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Very special circumstances - the almost irrebuttable presumption of abuse under section 707(b)(2)

Bartell, Laura B

The American bankruptcy law journal, 2017-06, Vol.91 (3), p.393 [Periódico revisado por pares]

Ft. Wayne: National Conference of Bankruptcy Judges

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  • Título:
    Very special circumstances - the almost irrebuttable presumption of abuse under section 707(b)(2)
  • Autor: Bartell, Laura B
  • Assuntos: Bankruptcy ; Bankruptcy law ; Bankruptcy laws ; Consumer credit ; Consumer protection ; Income accounting ; Laws, regulations and rules ; Methods ; Net income ; Presumptions (Law) ; Provisions ; Remedies
  • É parte de: The American bankruptcy law journal, 2017-06, Vol.91 (3), p.393
  • Descrição: [...]of informal conference negotiations, a compromise bill, S. 3186, was introduced by Senator Grassley,88 and incorporated into an unrelated bill, H.R. 2415, as to which the Senate had already agreed to go to conference, to circumvent a filibuster threat from Senator Wellstone.89 In Senator Grassley's bill, the threshold for the presumption of abuse was changed to "the lesser of - (I) 25 percent of the debtor's nonpriority unsecured claims in the case, or $6,000, whichever is greater; or (II) $10,000. [...]the report of the Senate Judiciary Committee emphasized that the standard was "to protect debtors from rigid and arbitrary application of a means-test "178 While the special circumstances doctrine was "not [to] be used as a convenient way for debtors to choose a more expensive lifestyle,"179 it was to be available to "those debtors whose special circumstances require adjustments to income or expenses that place them in dire need of chapter 7 relief. [...]courts should recognize that the purpose behind the special cir' cumstances doctrine was to allow debtors to remain in chapter 7 who had "dire need" of chapter 7 relief.232 Those courts that apply the "narrow" inter' pretation of "special circumstances" not only ignore the legislative history of the phrase, but defeat the overarching objective of the means test. D. Colo. 2007) (holding that 'special circumstances" doctrine is applicable only to expenses, not income). Because of the Supreme Court's interpretation of 'projected disposable income," use of the 'special circumstances" doctrine in chapter 13 cases is no longer necessary to reflect anticipated changed in the debtor's income.
  • Editor: Ft. Wayne: National Conference of Bankruptcy Judges
  • Idioma: Inglês
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