September 18, 2018

Chapter 7 in Georgia Becomes More Difficult on November 1, 2010

The United States Trustee has released revised median income figures for Georgia households.  These new figures will apply to Chapter 7 and Chapter 13 cases filed after November 1.   The revised figures continue the trend of lower household income amounts meaning that it will be more difficult to avoid a “presumption of abuse” in Chapter 7 filings.  Presumably the new numbers reflect lower household income figures associated with the current recession.

The Bankruptcy Code looks to median household income figures compiled by the U.S. Census to determine whether or not you have the “means” or capacity to pay back some or all of your bills.   Means testing was introduced into the consumer bankruptcy process in 2005.

The chart below summarizes the impact of the revised numbers:

Family sizeMedian income
thru Oct. 31
Median income:
after November 1

The impact of this change is most pronounced on two person and three person families.   Lower median income numbers mean that more filers will end up in Chapter 13 since anyone “above median” will be presumed to have enough money to pay back creditors in a Chapter 13.  Chapter 13 cases filed using the new numbers will also result in higher monthly trustee payments because the amount of funds “available” to pay back creditors will be higher.

Above median debtors are not without hope – those filers can still qualify for Chapter 7 under part 2 of the means test, but that process puts more scrutiny on a filer’s budget and adds to the complexity of the filing.  Read more about the forthcoming change to the median income tables on the Bankruptcy Law Network, where my colleague Jill Michaux has posted an article entitled “The Means Test Gets Meaner.”

Bottom line:  if you are considering Chapter 7, look closely at that option prior to November 1, 2010 or risk an unpleasant post-Halloween surprise.

Supreme Court Issues Important Ruling About Chapter 13

Supreme Court of the United StatesOn June 7, 2010, the United States Supreme Court released its decision in the case of Hamilton, Chapter 13 Trustee v. Lanning.   The Supreme Court rarely hears argument in consumer bankruptcy cases so the Lanning decision is big news to consumer bankruptcy lawyers.

The issue in Lanning is one that has troubled bankruptcy lawyers since 2005, when the “means test” was added to the Bankruptcy Code.   The means test functions as a test – do you have the “means” or disposable income to fund a Chapter 13 repayment plan?  If the means test shows that you do not have sufficient disposable income to make a Chapter 13 work, then you qualify for Chapter 7.

As one of the assistant United States trustees once told me – the purpose of the means test is to disqualify as many people as possible from Chapter 7, and to force them into Chapter 13.

In practice, the means test does not work very well in predicting who can make a Chapter 13 work.  One of the biggest complaints has to do with the mechanical nature of means testing.   To run a means test, I have to gather pay stubs from the past 6 months.  I then create a monthly average, which represents available income.  Next I prepare a means test budget, but I do not use actual expense amounts.  Instead, the means test tells me how much my clients are allowed to spend for food, medicine, utilities, etc.  And where do these budget numbers come from?  Means test numbers are based on IRS budgets used in delinquent tax repayment plans.  In other words, the means test budget allocations are not especially generous. [Read more…]

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