Law Review: Bartell- Making Assumptions About the Individual Debtor’s Right to Assume Under § 365(p)(2)

Summary: This article discusses the "fix" that Congress attempted to make in BAPCPA in 11 U.S.C. § 365(p)(2), by allowing Debtors, rather than just the Trustee,  to assume leases for personal property, usually vehicles, in Chapter 7 cases. The author  finds that two questions arise from the statutory language, which is yet another example of the shoddy drafting that is a hallmark of BAPCPA.   First, whether a debtor can effectively assume a lease under § 365(p)(2) without entering into a reaffirmation under  § 524(c) and second, if assumption  under § 365(p)(2) can occur without reaffirmation, are the debtor’s obligations under the lease subject to discharge, in effect providing for "ride-through". The author concludes that § 365(p)(2) was intended to function in a simple and streamlined fashion,  independent from protections afforded to reaffirmations under § 524(c), including creditor disclosures, attorney certifications and judicial oversight. This article is not currently available on the SSRN website, but is availble in the American Bankruptcy Law Journal and can be purchased at: http://tinyurl.com/7jhxsjm