Jane H. Downey is a partner with Moore Taylor in West Columbia, South Carolina. She is certified by the South Carolina Supreme Court as a specialist in bankruptcy and debtor/creditor law and also as a mediator and arbitrator. In addition, the American Board of Certification has certified her as a specialist in business bankruptcy.
Downey represents creditors, debtors, and unsecured creditor committees in Chapter 7, 9, 11, 12, and 13 business and consumer cases, including bankruptcy litigation. She is on the list of mediators with the U.S. Bankruptcy Court for the District of South Carolina.
Downey currently serves on the editorial board of South Carolina Lawyer magazine and on the South Carolina Bar Pro Bono Committee and volunteers with the state bar’s Ask-a-Lawyer Program. She is the incorporating attorney and a past president and a member of the South Carolina Bankruptcy Law Association.
Downey is a frequent speaker on bankruptcy topics, particularly those involving domestic law, and is one of five attorneys at Moore Taylor voted by their peers to be recognized as Super Lawyers by Super Lawyers magazine. She is a graduate of Furman University and the Emory University School of Law.
Q: How did you gravitate into turnaround and restructuring work?
Downey: I had a fantastically entertaining professor in law school for my bankruptcy class. He was a judge in Nashville. He would fly to Emory University one day a week and teach a grueling three-hour bankruptcy class, but somehow he made the time pass quickly. That sparked my interest in bankruptcy.
In law school I tended to do better in code-oriented classes, such as tax and estates and bankruptcy, than I did in creative-type classes like torts and classes where I had to use my imagination more instead of go look at the answer. So the combination of all that got me interested in bankruptcy.
When I first got out of law school I went to the largest law firm in South Carolina, Nelson Mullins Riley & Scarborough, and a fantastic two-year program, where new attorneys could rotate the type of practice that they were in. That allowed us to see who we liked to work with and what type of law we liked to work on.
At that time, back in 1990, there were some interesting bankruptcy cases going on in South Carolina, such as Hilton Head, a resort that was in bankruptcy. I got to work on that and found the bar to be wonderful. The judges were very educated and professional and kind to new attorneys, so I gravitated for all of those reasons to bankruptcy law.
Q: How has your practice changed since the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted?
Downey: Back in 2005, when BAPCPA started, we had a rush to file and had a lot of individuals filing Chapter 7 until October and then had nobody filing for the rest of the year. It had everybody who did bankruptcy thinking about doing some other area of the law.
Then we had judges trying to interpret the statutes in a way that was consistent with the old laws to the extent that they didn’t contradict, where they could use a loose interpretation of the law to try to make the ruling equitable for everybody. It seemed like I was doing a lot of creditor law at the time, but it started changing to more debtor law. Maybe some of that was because in my consumer cases I was trying to get a little creative, think outside the box a little bit, about exceptions to rules that were limiting filers.
My practice became more debtor-oriented, not so much because of BAPCPA, but maybe because people were looking at other chapters of the Bankruptcy Code. Maybe they had small businesses. My practice started evolving to where it was finding a niche in small Chapter 11 cases. Maybe some of that was because of BAPCPA.
APCPA had more of an effect on individual Chapter 7 filers. I think that initially people thought that they just couldn’t file at all, which wasn’t correct, and then they started thinking that they had to file Chapter 13. Then we started finding exceptions. Maybe there’s more paperwork because of BAPCPA. There’s more due diligence that we do because of it. The cases, in turn, cost the debtors more in attorneys’ fees and take more time before they’re filed. But once they’re filed, because of all of that, they tend to go pretty smoothly.
The only thing that really happens now as a result of BAPCPA that I see is maybe somebody, for example, has too much debt to be in a Chapter 13, so we want them in Chapter 7. So sometimes we have to think outside the box, find debts that aren’t going to be dischargeable and that’s how they get to move to Chapter 7 or maybe they have assets that can be sold so that the creditors actually benefit from a quicker sale of an asset than to stay in a Chapter 13 and get paid over a long period of time.
I think there are different issues that have to be identified now or more work that has to be done because of BAPCPA, but I’m not sure the end result is any different. Although the filings are very low this year, I can’t really say that’s because of BAPCPA because it was enacted more than 10 years ago. I think it’s more because of the economy now.
Q: What have been some of your most gratifying or favorite cases along the way?
