Consumer Bankruptcy

Alexandria, Va. — An article in the Summer 2022 edition of the American Bankruptcy Institute (ABI) Law Review (Vol. 30, No. 2) calls for statutory reform regarding retirement contributions in chapter 13 bankruptcy plans. After Congress amended Section 541 of the Bankruptcy Code with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), courts have disagreed regarding retirement contributions and the repayment of creditors under a chapter 13 plan. “In amending section 541, Congress added the last paragraph, known as the ‘hanging paragraph,’ which created confusion regarding whether contributions to a retirement plan are excepted from the debtor's estate but included in the disposable income calculation,” Julie Aberasturi writes in her “Student Note” in the Law Review. Aberasturi argues that: (1) Congress should amend the Bankruptcy Code to exclude post-petition contributions to a 401(k) plan from disposable income only in the amount contributed six months prior to bankruptcy, essentially adopting a modified version of the Davis approach, which states that contributions in the same amount as before filing are excluded from disposable income; (2) even if Congress rejects this proposal, it should still amend BAPCPA to offer clearer guidance to courts; and (3) if Congress fails to take action, courts should adopt the Davis approach going forward, because it best accomplishes the goals of BAPCPA.

Other articles included in the Summer 2022 ABI Law Review include:

·      “Last Rites and Licit Resurrections: The Problematic Pillars of Section 546(a)'s Oft-Presumed Preemption of Non-Bankruptcy Statutes of Repose” by Amir Shachmurove of Reed Smith LLP (Wilmington, Del.), a former law clerk to federal judges in California, Florida, Louisiana and New York.

·      “Bankruptcy's Equity Canon” by Jared I. Mayer, a law clerk to the Supreme Court of New Jersey.

·      “Shattered Expectations: Avoidance in Bankruptcy of Property Divisions in Divorce” by Prof. James L. Musselman of South Texas College of Law (Houston).

ABI’s Law Review, published in conjunction with St. John’s University School of Law in Jamaica, N.Y., is among the most cited and respected scholarly publications in the bankruptcy community. Now in its 28th year, it has the largest circulation of any bankruptcy law review. Past issues of the Law Review have focused on a variety of timely insolvency issues, including chapter 11 reform, distressed sectors, single-asset cases, consumer bankruptcy, revised Article 9 of the Uniform Commercial Code and other topics.

Members of the press looking to obtain any of the articles from the Summer 2022 issue should contact John Hartgen at 703-894-5935 or jhartgen@abi.org.

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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes nearly 10,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abi.org/calendar-of-events.