ATELIER DEL RACCONTO

A. Reaffirmation Agreements into the Bankruptcy Code

A. Reaffirmation Agreements into the Bankruptcy Code

Within the Bankruptcy Code, making use of the undue difficulty standard when you look at the reaffirmation contract supply shows that the undue difficulty analysis should mainly concentrate on the present monetary circumstances of the debtor. 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 contract must “not impose a hardship that is undue the debtor or perhaps a reliant regarding the debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the “undue difficulty” standard into the reaffirmation contract installment loans in iowa context by prov 62 Id. In the event that presumption arises, it could be rebutted only when the debtor has the capacity to 63 Id. Appropriately, the provision targets the debtor’s ability to repay a debt decided by the debtor’s disposable earnings, which fundamentally steps the result that the reaffirmation contract could have in the future livelihood of this debtor.

Although the Bankruptcy Code itself sheds some light on what the undue hardship standard means, it’s well worth looking beyond it to many other conditions of federal code that apply the undue difficulty standard to discern a far more coherent approach to interpreting and applying the typical for purposes of § 523(a)(8) within the Bankruptcy Code. By analyzing the undue hardship standard within the context of general public safety benefits, work discrimination, student aid that is financial, income tax re payment extensions, social protection benefits, and breakthrough in civil litigation, typical threads exist that suggest that an assessment of good faith or conduct as a whole in an undue difficulty analysis is misguided. In reality, other law that is federal strong help when it comes to summary that Congress meant undue difficulty to pay attention to the effect or impact a so-called difficulty is wearing an individual as opposed to assessing the cause of the hardship, whether a person has made a beneficial faith work to prevent their hardship, and whether or not the difficulty will continue.

B. Public Protection Officer Death Benefits

In terms of 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 instance of this might be found in the Public Safety Officers’ pros Act, which established an application to prov 65 34 U.S.C. § 10281(m). The supply, 34 U.S.C. § m that is 10281(, which offers the phrase undue difficulty, concerns collection actions of advantages being disbursed pursuant to a statute enacted retroactively or in error, and reads in whole the following: “The Bureau may suspend or end collection action on a sum disbursed pursuant to a statute enacted retroactively or else disbursed in error under subsection (a) or (c) for this part, where such collection could be not practical, or would cause undue difficulty up to a debtor whom acted in good faith. ” 66 Id. Put differently, an undue difficulty functions as a protection against collection actions for advantages disbursed in mistake or benefits disbursed under a statute enacted retroactively.

Undue difficulty in this context will not be interpreted just in case law, 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). If the undue hardship standard had been to incorporate an inquiry into good faith, the second half of § 10281(m) making use of the clause “acted in good faith” will be insignificant, if you don’t wholly superfluous, because the undue difficulty analysis would currently consist of an inquiry to the good faith regarding the debtor. The Supreme Court has made clear, it really is “reluctant to take care of statutory terms as 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 hesitate to deal with terms that are statutory surplusage in every setting). This exemplory instance of statutory construction that produces an express difference between undue difficulty and good faith provides strong help for the conclusion that a meaning for undue difficulty when you look at the bankruptcy context must not consist of 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 the employer who cannot make accommodations for a member of staff additionally supports the conclusion that the undue difficulty analysis should give attention to 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 a professional indiv 71 42 U.S. C § 12112.