A. Reaffirmation Agreements when you look at the Bankruptcy Code

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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. As acquiesced by scholars, the reaffirmation contract supply is truly the only other place undue difficulty seems within the Bankruptcy Code bes 59 See quick 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). Under 11 U.S.C. § 524, the supply regulating reaffirmation agreements, an understanding which makes the debtor legally obliged to settle a financial obligation that could otherwise be released is enforceable as long as many different requirements supposed to safeguard the debtor’s fresh start are typical pleased. 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 even a reliant of this debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the hardship that is“undue standard into the reaffirmation agreement context by prov 62 Id. In the event that presumption arises, it may be rebutted as long as the debtor is able to 63 Id. Appropriately, the provision is targeted on the debtor’s ability to repay a financial obligation based on the debtor’s disposable income, which finally steps the result that the reaffirmation contract could have regarding the future livelihood for the debtor.

Although the Bankruptcy Code itself sheds some light on just what the undue hardship standard means, it really is well well worth searching beyond it to many other conditions of federal code that apply the undue hardship 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 when you look at the context of general public security advantages, work discrimination, pupil aid that is financial, taxation re payment extensions, social protection advantages, and development in civil litigation, common threads occur that declare that an evaluation of great faith or conduct generally speaking in an undue hardship analysis is misguided. In reality, other federal legislation provides strong help for the summary that Congress meant undue difficulty to pay attention to the effect or affect an alleged hardship is wearing an individual as opposed to evaluating the explanation for the difficulty, whether a person has made a beneficial faith effort in order to avoid their difficulty, and perhaps the difficulty will persist.

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 case 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. § m that is 10281(, which provides the expression undue difficulty, concerns collection actions of advantages which can be disbursed pursuant to a statute enacted retroactively or perhaps in mistake, 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 elsewhere disbursed in mistake under subsection (a) or (c) for this section, where such collection will be not practical, or would cause undue difficulty 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 just in case legislation, laws, or gu 67 Duncan v. Walker, 533 U.S. 167, 174 (2001). Simply put, a statute really should not be interpreted in a fashion that renders a term or expression superfluous when such an interpretation may be avo 68 usa v. E-Gold, Ltd., 550 F installment loans indiana. Supp. 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 really is “reluctant to deal with terms that are statutory surplusage” in every setting. ” 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 treat 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 support for the summary that a definition for undue difficulty into the bankruptcy context should 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 as a defense for an employer whom cannot make rooms for a worker additionally supports the final outcome that the undue hardship analysis should concentrate on an indiv 70 See Gregory S. Crespi, effectiveness Rejected: Evaluating Undue Hardship Claims beneath the People in america with Disabilities Act, 26 Tulsa L. R. 1, 2–3 (1990). Particularly, the statute provides that discriminating:

Against a professional indiv 71 42 U.S. C § 12112.

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