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). An agreement that makes the debtor legally bound to repay a debt that would otherwise be discharged is enforceable only if a variety of requirements meant to safeguard the debtor’s fresh start are all satisfied under 11 U.S.C. § 524, the provision governing reaffirmation agreements. 60 11 U.S.C. § 524(m)(1).

Among these demands includes language that the agreement must “not impose an undue difficulty on the debtor or perhaps a reliant associated with debtor. ” 61 Id. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) clarified the “undue difficulty” standard within the reaffirmation agreement context by prov 62 Id. If the presumption arises, it may be rebutted only when the debtor has the capacity to 63 Id. Properly, the supply is targeted on the ability that is debtor’s repay a financial obligation based on the debtor’s disposable earnings, which finally steps the result that the reaffirmation agreement will have from the future livelihood associated with the debtor.

Whilst the Bankruptcy Code itself sheds some light on exactly exactly what the undue hardship standard means, it really is worth searching beyond it to many other conditions of federal code that apply the undue difficulty standard to discern a far more coherent way of interpreting and applying the typical for purposes of § 523(a)(8) when you look at the Bankruptcy Code. By analyzing the undue hardship standard within the context of general public security advantages, work discrimination, pupil school funding eligibility, taxation re re payment extensions, social security advantages, and finding in civil litigation, typical threads occur that suggest that an assessment of good faith or conduct as a whole in an undue hardship analysis is misguided. In reality, other law that is federal strong help for the summary that Congress intended undue hardship to pay attention to the effect or impact a so-called hardship is wearing an individual as opposed to assessing the cause of the difficulty, whether an individual has made a great faith effort in order to avoid their difficulty, and perhaps the difficulty will continue.

B. Public Safety Officer Death Benefits

Regarding 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 illustration of it is based in the Public Safety Officers’ pros Act, which established a course to prov 65 34 U.S.C. § 10281(m). The supply, 34 U.S.C. § 10281(m), which provides the expression undue difficulty, concerns collection actions of benefits which are 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 quantity disbursed pursuant up to a statute enacted retroactively or elsewhere disbursed in mistake under subsection (a) or (c) with this area, where such collection is not practical, or would cause undue hardship up to a debtor whom acted in good faith. ” 66 Id. An undue hardship serves as a defense against collection actions for benefits disbursed in error or benefits disbursed under a statute enacted retroactively in other words.

Undue difficulty in this context is not interpreted in the event legislation, laws, 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). The latter half of § 10281(m) using the clause “acted in good faith” would be insignificant, if not wholly superfluous, since the undue hardship analysis would already include an inquiry into the good faith of the debtor if the undue hardship standard were to include an inquiry into good faith. The Supreme Court has explained, it’s “reluctant to take care of terms that are statutory surplusage” in every 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 think twice to take care of terms that are statutory surplusage in virtually any environment). This illustration of statutory construction which makes an express difference between undue difficulty and good faith provides strong help for the summary that the https://speedyloan.net/installment-loans-id 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 application of the undue difficulty standard being a defense for an employer whom cannot make rooms for a worker additionally supports the final outcome that the undue difficulty analysis should concentrate on an indiv 70 See Gregory S. Crespi, effectiveness Rejected: Evaluating Undue Hardship Claims underneath the People in the us with Disabilities Act, 26 Tulsa L. R. 1, 2–3 (1990). Particularly, the statute provides that discriminating:

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


Your email address will not be published. Required fields are marked *

Post comment