Congress Puts Credit Card Companies Ahead of
laycockd at umich.edu
Thu Sep 7 15:28:47 PDT 2006
I am not aware of any cases of the kind Jim asks about. There are
a handful of cases where the parent joins a religious order or
commune, takes a vow of poverty, and says he is unable to pay the
child support. Hunt v Hunt in Vermont is one I remember.
The Religious Liberty and Charitable Donations Protection Act,
codified in sections 544, 548 and somewhere in chapter 13 (1325?) of
the Bankruptcy Code, never affected child support or spousal support,
because those are not dischargeable debts. It protects churches from
suits by bankruptcy trustees to recover past contributions, and it
allowed debtors in chapter 13 plans to make contributions part of
The 2005 "reform" Act was drafted by lobbyists and Congressional
staffers who refused to consult with experts in the field. It tries
to force many more debtors into chapter 13, and if this judge is
right, it carves half the population out of the chapter 13 provisions
of the Donations Act. I'm sure that will be a surprise to most of the
legislators who voted for it. This was not on anybody's radar screen
so far as I know.
Quoting James Maule <maule at law.villanova.edu>:
> Not knowing very much about the details of bankruptcy law and the
> other areas of the law mentioned in my questions, and confessing to
> not knowing the specifics on the tax issue raised below, I ask:
> Have there been any cases in which a parent argued (successfully or
> not) that tithing "trumped" child support payments?
> Have there been any cases in which an exspouse, or soon to be
> exspouse, argued (successfully or not) that tithing "trumped"
> or temporary spousal support payments?
> Have there been any cases in which an employee argued (successfully
> or not) that tithing "trumped" garnishment of wages for tax or
> debt collection purposes?
> In other words, is this the first time the "tithing trumps"
> has been presented to a court, or are there other decisions against
> which this statutory change can be analyzed and perhaps contrasted
> Jim Maule
>>>> rheckmann at altrionet.com 9/7/2006 3:33:39 PM >>>
> COURT: CREDIT CARD COMPANIES PUT AHEAD OF CHURCH TITHING BY
> CONTROVERSIAL 2005 BANKRUPTCY REFORM LAW
> WASHINGTON, D.C.//September 7, 2006////Thou shalt have no gods
> me ... except for MasterCard, Visa and American Express.
> That's the way the United States Bankruptcy Court for the Northern
> District of New York is reluctantly interpreting the controversial
> U.S. bankruptcy reform law that went into effect last October. The
> court says those going through bankruptcy may not tithe to their
> church or make other charitable donations * until after they have
> paid off credit card companies and other creditors. Before the new
> law went into effect, bankruptcy court judges were required to
> debtors to tithe a portion of their income on a regular basis.
> The 2005 law could have a major impact on the large number of
> Christians and members of other faiths that are called upon to
> a portion of their income on a regular basis. More than two million
> Americans filed for bankruptcy protection in 2005, and hundreds of
> thousands will do so during 2006.
> Henry Sommer, president of the National Association of Consumer
> Bankruptcy Attorneys (NACBA), said: "For religious Americans who
> themselves deeply in debt due to job loss, catastrophic medical
> expenses or other circumstances, the 2005 reform legislation didn't
> just reword the federal bankruptcy code, it also effectively
> Exodus and Deuteronomy. Many who practice their faith and believe
> that they are bound by creed to tithe a portion of their income
> find that Congress effectively decided that what credit cards want
> more important than the deeply personal religious practices of Americans."
> Sommer added: "Our nation's founding fathers who envisioned a
> separation of church and state never imagined that this division
> would be used to engorge the profits of moneylenders at the expense
> of churches."
> In the case, the debtors, Frank and Patricia Diagostino, filed
> chapter 13 bankruptcy on March 1, 2006. In the paperwork required
> under the means test, the debtors listed a monthly expense of $100
> for "continued charitable contributions." This expense would reduce
> the disposable income available to pay unsecured creditors from
> 351.25 to $74,351.25 (at the rate of $100 per month for five
> The trustee in the Diagostinos' case objected to the expense. The
> 2005 bankruptcy reform law enumerates several "reasonably
> expenses that are allowed, such as health insurance and disability
> insurance, but does not mention charitable contributions as such.
> According to the IRS guidelines which dictate permissible expenses
> bankruptcy, charitable contributions may be included under the
> category of "other expenses" only in very limited circumstances,
> as being a minister with an employment contract requiring tithing.
> In his August 28, 2006 opinion (In re: Diagostino and Diagostino,
> Case No. 06-10384), U.S. Bankruptcy Judge Robert E. Littlefield,
> ruled: "This change [under the 2005 law] effectively closes the
> for debtors who are above the median income from deducting
> contributions as an expense unless they can establish the
> contributions fall under the IRS guidelines. The court does not
> with this awkward, bifurcated Congressional framework which makes
> charitable giving easier for some debtors and not others. Whether
> tithing is or is not reasonable for a debtor in bankruptcy is for
> Washington to decide. However, consistency and logic would demand
> same treatment of all debtors * Until Congress amends [the 2005
> the court's hands are tied and the tithing principles that this
> once applied pre BAPCPA (the Bankruptcy Abuse Prevention and
> Protection Act of 2005) have been effectively mooted."
> ABOUT NACBA
> The National Association of Consumer Bankruptcy Attorneys
> (http://www.nacba.org) is the only national organization
> serving the needs of consumer bankruptcy attorneys and protecting
> rights of consumer debtors in bankruptcy. Formed in 1992, NACBA now
> has more than 3300 members located in all 50 states and Puerto
> CONTACT: Patrick Mitchell, (703) 276-3266 or
pmitchell at hastingsgroup.com.
> Ross S. Heckmann
> Attorney at Law
> Member, NACBA
> 1214 Valencia Way
> Arcadia, CA 91006-2406
> Fax: 626-256-4774
> E-mail: RossS.Heckmann at gmail.com
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