Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or perform any legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.
On October 20, President Bush signed into law the National Guard and Reservists Debt Relief Act of 2008. Here is the text of the Act. It is effective 60 days after its enactment, thus on December 19, 2008, and is in effect for cases filed during the 3 years following that date, and then expires.
The Act primarily changes one subsection of the Bankruptcy Code, exempting a very specific population of debtors from the Section 707(b)(2)(A) means test. It also requires the General Accountability Office (GAO) to present to Congress within two years "a study of the use and the effects of the provisions of law amended.," including "the effects that the use by such members of this Act has upon: (1) the bankruptcy system; (2) creditors; and (3) the debt-incurrence practices of such members."
Debtors' attorneys' questionnaires, written and oral, should immediately be changed to select out those members of the National Guard and the Armed Forces Reserves who, after September 11, 2001:
1) at the time of filing their bankruptcy case either are in the midst of a period of at least 90 days of active duty, or had been in such a period of active duty during the last 540 days (about 18 months) before filing the case; orTwo cases about the constitutionality of BAPCPA's prohibition against attorneys advising clients to incur additional debt: both the 2006 Oregon U.S. District Court opinion Olsen v. Gonzales (now Mukasey), and the September 2008 Connecticut U.S. District Court opinion Connecticut Bar Assn. v U.S., are on appeal, to the Ninth and the Second Circuit Court of Appeal, respectively. Please see these prior Bulletins which referred to the Olsen opinion
2) at the time of filing their bankruptcy case are performing "a homeland defense activity" lasting at least 90 days, or had been in such a period during the last 540 days before filing the case.
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(in a Bulletin also about the only Circuit Court opinion on the issue, the Eighth Circuit's Milavetz, Gallop & Milavetz v. United States); and to the State Bar of Connecticut one. Please also see future Bulletins for these two Court of Appeals opinions when they are decided.
by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com
Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.
© 2008 Bankruptcy Litigation Support for Attorneys
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