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 contract supply is the actual only real other place undue hardship seems into 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). 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 demands includes language that the agreement must “not impose a hardship that is undue the debtor or perhaps a reliant associated with 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 could be rebutted as long as the debtor has the capacity to 63 Id. Properly, the provision centers on the debtor’s ability to repay a financial obligation decided by the debtor’s disposable earnings, which eventually steps the end result that the reaffirmation contract might have from the future livelihood of this debtor.
Although the Bankruptcy Code itself sheds some light on exactly just what the undue hardship standard means, it really is well well worth looking beyond it to other conditions of federal code that apply the hardship that is undue to discern a more coherent way of interpreting and applying the conventional for purposes of § 523(a)(8) within the Bankruptcy Code. By analyzing the undue hardship standard within the context of public security advantages, work discrimination, pupil aid that is financial, income tax payment extensions, social protection advantages, and finding in civil litigation, typical threads occur that suggest that an assessment of good faith or conduct generally speaking in an undue difficulty analysis is misguided. In reality, other federal legislation provides strong support for the summary that Congress meant undue difficulty to spotlight the effect or affect a so-called hardship is having on an individual as opposed to assessing the explanation for the hardship, whether someone has made a beneficial faith work in order to prevent their difficulty, and if 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 that is based in the Public Safety Officers’ Benefits Act, which established an application to prov 65 34 https://speedyloan.net/installment-loans-ia U.S.C. § 10281(m). The supply, 34 U.S.C. § m that is 10281(, which offers the phrase undue difficulty, concerns collection actions of advantages which are disbursed pursuant to a statute enacted retroactively or perhaps in error, 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 part, where such collection will be impractical, or would cause undue difficulty to a debtor whom acted in good faith. ” 66 Id. Quite simply, an undue difficulty functions as a protection against collection actions for benefits disbursed in error or advantages disbursed under a statute enacted retroactively.
Undue difficulty in this context will not be interpreted in the event 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, or even wholly superfluous, since the undue difficulty analysis would already include an inquiry in to the good faith associated with debtor. The Supreme Court has made clear, it really is “reluctant to deal with statutory terms as 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 take care of statutory terms as 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 conclusion that the definition for undue difficulty into the bankruptcy context must not include 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 being a protection for the employer whom cannot make rooms for a worker additionally supports the final outcome that the undue difficulty analysis should give attention to an indiv 70 See Gregory S. Crespi, Efficiency Rejected: Evaluating Undue Hardship Claims beneath the People in america with Disabilities Act, 26 Tulsa L. R. 1, 2–3 (1990). Especially, the statute provides that discriminating:
Against an indiv that is qualified 71 42 U.S. C § 12112.