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Judicial Discretion To Find Abuse Under Section 707(B)(3), Eugene R. Wedoff
Judicial Discretion To Find Abuse Under Section 707(B)(3), Eugene R. Wedoff
Missouri Law Review
This article suggests the contrary - that if a section 707(b) motion properly raises the question, a bankruptcy judge has a duty to consider the actual financial situation of a debtor who is not subject to a means test presumption; that the judge should find abuse where the debtor can repay a sufficient amount of unsecured debt; and that the means test serves to guide, rather than foreclose, such determinations of abuse. Part I discusses the language of BAPCPA that requires this result, focusing on the nature of the means test as a presumption. Part II examines (and finds wanting) …
Abuse Prevention 2005, James J. White
Abuse Prevention 2005, James J. White
Missouri Law Review
The 2005 amendments to the Bankruptcy Code (BAPCPA or Act) that became effective in October of 2005 had an unusually long and difficult gestation. The legislation was conceived and even passed by Congress once during the Clinton administration. After President Clinton's pocket veto, the Act did not again reach a President's desk until President George W. Bush signed the Act into law on April 20, 2005, during the first year of his second term. The Act was conceived by institutional unsecured consumer creditors as the antidote to the rapidly rising number of consumer bankruptcies that followed the enactment of the …