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Full-Text Articles in Retirement Security Law
Erisa Retirement Plans In Individual Bankruptcy, John Minton Newell
Erisa Retirement Plans In Individual Bankruptcy, John Minton Newell
University of Michigan Journal of Law Reform
When an employee covered by an ERISA retirement plan files a petition in bankruptcy, the court is presented with a number of complex issues regarding the relationship among ERISA, the Bankruptcy Code (Code), and the state law of creditors' rights. Three issues have emerged in these cases, and the courts have divided on the proper resolution of each of these issues. First, is the debtor's interest in an ERISA retirement plan "property of the estate," and thus available for distribution to creditors? Second, if the debtor's interest is property of the estate, and the debtor uses the state exemption scheme, …
Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review
Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review
Michigan Law Review
This Note argues that the two federal statutes are exempting statutes under section 522(b)(2)(A), and thus BRISA funds should be exempt in a bankruptcy action when the debtor uses the state exemption scheme. Part I argues that standard principles of statutory interpretation, as applied to the language of the bankruptcy statute, refute the possibility that Congress intended the list of statutes in the legislative history to be exclusive. Having established that statutes other than those listed may be included under section 522(b )(2)(A), Part II first refutes the argument that the absence of BRISA from the list of exempting statutes …