July 16, 2010

Means Test Basics

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, commonly known as BAPCPA, imposed a "means test" on those filing bankruptcy. This means test primarily determines whether the chapter 7 filing is "presumptively abusive".

In order to determine whether a presumption of abuse exists, the debtor's current monthly disposable income (as determined by the means test itself) is multiplied by 60. If that amount is is equal to or greater than the lesser of $10,000 or 25 percent of the debtor's non priority unsecured debt, the presumption of abuse exists.

Presumptively Abusive doesn't mean that the filer is a bad person...it just means that if the filer were allowed to stay in the chapter 7 bankruptcy and gain a discharge of debt, the law wouldn't be followed.

If the filing fails the means test, the filer will have to convert to or file in the first place a chapter 13 bankruptcy, and pay a specific amount based on a form of the same test to unsecured creditors over what is typically a 5 year period UNLESS the filer is able to successfully rebut the presumption of abuse.

This means test only applies to individuals not businesses, and only if the debt is primarily consumer debt, or debt incurred by the individual for personal, family or household reasons. If the debt is primarily non consumer i.e. for the purpose of earning a profit or involuntary like tax debt, the means test shouldn't apply.

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November 30, 2009

Surrendering a car in chapter 13 bankruptcy will negatively effect amount paid unsecured creditors

A chapter 13 bankruptcy requires that an "above median" debtor take a "means test" in order to determine how much that debtor must pay to unsecured creditors during the plan. This amount is called "disposable monthly income"

A key to obtaining a favorable i.e. low number is to be able to show the highest "budget" possible when taking this test.

In an attempt to do so, many bankruptcy filers throughout the U.S. have been showing as part of their budget the debt owed on cars they know will be surrendered, with some mixed results.

The question of whether this is possible has ended in the 9th circuit.

In American Express v. Smith, the Court of Appeals has ruled that subsections (b)(2) and (b)(3) of section 1325 of the bankruptcy code provide that if an expense is not reasonably necessary "for a debtor's and/or dependants' maintenance and support, it is not included in the calculation of disposable income"..."items that a debtor has surrendered or intends to surrender are not necessary for his or her support or maintenance."

In other words, if you know you are not going to keep the car for whatever reason, the amount you owe on it can't be used to determine the amount you can pay your unsecured creditors in a chapter 13 bankruptcy. i.e. you will end up paying more to unsecured creditors if surrendering the car.

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