A. Reaffirmation Agreements within the Bankruptcy Code
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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. 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 agreement 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 hardship that is“undue standard when you look at the reaffirmation contract context by prov 62 Id. In the event that presumption arises, it may be rebutted only when the debtor has the capacity to 63 Id. Correctly, the supply targets the debtor’s ability to repay a financial obligation based on the debtor’s disposable income, which fundamentally measures the result that the reaffirmation contract might have from the future livelihood regarding the debtor.
Although the Bankruptcy Code itself sheds some light on just what the undue hardship standard means, it really is worth searching beyond it to many other conditions of federal code that apply the hardship that is undue to discern an even more coherent way of interpreting and applying the conventional for purposes of § 523(a)(8) into the Bankruptcy Code. By analyzing the undue hardship standard into the context of general public security benefits, work discrimination, student educational funding eligibility, taxation re payment extensions, social protection benefits, and finding in civil litigation, common 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 for the summary that Congress meant undue difficulty to spotlight the effect or impact a so-called difficulty is having on an individual as opposed to evaluating the reason for the difficulty, whether a person has made an excellent faith effort in order to avoid their difficulty, and whether or not the difficulty will continue.
B. Public Protection Officer Death Benefits
With regards 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 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 benefits 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) of the area, where such collection will be impractical, or would cause undue hardship up 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 will not be interpreted in the event legislation, regulations, or gu 67 Duncan v. Walker, 533 U.S. 167, 174 (2001). Put differently, a statute really should not be interpreted in a fashion that renders a term or expression superfluous whenever such an interpretation may 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” easy installment loans in hawaii 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 take care of terms that are statutory surplusage” in virtually 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 think twice to deal with terms that are statutory surplusage in almost any environment). This illustration 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 hardship 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 undue hardship standard as being a protection for the employer whom cannot make rooms for a member of staff additionally supports in conclusion that an undue difficulty analysis should give attention to an indiv 70 See Gregory S. Crespi, Efficiency Rejected: Evaluating Undue Hardship Claims beneath the People in the us 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.
