Professor Mark S. Scarberry, Resident Scholar, Fall 2007

Mark S. Scarberry is a professor at Pepperdine University School of Law in Malibu, Calif., where he teaches bankruptcy, commercial law, remedies and constitutional law. Prof. Scarberry was an associate in the Los Angeles office of Jones Day before joining Pepperdine in 1982. He is a coauthor of the Thomson/West chapter 11 casebook Scarberry, Klee, Newton & Nickles, Business Reorganization in Bankruptcy: Cases & Materials (3d ed. 2006), with a fourth edition coming out soon. Prof. Scarberry is a former ABI Robert M. Zinman Resident Scholar (fall 2007) and testified before the Senate Judiciary Committee in December 2007 on bankruptcy legislation designed to respond to the mortgage crisis, subsequently helping to organize the Pepperdine Law Review's 2009 symposium on the mortgage crisis. He has also prepared materials used to train lawyers to provide pro bono consumer bankruptcy services as well as materials for ABI's consumer bankruptcy webinars. Prof. Scarberry has participated in bankruptcy training programs in China and Romania, and was program coordinator, participant and presenter for the Global Judges Forum—Commercial Enforcement and Insolvency Systems, held in 2003 at Pepperdine, which was cosponsored by the World Bank and attended by more than 100 judges from 60 countries. Prof. Scarberry received his A.B. magna cum laude from Caltech and Occidental College and his J.D. in 1978 from UCLA Law School, where he graduated first in his class.

Resident Scholar Letter

The subprime mortgage crisis hit just as I started my service during the fall of 2007 as the thirteenth Robert M. Zinman Scholar in Residence. As a result, I spent much of my time keeping track of proposed legislation in the Congress - both legislation intended to deal with foreclosures and legislation intended to deal with mortgage origination practices - and responding to numerous related media requests.

The bills that relate to mortgage origination include H.R. 3913, which would enact the 'Mortgage Reform and Anti-Predatory Lending Act of 2007' ('MRAPLA'). My summary of MRAPLA for the ABI Legislation Committee Newsletter can be found here.

The foreclosure-related bills would allow modification of home mortgages in chapter 13 to varying degrees under various circumstances. A chart that I prepared for the ABI web page comparing the bills received substantial attention and was reprinted in the Spring 2008 N.Y. Real Property Law Journal. Near the end of my service as scholar in residence I had the privilege of testifying on those bills before the Senate Judiciary Committee (written testimony and hearing webcast available here). My written responses to follow-up written questions from the Senators should appear on the committee's web page shortly. All of this led to my being asked to be a luncheon speaker at the January, 2008 Association of American Law Schools (AALS) annual meeting (for the Section on Financial Institutions and Consumer Financial Services). In addition, I will be presenting a paper on these issues (particularly the proposed home mortgage strip down in chapter 13) at the AALS Annual Meeting in San Diego in January, 2009 (at the meeting of the Section on Creditors' and Debtors' Rights). I am also an organizer for the Pepperdine Law Review symposium to be held on April 17, 2009 (at the law school in Malibu) entitled Bringing Down the Curtain on the Current Mortgage Crisis and Preventing a Return Engagement.

The new ABI Consumer Webinar series premiered while I was the scholar in residence. I had the opportunity to write the materials for the first two webinars and grew to love the 2005 BAPCPA even less than previously.

Much of the rest of my time was spent analyzing the Supreme Court's decision in Travelers Casualty & Insurance Co. of America v. Pacific Gas & Electric, 127 S. Ct. 1199 (2007) and writing a law review article for the ABI Law Review: Interpreting Bankruptcy Code Sections 502 and 506: Post-Petition Attorneys' Fees in a Post-Travelers World, 15 ABI L. Rev. 611 (2007) (download available on SSRN here). As a result, on Sept. 5, 2008 I will be debating the highly-successful Supreme Court advocate G. Eric Brunstad (who won the Travelers case) at the 16th Annual Southwest Bankruptcy Conference in Las Vegas.

I was also asked to give the luncheon speech at the 16th Annual Bankruptcy Battleground West in Santa Monica, California, in February, 2008, shortly after my stint as scholar in residence ended. The speech, which was graciously received by the ABI members in attendance, was entitled Statutory Interpretation and the Rule of Law.

I want to thank the ABI and its generous members for giving me the opportunity to serve as your scholar in residence. It was a great experience working with Sam Gerdano, Felicia Turner, and the wonderful staff at ABI. Everyone was gracious. I hesitate to single out any particular staff member, but the great media interest stirred up by the subprime crisis meant that I spent a lot of time working with John Hartgen, ABI's Public Affairs Manager. I want to thank him particularly for his welcoming attitude, great professionalism, and willingness to share his insights into how to deal with the media. It was also a treat to spend a semester in the DC area, with all that it offers. (Family trips to the caverns in the Shenandoah Valley, to Gettysburg, and to Amish country were highlights.)

Again, to the ABI and its generous members, to Sam, to Felicia, and to the ABI staff, thank you!

Mark S. Scarberry