First This Way, Then That Way – Conflicting Interpretations of BAPCPA
by: Hon. Eileen W. Hollowell
U.S. Bankruptcy Court (D. Ariz.); Tucson
Kathleen A. Leavitt
Chapter 13 Trustee; Las Vegas
Claire Ann Resop
Brennan, Steil & Basting, SC; Madison, Wis.
For the last two years, bankruptcy courts have had to interpret the amendments to the Bankruptcy Code made by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The result has been the publication of numerous, and often conflicting, decisions about everything from the effect of a failure to obtain a prepetition credit counseling certificate to the applicable time period between discharges. In issuing their decisions, the courts have tried to follow the Supreme Court’s directive that, in interpreting the Bankruptcy Code, courts must look first to the “plain meaning” of the statute. Academics have labeled this “plain meaning” approach “textualism.” But, as noted prior to BAPCPA’s enactment, “[d]espite its simple, misleading label, a plain meaning approach often can be difficult to apply, and it can be anything but plain.”
Read the full article. (Materials from the 2007 Southwest Bankruptcy Conference)
2007 Annual Spring Meeting Minutes
Hon. David Houston and R. Scott Williams presided over the Legislative Committee Meeting, which served as a follow-up to ABI’s plenary session on Congressional activities. At the beginning of the meeting it was announced that Mr. Williams will be rotating off his co-chairmanship of the committee and that Hon. George Paine will be taking over as co-chair. Judge Houston and Mr. Williams led a roundtable discussion regarding pending legislative proposals and prospects for action in the current session of Congress. Of particular interest were discussions of the recent proposal put forward by a consortium of consumer-oriented professionals regarding modifications to the Bankruptcy Code and legislative changes concerning sub-prime lending. ABI Director John Rao, of the National Consumer Law Center, presented the proposals. In addition to potential changes to the Bankruptcy Code, discussion centered on Congressional oversight and actions related to insolvency issues. In particular, a significant discussion took place regarding the home-finance industry and recent unrest and disturbances in that sector of the economy. Various committee members discussed proposals and their reactions to the plenary session, including comments regarding credit counseling, the required financial management course and the constitutionality of the debt-relief agency provision of BAPCPA. The meeting concluded without any formal actions or activities being considered, proposed or acted upon by the Committee.