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 agreement supply is the sole other place undue difficulty appears 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 governing 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 needs supposed to safeguard the debtor’s fresh begin are typical pleased. 60 11 U.S.C. § 524(m)(1).
Among these demands includes language that the agreement must “not impose an undue hardship on the debtor or perhaps a reliant of this debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the “undue difficulty” standard when you look at the reaffirmation contract context by prov 62 Id. In the event that presumption arises, it may be rebutted as long as the debtor has the capacity to 63 Id. Appropriately, the supply targets the debtor’s ability to repay a financial obligation dependant on the debtor’s disposable earnings, which finally steps the end result that the reaffirmation agreement could have in the future livelihood for the debtor.
While the Bankruptcy Code itself sheds some light on just exactly 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 hardship that is undue 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, student aid that is financial, income tax re re payment extensions, social protection benefits, and breakthrough in civil litigation, typical threads exist that declare that an assessment of good faith or conduct as a whole in an undue difficulty analysis is misguided. In fact, other law that is federal strong help when it comes to summary that Congress meant undue difficulty to pay attention to the impact or affect an so-called difficulty is wearing an individual as opposed to assessing the explanation for the difficulty, whether a person has made a great faith work in order to avoid their difficulty, and whether or not the difficulty will continue.
B. Public Safety 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 this really is based in the Public Safety https://speedyloan.net/installment-loans-in Officers’ pros Act, which established an application to prov 65 34 U.S.C. § 10281(m). The supply, 34 U.S.C. § 10281(m), which contains the phrase undue hardship, concerns collection actions of advantages 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 quantity disbursed pursuant up to a statute enacted retroactively or else disbursed in mistake under subsection (a) or (c) of this part, where such collection could be not practical, or would cause undue difficulty to a debtor who 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 case legislation, laws, or gu 67 Duncan v. Walker, 533 U.S. 167, 174 (2001). Simply put, a statute shouldn’t be interpreted in a fashion that renders a word or expression superfluous whenever this kind of interpretation could be avo 68 united states of america v. E-Gold, Ltd., 550 F. 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 clarified, 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 wait to take care of statutory terms as surplusage in almost any environment). This exemplory case of statutory construction which makes an express difference between undue difficulty and good faith provides strong support when it comes to summary that a meaning for undue difficulty within the bankruptcy context must not consist of facets that evaluate good faith efforts or debtor’s pre-bankruptcy conduct.
C. Employment Discrimination
The application of the hardship that is undue as a defense for an employer whom cannot make rooms for a member of staff also supports in conclusion that the undue hardship 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). Particularly, the statute provides that discriminating:
Against an indiv that is qualified 71 42 U.S. C § 12112.