Downey: My favorite and most gratifying cases are my pro bono cases. People appreciate the work that we’ve done and the time we’ve taken. When someone comes into my office, they start out extremely stressed out over their finances, and within an hour of talking to me, you can just see the elephant lift off their chest. When they leave, they say that they feel so much better after having come in. That’s probably the most gratifying thing.
The most fun cases are probably Chapter 11 cases, when you have to reorganize and come up with solutions, negotiate with creditors, and work math problems to make all of the numbers work.
Q: Do you get your pro bono work through a program at your firm, or do you work with outside agencies or volunteer your services through some outside agency?
Downey: I get my pro bono work through the South Carolina Bar Pro Bono program.
Q: You mentioned that, just in general, when people come in they get some stress relief in that first hour. Do any particular cases come to mind?
One case that comes to mind happened about 20 years ago, and it was somebody who really did not have much of anything except for a bunch of finance company loans. At the end of the case, she gave me a present, a little silver-colored cooking utensil holder that you might put your spatula, cooking spoons, and things like that in. It probably didn’t even cost $5 or $10, but I still have it on my kitchen counter. Every time I cook, I think about her and it makes me a little more humble. It keeps me grounded to see that and think about her and people in need.
Q: Sometimes we forget how lucky we are.
Q: What role, if any, has your TMA membership played in your career?
Downey: I like the networking aspect of TMA. I like hearing what everyone’s work is and how all of the different members’ professions interact and are intertwined. It’s interesting to go to a TMA networking event and talk to somebody who might be a bankruptcy lawyer, somebody else who doesn’t do any bankruptcy but whose profession is to go into a company and reorganize it from a business perspective, or to meet somebody who loans these same companies money. It puts all of the pieces of the jigsaw puzzle together.
When I do a Chapter 11, I think about what this company needs from a professional standpoint. Of course I think of a lawyer and an accountant. Sometimes the company also might need a business consultant or an auctioneer or money to restructure, and I can find all of these components through TMA members.
Q: How did you originally learn about TMA?
Downey: I was invited to some lunches, and members of the South Carolina Bar who I respected were there. Because they were involved, I thought it must be worthwhile, great to be in, so I started paying attention to it. I was invited to more events and eventually became active in the organization.
Q: What advice would you have for someone who was new to the industry or was thinking about getting into the industry?
Downey: It’s a little bit of a slower time right now, so be patient. Use the time to try to get to know other people in the industry, so maybe attend the networking events, the luncheons, and seminars that are offered by TMA because right now you’ll have the time to do that. As the economy changes, you’ll get busier and might have less time to market yourself, but by building your contacts now, you’ll know who to call on when you have a case where you could use someone who is a TMA member.
Q: Let’s talk about what you like to do outside the office. What are you passionate about when you’re not working?
Downey: I have three teenage boys—well, one is 21 now, so I guess he isn’t a teenager anymore—so I certainly have my challenges raising them. I like to exercise, especially outdoors. I play tennis, jog, paddle board, and bicycle, and I love going to the beach.
Q: I was going to ask how you got into paddle boarding, but if you like to go to the beach, I take it you saw it there and wanted to give it a try.
Downey: That’s exactly right.
Q: Did you take to it right away?
Downey: I took a lesson because I didn’t know anything about it, and the lesson was pretty fun. My kids like to surf, so they got interested a little bit, to the point that it was something that I could do with them. Eventually I bought a board and went from there. I wouldn’t say I’m a big paddle board fan, but it’s something I enjoy.
Q: What might people who only know you in your professional capacity be most surprised to learn about you?
Downey: That’s hard for me to answer because I’ve been in this profession for 27 years, and bankruptcy is such a small bar that people know me pretty well. The thing with bankruptcy lawyers is that we’re different from other members of the bar. For example, most of the state court lawyers maintain their poker face. They come into a meeting and they keep everything close to the chest. They don’t want to reveal their secrets—their highs and lows about their cases. They’re just very secretive.
A bankruptcy lawyer walks into the room and just puts all the cards on the table. We tell it all. We tell the good stuff; we tell the bad stuff. Everybody is very open about the highs and lows, the ins and outs of the case. I guess that’s because everybody’s in a bad situation in bankruptcy and you’re trying to minimize the loss. So everybody’s very forthright about what they have going on. So I guess on a personal level, maybe we’re the same way.
But most people probably don’t know I sing in the church choir. Growing up, I sang in All State Chorus in Alabama and Kentucky, and then continued on singing in the Vanderbilt Choir and Furman Singers in college.