Part II of this Comment provides background information about Chapter 13 bankruptcy. This section is important because it provides a foundation for the remainder of this Comment. Part III of this Comment explores the source of this split and how the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) has affected this issue. Within Part III, this Comment will discuss why Congress enacted BAPCPA, the largest overhaul of bankruptcy law since its origin, and why BAPCPA did not affect the good faith requirement under § 1325(a)(3) even though BAPCPA drastically altered bankruptcy law. In addition, this section also discusses how BAPCPA significantly altered Chapter 7 bankruptcy, which affects Chapter 13 bankruptcy when a debtor abuses the requirements of 11 U.S.C. § 707(b)(3)(B) and must either convert to a Chapter 13 bankruptcy filing or have his/her case dismissed. Part IV provides a detailed examination of the good faith analysis under 11 U.S.C. § 1325(a). This examination of § 1325(a) outlines the varying definitions of good faith and provides a detailed look at the totality of circumstances test by discussing the varying factors courts have adopted. Part V addresses the split among courts on this issue. This section provides an in-depth look at cases that have ruled specifically on this issue and why the courts held the way they did. Part VI will provide an analysis on why courts should adopt the stance that a debtor’s decision not to commit available Social Security benefits to unsecured creditors should be included in the good faith analysis under § 1325(a). This analysis starts by addressing the arguments made by proponents who oppose including a debtor’s decision to exclude Social Security benefits as a factor courts may consider. This Comment analyzes why these views are misguided and concludes with why the prevailing view should be to include the debtor’s decision as a factor under the good faith analysis. In advocating for this view, this Comment is not proposing a per se rule. Instead, this Comment is advocating that the inclusion of Social Security benefits only be a factor that courts may consider. To advocate for a per se rule in either direction destroys the very purpose of the good faith test. Part VII offers a brief summary and conclusion of the Comment.
Davis, Casey J.
"Not So Secure: Should Social Security Benefits Be Considered in the Good Faith Analysis Under 11 U.S.C. § 1325(A)(3)?,"
Akron Law Review: Vol. 47
, Article 12.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol47/iss1/12