Within the Bankruptcy Code, the employment of the undue hardship standard when you look at the reaffirmation contract supply shows that the undue difficulty analysis should mainly concentrate on the present economic circumstances of a 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 needs includes language that the contract must “not impose a hardship that is undue the debtor or a reliant associated with the debtor. ” 61 Id. The Bankruptcy Abuse Prevention and customer Protection Act of 2005 (BAPCPA) clarified the hardship that is“undue standard within 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. Properly, the supply is targeted on the debtor’s ability to repay a financial obligation decided by the debtor’s disposable earnings, which ultimately steps the consequence that the reaffirmation agreement might have regarding the future livelihood associated with debtor.
Whilst the Bankruptcy Code itself sheds some light on just exactly what the undue hardship standard means, it really is well worth searching beyond it to other provisions of federal code that apply the hardship that is undue to discern a far more coherent way of interpreting and applying the conventional for purposes of § 523(a)(8) when you look at the Bankruptcy Code. By analyzing the undue hardship standard into the context of general public security benefits, work discrimination, pupil aid that is financial, income tax re payment extensions, social protection advantages, and breakthrough in civil litigation, typical threads occur that declare that an assessment of great faith or conduct as a whole in an undue hardship analysis is misguided. In reality, other law that is federal strong help when it comes to summary that Congress intended undue difficulty to pay attention to the effect or impact an so-called difficulty is wearing an individual as opposed to assessing the explanation for the hardship, whether a person has made an excellent faith work to prevent their difficulty, and perhaps the difficulty will persist.
B. Public Protection Officer Death Benefits
When it comes to 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 this can be based 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. § 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 sum disbursed pursuant up to a statute enacted retroactively or elsewhere disbursed in mistake under subsection (a) or (c) for this area, where such collection will be impractical, or would cause undue hardship 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 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 http://www.speedyloan.net/installment-loans-il. 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, its “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 wait to deal with terms that are statutory surplusage in almost any setting). This illustration of statutory construction that produces an express distinction between undue hardship and good faith provides strong support when it comes to conclusion that a meaning for undue difficulty in the bankruptcy context must not consist of factors that evaluate good faith efforts or debtor’s pre-bankruptcy conduct.
C. Employment Discrimination
The effective use of the hardship that is undue as being a protection for an employer whom cannot make rooms for a member of staff additionally supports the final outcome that an 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). Especially, the statute provides that discriminating:
Against a qualified indiv 71 42 U.S. C § 12112.
