You always hear republicans whine about judicial activism but

[Mandate My Ass]

what about judicial independence? The centerpiece of this new bankruptcy bill is the means test. What this accomplishes is to tie the judge's hands so that he must treat all debtors the same, IOW guilty. Judges tend to look favorably on those debtors whose bankruptcy was caused by extenuating circumstances such as high medical bills, extended period of unemployment and/or divorce. Under these circumstances, judges will look favorably on liquidation of debt rather than reorganization. Not anymore.

Lumping all debtors automatically in the "deadbeat" category unless they can prove otherwise is equivalent to saying all criminal defendants are guilty until proven innocent. And that is exactly what this bill does. Say good-bye to the presumption of innocence.

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 - Title I: Needs-Based Bankruptcy - (Sec. 101) Amends Federal bankruptcy law to revamp guidelines governing dismissal or conversion of a Chapter 7 liquidation (complete relief in bankruptcy), to one under either Chapter 11 (Reorganization), or Chapter 13 (Adjustment of Debts of an Individual with Regular Income).

Permits the bankruptcy court to convert a Chapter 7 case to either Chapter 11 or 13 with a debtor's consent. (Current law requires the debtor's request for such a conversion.)

(Sec. 102) Permits the court upon its own motion, or upon the motion of the bankruptcy trustee, bankruptcy administrator, or any party in interest, to move for a dismissal. (Current law prohibits a party in interest from entering such motions.)

Lowers the "substantial abuse" standard for dismissal or conversion to one of simple abuse.

Replaces the presumption in favor of granting the relief sought by the debtor with a presumption that abuse exists if the debtor's current monthly income exceeds an amount determined according to specified formulae.

Includes within the calculation of debtor's monthly expenses: (1) reasonably necessary expenses incurred to maintain the safety of the debtor and the debtor's family from family violence as identified under the Family Violence Prevention and Services Act; (2) continuation of actual expenses paid by the debtor for the care and support of an elderly, chronically ill, or disabled household or non-dependent immediate family member; and (3) an additional allowance for housing and utilities based upon documented home energy expenses.

Provides that the presumption of abuse may only be rebutted with detailed documentation of special circumstances requiring additional expenses or adjustment of current monthly total income for which there is no reasonable alternative.

Requires the debtor's counsel to reimburse the bankruptcy trustee for legal fees in prosecuting a dismissal or conversion motion if the court finds that counsel's filing under Chapter 7 was in violation of certain bankruptcy rules.

http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN00256:@@...

Judges can't make law so why do we allow Congress to interfere with the judge's duty and ability to judge?

Q: What Is Judicial Independence?

A: "Judicial independence is the freedom we give judges to act as principled decision-makers. The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures."

http://www.brennancenter.org/resources/resources_jiqand...

The three qualities of judicial independence are:

1.) impartial-neutral, not corrupt, under no outside influence
2.) independent-free of political interference
3.) autonomous-insulated from pressure of government, public opinion
and special interests.

The same repukes who scream about judicial activism have no problem tying a judge's hands if w/he doesn't go along with their program. Mandatory minimums was the first shot over the judicial bow, now we have this obscenity of a bill which renders the judge a collection agent for credit card companies.

[applegrove]

1. Very, very true!!