Attorneys who provide "bankruptcy assistance" to assisted persons are unambiguously included in the definition of "debt relief agencies."

Section 526(a)(4), which prohibits an attorney from advising an assisted person or prospective assisted person to incur more debt in contemplation of bankruptcy, violates the First Amendment. There are certain situations where it would likely be in the assisted person's, and even the creditors', best interest for the assisted person to incur additional debt in contemplation of bankruptcy.

Derivative standing is available to a creditor to pursue avoidance actions when it shows that a Chapter 7 trustee (or debtor-in-possession in the case of Chapter 11) is "unable or unwilling" to do so. However, if creditors could obtain derivative standing too readily, they could usurp the central role that the trustee or debtor-in-possession plays as the representative of the estate. Thus, the critical inquiry is whether the trustee (or debtor-in-possession) abused its discretion by unjustifiably refusing to pursue the creditor's proposed claims.

The creditor, at a minimum, must provide the bankruptcy court with specific reasons why it believes the trustee's refusal is unjustified. A creditor thus does not meet its burden with a naked assertion that 'the trustee's refusal is unjustified.' If presented with nothing more than this, the bankruptcy court may properly deny a creditor's motion without explanation. The creditor, not the bankruptcy court, has the onus of establishing the trustee unjustifiably refuses to bring the creditor's claim.