Copyright (c) 2006 North Dakota Law Review
North Dakota Law Review
ARTICLE: THE YEAR IN REVIEW: CASE LAW DEVELOPMENTS UNDER THE BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005
82 N.D. L. Rev. 297
George H. Singer*
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "BAPCPA") was signed into law by President George W. Bush on April 20, 2005. 1 The new legislation, which brought to a conclusion a reform initiative spanning over the course of a decade, makes the most comprehensive changes to the Bankruptcy Code (the "Code") since its enactment in 1978. 2 Indeed, the term "overhaul" would not be a misnomer. The amendments to the Code were not adopted in response to an economic calamity but rather resulted from a desire to recalibrate the balance of the often-competing interests of debtors and creditors and to correct perceived deficiencies that existed under former law. The legislation is the product of the political process and is replete with reforms that reflect (and advance) the interests of various constituencies. The BAPCPA is designed to strengthen the rights of creditors, clarify areas of uncertainty in pre-amendment law, limit judicial discretion, and - perhaps most significantly - change the dynamics of the debtor-creditor relationship.
The majority of the BAPCPA's provisions became effective on October 17, 2005. 3 The new law poses greater interpretive challenges than existed under the Bankruptcy Reform Act of 1978, due to the imprecise language frequently utilized by Congress and other drafting issues that do not in many cases clearly articulate Congressional intent. The case law construing the changes to the law over the last twelve months or so has underscored the interpretive difficulties encountered by courts and attorneys when ...
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