Bankruptcy is premised in part on the desire to allow individuals to retain enough assets to begin life over. As part of this premise, Congress enacted section 522(f)(2) of the Bankruptcy Act of 1978. This provision allows debtors to avoid nonpossessory, nonpurchase money security interests in otherwise exempt property. This provision has created problems, however, as debtors have argued that it acts retroactively to void security interests created before the Act's enactment date. In Rodrock v. Security Industrial Bank, the Supreme Court will decide whether Congress intended such retroactive application to occur, and if it did, whether such action constitutes a "taking" under the fifth amendment This article will argue that principles of statutory construction, as applied historically in bankruptcy cases, should result in a finding that Congress did not intend for retroactive application. Alternatively, the article will argue that application to security interests created prior to Nov. 6, 1978, violates the fifth amendment's prohibition of taking private property without just compensation.
James B. Craven III & Pamela A. Bates-Smith,
Bankruptcy Reform and the Constitution: Retroactive Application of Section 522(f)(2) Takes Private Property,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol84/iss3/6