:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
(2) such claim is for unmatured interest;
(3) if such claim is for a tax assessed against property of the estate, such claim exceeds the value of the interest of the estate in such property;
(4) if such claim is for services of an insider or attorney of the debtor, such claim exceeds the reasonable value of such services;
(5) such claim is for a debt that is unmatured on the date of the filing of the petition and that is excepted from discharge under section 523(a)(5) of this title;
(6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds—
(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of—
(i) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed or the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates;
(7) if such claim is the claim of an employee for damages resulting from the termination of an employment contract, such claim exceeds—
(A) the compensation provided by such contract, without acceleration, for one year following the earlier of—
(i) the date of the filing of the petition; or
(ii) the date on which the employer directed the employee to terminate, or such employee terminated, performance under such contract; plus
(B) any unpaid compensation due under such contract, without acceleration, on the earlier of such dates;
(8) such claim results from a reduction, due to late payment, in the amount of an otherwise applicable credit available to the debtor in connection with an employment tax on wages, salaries, or commissions earned from the debtor; or
(9) proof of such claim is not timely filed, except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) of this title or under the Federal Rules of Bankruptcy Procedure, except that a claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for relief or such later time as the Federal Rules of Bankruptcy Procedure may provide, and except that in a case under chapter 13, a claim of a governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on or before the date that is 60 days after the date on which such return was filed as required.
Section 502 lists nine bases for disallowing claims. Failure to file a proof of claim meeting the requirements of Bankruptcy Rule 3001 and Official Form 10 is not among them. See
Courts differ as to whether § 502(b) sets forth the exclusive bases upon which a claim may be disallowed, or whether a court may disallow a claim for reasons other than those listed in that subparagraph. Compare Heath v. American Express Travel Related Servs. Co., Inc. (In re Heath), 331 B.R. 424 (9th Cir. BAP 2005); Dove-Nation v. eCast Settlement Corp. (In re Dove-Nation), 318 B.R. 147 (8th Cir. BAP 2004); In re Moreno, 341 B.R. 813 (Bankr.S.D.Fla.2006); In re Burkett, 329 B.R. at 828-29; In re Shaffner, 320 B.R. 870 (Bankr.W.D.Mich.2005); In re Mazzoni, 318 B.R. 576 (Bankr.D.Kan.2004); In re Shank, 315 B.R. 799 (Bankr.N.D.Ga.2004); In re Kemmer, 315 B.R. 706 (Bankr.E.D.Tenn. 2004); In re Cluff, 313 B.R. 323 (Bankr. D.Utah 2004), aff‘d, 2006 WL 2820005 (D.Utah Sept.29, 2006); with In re Stoecker, 5 F.3d 1022 (7th Cir.1993) (adopting nonexclusive view); eCast Settlement Corp. v. Tran (In re Tran), 369 B.R. 312 (S.D.Tex.2007); In re Taylor, 363 B.R. 303 (Bankr.M.D.Fla.2007); In re Armstrong, 320 B.R. 97 (Bankr.N.D.Tex. 2005); In re Henry, 311 B.R. 813 (Bankr. W.D.Wash.2004); In re Jorczak, 314 B.R. 474 (Bankr.D.Conn.2004). We note these divergent views here, although, because allowance of the claims is no longer the issue in this appeal, we need not choose sides.
Section 726(a) provides:
Except as provided in section 510 of this title, property of the estate shall be distributed—
(1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title, proof of which is timely filed under section 501 of this title or tardily filed on or before the earlier of—
(A) the date that is 10 days after the mailing to creditors of the summary of the trustee‘s final report; or
(B) the date on which the trustee commences final distribution under this section;
(2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (2), (3), or (4) of this subsection, proof of which is—
(A) timely filed under section 501(a) of this title;
(B) timely filed under section 501(b) or 501(c) of this title; or
(C) tardily filed under section 501(a) of this title, if—
(i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim under section 501(a) of this title; and
(ii) proof of such claim is filed in time to permit payment of such claim;
(3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title other than a claim of the kind specified in paragraph (2)(C) of this subsection;
(4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim;
(5) fifth, in payment of an interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), (2), (3), or (4) of this subsection; and
(6) sixth, to the debtor.
Section 510(c)(1) of the Bankruptcy Code explicitly allows bankruptcy courts to reorder existing priorities among creditors “under principles of equitable subordination.”
Bankruptcy courts do indeed have some equitable powers to adjust rights between creditors. See, e.g.,
Raleigh v. Ill. Dep‘t of Revenue, 530 U.S. 15, 24, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000).
The trustee‘s objection to the AmEx proof of claim stated, inter alia, “In addition, it is possible, and no doubt likely, that the claim includes interest and other charges that are not reflected on the statement attached to the proof of claim, despite the fact that section 4 of the proof of claim requires that the claimant, if it is seeking interest and other charges in addition to the principal, to so indicate and to attach an itemized statement of all interest or additional charges.” As to eCast‘s claim, the trustee objected in similar terms.
The objection was sufficiently substantial to overcome the possibility that the proofs of claim would be given prima facie evidence of the claims’ validity as general unsecured claims. Unless one accepts the silly sidestep suggested by AmEx and eCast, it is virtually inconceivable that a credit card claim would not include interest and “other charges.” “There are two kinds of creature in the jungle: the tiger and the iguana. The tiger sets the fees, and the iguana pays them.” Mark Halperin, Memoir from Antproof Case at 463 (Harcourt Brace & Co. 1995). Credit card issuers are the tigers of consumer finance. See Testimony of Elizabeth Warren, Leo Gottlieb Professor of Law, Harvard Law School, before the U.S. Senate Committee on Banking, Housing, and Urban Affairs hearings “Examining the Billing, Marketing, and Disclosure Practices of the Credit Card Industry, and Their Impact on Consumers” (January 25, 2007); see also Johnson M. Tyler, “Exempt Income Protection Act Better Protects Strapped Debtors,” N.Y. Law Journal, Jan. 27, 2009, at 4; U.S. General Accounting Office, “Credit Cards: Increased Complexity in Rates and Fees Heightens Need for More Effective Disclosure to Consumers” (GAO 06-929) (October, 2006); Tamara Draut, “The Plastic Safety Net, the Reality Behind Debt in America” (2005) (report released by public policy groups, Demos and the Center for Responsible Lending, discussing the truth behind the credit card debt explosion in the United States); Mitchell Pacelle, “Growing Profit Source for Banks: Fees From Riskiest Card Holders,” Wall St. J., July 6, 2004 at A1 (reporting that credit card fees in 2003 rose to 33.4 percent of total credit card revenue, and that the credit card industry reaped $ 11.7 billion from penalty fees).