§ 3.10     Nine: Malice or Incompetence?
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 3.10, at ¶ ____, LundinOnChapter13.com (last visited __________).

You could call this the “We Don’t Trust Experts” principle. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)1 was not written or vetted by the bankruptcy practitioners and scholars usually involved in bankruptcy legislative efforts. Perhaps we will never know for sure whether the mess that was BAPCPA was produced on purpose by the lenders’ lobbyists or whether the mess resulted because the drafters were not capable of a better job. Whatever the cause, the result was a long and intricate statute packed with drafting errors, including sentences that are incomprehensible, paragraphs that “hang” in disconnection with surrounding provisions, cross-references that lead nowhere or to the wrong-where, new terms of art without definitions and many new provisions that simply can’t be reliably deconstructed using ordinary canons of statutory interpretation.


Some of the mistakes were almost too bizarre to have been intentional. Did the lobbyists who wrote BAPCPA intend to make federal exemptions available to thousands of debtors in states that have opted out of the federal exemptions?2 After highly publicized battles in the past, did someone in D.C. intentionally revoke the 15 percent charitable deduction for over-median-income Chapter 13 debtors?3 Did Congress intend to invalidate all state exemption laws with respect to the collection of domestic support obligations?4


Whether by design or default, the legacy of BAPCPA is that bankruptcy practitioners, judges and scholars will spend decades trying to make sense of this law. Reported decisions are filled with statements of frustration by judges sentenced to undertake this hugely unproductive task.5 If the drafters intended to make bankruptcy more complicated and expensive by making the bankruptcy law less coherent and more difficult of application, they succeeded.


1  Pub. L. No. 109-8, 119 Stat. 23 (2005).


2  See 11 U.S.C. § 522(b), discussed in § 48.6  Domicile Rules after BAPCPA.


3  See 11 U.S.C. § 1325(b), discussed in § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?). This “mistaken” provision of BAPCPA was quickly undone by the Religious Liberty and Charitable Donations Clarification Act of 2006, Pub. L. No. 109-439, 120 Stat. 3285 (Dec. 20, 2006), discussed in § 2.3  Brief History of Chapter 13 after BAPCPA.


4  See 11 U.S.C. § 522(c)(1), discussed in § 48.3  Exemptions and Exemption Limitations Added by BAPCPA.


5  See, e.g., Dumont v. Ford Motor Credit Co. (In re Dumont), 581 F.3d 1104, 1110 (9th Cir. Sept. 15, 2009) (O’Scannlain & Goodwin, Graber, dissenting) (“BAPCPA has been criticized for its lack of clarity. We agree that BAPCPA is hardly the very model of a well-drafted statute.”); DaimlerChrysler Fin. Servs. Ams., LLC v. Miller (In re Miller), 570 F.3d 633, 639 (5th Cir. June 5, 2009) (Smith, Garza, Clement) (“BAPCPA has been criticized by some judges and commentators as being ‘poorly drafted’ and has resulted in certain readings of the Code that would qualify as ‘awkward’ under the definition in Lamie [v. United States Trustee, 540 U.S. 526, 534, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (Jan. 26, 2004) (“The statute is awkward, and even ungrammatical; but that does not make it ambiguous . . . .”)]. Although we have no reason to pass judgment on the process by which BAPCPA became law, we note that perceived poor drafting should not be regarded as a license to invalidate plain-text readings in the name of fixing a statute that some believe is broken.”); Carroll v. Sanders (In re Sanders), 551 F.3d 397, 404 (6th Cir. Dec. 29, 2008) (Sutton, Gilman, Kethledge) (“Congress, like the courts, makes mistakes from time to time, and some provisions of BAPCPA may be among them.”); In re Grydzuk, 353 B.R. 564, 566–67 (Bankr. N.D. Ind. Oct. 20, 2006) (Klingeberger) (“Although certainly participants in its drafting know who they are, no one has come forward to claim authorship of the newly-minted provisions of the BAPCPA. This is understandable, for unlike the rapture which arises from reading the most eloquent prose and poetry ever written in the English language, no such elevated state of consciousness derives from reading the BAPCPA. Thus, while a debate rages over whether William Shakespeare or someone else wrote the plays and sonnets attributed to the Bard of Avon, there will never be a similar debate over the authorship of the BAPCPA because no one wants to be associated with that body of work. 11 U.S.C. § 1328(f)(1) presents another in a long string of incredibly poorly drafted statutory provisions under the BAPCPA.”); In re Pope, 351 B.R. 14, 16 (Bankr. D.R.I. Oct. 3, 2006) (Votolato) (“While the statute in question—[11 U.S.C. § 362(c)(3)(A)]—exhibits the same mediocre draftsmanship as the bulk of the BAPCPA of 2005, in this instance it does accomplish its intended purpose, i.e., to terminate the stay for all purposes [with respect to the debtor and debtor’s property] . . . .”).