CGV Ventanas

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 recognized by scholars, the reaffirmation agreement supply is the only real other place undue hardship appears into the Bankruptcy Code bes 59 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). Under 11 U.S.C. § 524, the supply regulating reaffirmation agreements, an understanding which makes the debtor lawfully bound to settle a financial obligation that will otherwise be discharged is enforceable only when many different requirements supposed to safeguard the debtor’s fresh begin are typical pleased. 60 11 U.S.C. § 524(m)(1).

Among these needs includes language that the agreement must “not impose a hardship that is undue the debtor or a reliant associated with debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the “undue hardship” standard into the reaffirmation agreement 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. Correctly, the provision is targeted on the ability that is debtor’s repay a financial obligation decided by the debtor’s disposable income, which fundamentally measures the consequence that the reaffirmation contract might have from the future livelihood of this debtor.

Whilst the Bankruptcy Code itself sheds some light on just exactly what the undue hardship standard means, it’s well well worth looking beyond it with other conditions of federal code that apply the hardship that is undue to discern a far more coherent way of interpreting and applying the typical for purposes of § 523(a)(8) into the Bankruptcy Code. By analyzing the undue hardship standard into the context of public safety advantages, work discrimination, student aid that is financial, tax re payment extensions, social safety advantages, and development in civil litigation, common threads occur that declare that an assessment of great 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 conclusion that Congress intended undue hardship to spotlight the impact or impact an alleged difficulty is having on an individual rather than assessing the explanation for the hardship, whether someone has made an excellent faith work to avoid their difficulty, and whether or not the difficulty will persist.

B. Public Protection 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 exemplory instance of this will be based in the Public Safety Officers’ pros Act, which established a course 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 being 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 to a statute enacted retroactively or perhaps disbursed in error under subsection (a) or (c) https://speedyloan.net/installment-loans-ia with this area, where such collection will be not practical, or would cause undue difficulty up to a debtor whom acted in good faith. ” 66 Id. Quite simply, an undue hardship 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 is not interpreted just in case 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). If the undue hardship standard had been to incorporate an inquiry into good faith, the latter half of § 10281(m) making use of the clause “acted in good faith” will be insignificant, if you don’t wholly superfluous, considering that the undue difficulty analysis would currently consist of an inquiry in to the good faith regarding the debtor. The Supreme Court has explained, its “reluctant to deal with statutory terms as surplusage” in just about 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 treat statutory terms as surplusage in every environment). This exemplory case of statutory construction that produces an express difference between undue difficulty and good faith provides strong help when it comes to summary that a meaning for undue difficulty into the bankruptcy context must not add facets that evaluate good faith efforts or pre-bankruptcy conduct that is debtor’s.

C. Employment Discrimination

The use of the hardship that is undue as a protection for an employer who cannot make rooms for a member of staff additionally supports in conclusion that the undue difficulty analysis should consider 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 an indiv that is qualified 71 42 U.S. C § 12112.