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Summer ABI Law Review Note Calls for Statutory Reform Regarding Retirement Contributions in Chapter 13 Bankruptcy Plans

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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.

Senate Advances Stopgap Funding Bill After Removing Joe Manchin’s Permitting Overhaul

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Sen. Joe Manchin (D., W.Va.) on Tuesday threw in the towel on including his contentious proposal to speed up permitting of energy projects in a must-pass funding bill, clearing the way for the Senate to advance the legislation needed to keep the government open, the Wall Street Journal reported. With the permitting language out, the Senate voted 72 to 23 to advance the stopgap bill, which would extend current government funding levels until Dec. 16 and prevent a partial shutdown this weekend, when the fiscal year ends. The bill now moves to final passage in the Senate and will also need approval in the House, which returns Wednesday, before heading to President Biden’s desk. The resolution also contains more than $12 billion in aid to Ukraine to help fortify the country’s military with new weapons and support the government in Kyiv as it fights off Russia’s invasion. Lawmakers from both parties have criticized the Manchin proposal, with Republicans saying it didn’t go far enough to remove permitting hurdles so that energy projects can be built quickly. Democrats worried that speeding up oil and gas projects could risk damaging ecosystems and compromise the health of nearby residents.

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Shutdown Threat Grows as Lawmakers Struggle to Reach Final Deal

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The heat is dialing up on Congress to quickly strike an agreement on government funding as lawmakers stare down a critical deadline to avert a shutdown at week’s end, The Hill reported. Lawmakers on both sides have been pressing for a short-term funding bill, often referred to as a continuing resolution (CR), that would keep the government funded at current levels until after the midterm elections and buy time for a larger deal on government spending for fiscal 2023. But Congress has less than a week to pass the stopgap funding measure or risk its first shutdown in years, and lawmakers still have several hurdles to cross before they can clear the finish line. The government will shut down on Oct. 1 without a new spending measure. Most expect that Congress will find a way to pass a short-term measure before midnight Friday, as it is not in either party’s interest to be blamed for a shutdown weeks before the midterm elections. But the timeline and disagreements won’t make it easy. One of the biggest holdups to passage is an ongoing push by Sen. Joe Manchin (D-W.Va.), a key centrist, and Democratic leadership to use the must-pass bill as a vehicle for changes to the country’s permitting process for energy projects. Manchin previously struck a deal between top Democrats and President Biden to pass the proposal, which is aimed at speeding up the country’s energy infrastructure projects, in exchange for his support for a sweeping tax, climate and health care plan that narrowly passed Congress in a party-line vote earlier this year.

House Judiciary Subcommittee to Hold Hearing Next Week on Consumer Bankruptcy Issues

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The House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law will hold a hearing at 1 p.m. ET next Thursday, Sept. 29, titled "Oversight of the Bankruptcy Code, Part 2: Ensuring a Fresh Start for Consumers." The witnesses and topic list to be covered at the hearing is forthcoming and will be included in the ABI Headlines next week once they are formally announced. The first part of the subcommittee’s hearing series took place in July 2021 and focused on confronting abuses of the chapter 11 system.

House Stablecoin Bill Would Put Two-Year Ban on Terra-Like Coins

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Legislation to regulate stablecoins that’s being drafted in the House would place a two-year ban on coins similar to TerraUSD, the algorithmic stablecoin that collapsed earlier this year, Bloomberg News reported. Under the latest version of the bill, it would be illegal to issue or create new “endogenously collateralized stablecoins,” according to a copy obtained by Bloomberg. The definition would kick in for stablecoins marketed as being able to be converted, redeemed or repurchased for a fixed amount of monetary value, and that rely solely on the value of another digital asset from the same creator to maintain their fixed price. TerraUSD, also known as UST, was designed to maintain a 1-to-1 peg to the US dollar through an algorithm and trading in a sister token called Luna. That experiment failed spectacularly when UST crashed in May, resulting in billions of dollar of losses and prompting policymakers to take renewed interest in stablecoins. The draft legislation would mandate a study on Terra-like tokens from Treasury in consultation with the Federal Reserve, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corp., and the Securities and Exchange Commission. House Financial Services Committee Chairwoman Maxine Waters and Ranking Member Patrick McHenry have been working to reach an agreement on the stablecoin legislation, though people familiar with the discussions said it’s unclear if McHenry, a Republican, has approved the latest draft. Terms of the proposal could still change before a final version is released.

Lawmakers Spar over Consumer Protections for BNPL, Other New Products

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Democrats at a Senate Banking Committee hearing yesterday called for stronger consumer protections around novel financial products, arguing too little is done to police fintechs. But a top Republican and industry supporters countered that a heavy regulatory hand would stifle innovation and hurt consumers who could benefit from new alternatives, American Banker reported. The committee's Democrats focused largely on three types of products that have grown popular in recent years: buy now/pay later, where consumers can pay for retail purchases interest-free in a handful of regular installments; earned wage access products, which proponents tout as a safer alternative to payday loans; and training repayment agreements, or employer contracts that can require new hires to pay their company back for certain education programs. For two of those three products — BNPL and earned wage access — Senate Banking Chair Sherrod Brown (D-Ohio) suggested that "stronger consumer protections" could make them significantly more palatable. Click here for a full replay of the hearing and to read the prepared witness testimony.

Biden Signs Expansive Health, Climate and Tax Law

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President Biden yesterday signed legislation meant to reduce health costs, reduce greenhouse gas emissions and raise taxes on corporations and wealthy investors, capping more than a year of on-again, off-again negotiations, the New York Times reported. The bill, which Democrats named the Inflation Reduction Act, invests $370 billion in spending and tax credits in low-emission forms of energy to fight climate change. It extends federal health-insurance subsidies, allows the government to negotiate prescription drug prices for seniors on Medicare and is expected to reduce the federal budget deficit by about $300 billion over 10 years. The legislation would increase taxes by about $300 billion, largely by imposing new levies on big corporations. The law includes a new tax on certain corporate stock repurchases and a minimum tax on large firms that use deductions and other methods to reduce their tax bills. It also bolsters funding for the Internal Revenue Service in an effort to crack down on tax evasion and collect potentially hundreds of billions of dollars that are currently owed to the government but not paid by high earners and corporations. It passed the House and Senate earlier this month entirely along party lines, as Democrats employed a legislative process to bypass a Republican filibuster.

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