A. Reaffirmation Agreements when you look at the Bankruptcy Code

The use of the undue hardship standard in the reaffirmation agreement provision suggests that the undue hardship analysis should primarily focus on the current financial circumstances of a debtor in the Bankruptcy Code. The reaffirmation agreement provision is the only other place undue hardship appears in the Bankruptcy Code bes 59 See Brief for Professor Rafael Pardo as Amicus Curiae, p. 11–13, Murphy v as acknowledged by scholars. U.S. Dept. Of Educ., No. 14-1691 (1st Cir. Oct. 25, 2016). Under 11 U.S.C. § 524, the supply regulating reaffirmation agreements, an agreement that produces the debtor lawfully bound to settle a financial obligation that could otherwise be released is enforceable as long as a number of needs designed to safeguard the debtor’s fresh begin are typical happy. 60 11 U.S.C. § 524(m)(1).

Among these needs includes language that the contract must “not impose a hardship that is undue the debtor or perhaps a reliant associated with debtor. ” 61 Id. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) clarified the hardship that is“undue standard when you look at the reaffirmation agreement context by prov 62 Id. In the event that presumption arises, it may be rebutted only when the debtor has the capacity to 63 Id. Accordingly, the provision centers on the debtor’s ability to repay a financial obligation based on the debtor’s disposable earnings, which eventually steps the end result that the reaffirmation contract could have regarding the future livelihood regarding the debtor.

Whilst the Bankruptcy Code itself sheds some light on exactly what the undue hardship standard means, it really is well well worth searching beyond it with other provisions of federal code that apply the undue difficulty standard to discern an even more coherent way of interpreting and applying the conventional for purposes of § 523(a)(8) when you look at the Bankruptcy Code. By analyzing the undue hardship standard into the context of general public security benefits, employment discrimination, pupil school funding eligibility, income tax re payment extensions, social safety advantages, and breakthrough in civil litigation, typical threads exist that declare that an assessment of good faith or conduct generally speaking in an undue difficulty analysis is misguided. In reality, other law that is federal strong support for the summary that Congress meant undue difficulty to spotlight the effect or affect an so-called difficulty is wearing an individual as opposed to assessing the cause of the difficulty, whether a person has made good faith work to prevent their hardship https://speedyloan.net/installment-loans-il, and if the hardship will persist.

B. Public Safety Officer Death Benefits

With regards to cons 64 See Brief for Professor Rafael Pardo as Amicus Curiae, p. 11–13, Murphy v. U.S. Dept. Of Educ., No. 14-1691 (1st Cir. Oct. 25, 2016). A prime exemplory case of this can be based in the Public Safety Officers’ pros Act, which established an application to prov 65 34 U.S.C. § 10281(m). The provision, 34 U.S.C. § 10281(m), which offers the expression undue difficulty, concerns collection actions of benefits which can be disbursed pursuant to a statute enacted retroactively or in mistake, and reads in whole the following: “The Bureau may suspend or end collection action on a sum disbursed pursuant up to a statute enacted retroactively or else disbursed in mistake under subsection (a) or (c) of the part, where such collection could be not practical, or would cause undue hardship to a debtor whom acted in good faith. ” 66 Id. Easily put, an undue hardship functions as a protection against collection actions for benefits disbursed in error or advantages disbursed under a statute enacted retroactively.

Undue difficulty in this context will not be interpreted in the event legislation, regulations, or gu 67 Duncan v. Walker, 533 U.S. 167, 174 (2001). A statute should not be interpreted in a way that renders a word or phrase superfluous when such an interpretation can be avo 68 United States v. E-Gold, Ltd., 550 F. Supp in other words. 2d 82, 93 (D.D.C. 2008). If the undue hardship standard had been to add an inquiry into good faith, the second half of § 10281(m) with the clause “acted in good faith” will be insignificant, or even wholly superfluous, because the undue difficulty analysis would currently add an inquiry to the good faith associated with the debtor. The Supreme Court has clarified, it’s “reluctant to deal with terms that are statutory surplusage” in virtually any environment. ” 69 Duncan v. Walker, 533 U.S. At 174; see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995); see also Ratzlaf v. United States, 510 U.S. 135, 140 (1994) (“judges should wait to deal with statutory terms as surplusage in almost any environment). This exemplory instance of statutory construction that produces an express difference between undue hardship and good faith provides strong help when it comes to summary that a meaning for undue difficulty within the bankruptcy context must not add facets that evaluate good faith efforts or pre-bankruptcy conduct that is debtor’s.

C. Employment Discrimination

The effective use of the hardship that is undue being a protection for an employer whom cannot make rooms for a member of staff additionally supports the final outcome that an undue difficulty analysis should concentrate on an indiv 70 See Gregory S. Crespi, effectiveness Rejected: Evaluating Undue Hardship Claims underneath the People in america with Disabilities Act, 26 Tulsa L. R. 1, 2–3 (1990). Especially, the statute provides that discriminating:

Against an indiv that is qualified 71 42 U.S. C § 12112.


Похожие игры