How Will the New Bankruptcy Law Affect Me?

19 Feb How Will the New Bankruptcy Law Affect Me?

On October 17, 2005, the misnamed “Bankruptcy Abuse Prevention and Consumer Protection Act” (BAPCPA) went into effect. It is misnamed because it will do little to prevent bankruptcy abuse, while being the most anti-consumer law passed in the last 25 years. As Bankruptcy Judge Frank Monroe put it in a recent case, “the legislation’s adoption in its title of the words “consumer protection” the “grossest of misnomers.” The new law does not prevent bankruptcy (see Top 15 Myths About the New Bankruptcy Law.) It does, however, make a number of changes in how people file and the procedures during their cases.

BAPCPA was over 500 pages long. Many of its changes matter only to academicians, or will have little effect on most consumers who file. Below are a number of the main changes that will impact consumer debtors. (A detailed analysis of all the consumer changes may be found here.)

Credit Counseling. Before an individual can file for Chapter 7 or 13, he or she must complete a Credit Counseling course. Not to worry—the course usually lasts for 45–90 minutes, and can be taken by telephone or over the internet from a U.S. Trustee-approved counselor. For our recommendations for counselors, read our Credit Counseling page. The course must be taken within 180 days of filing, and costs about $50.

You must also take a Credit Education course before you can receive your discharge.

Means Test. If your Current Monthly Income—as determined by a formula that may have little to do with your actual current monthly income, expenses or debt, but does include aspects of your income, expenses, and debt—is less than the median income in your state, you can file for bankruptcy under Chapter 7. In Maryland, the median income for a household of one is $50,509, for a household of 3, $78,211, and for a household of 6, $105,102.

If your Current Monthly Income is more than the median income in your state, and your Disposable Income—again, determined by a formula—is over $100 per month, you may have difficulties in filing a Chapter 7 case and will have to file a Chapter 13 case.

Social Security income is not included as part of Current Monthly Income.

Tax Returns and Proof of Income. Under BAPCPA, you must provide the Trustee or the Court with copies of your federal tax returns from the last tax year they were filed. You may be required to file returns for previous years if you have not done so. You must also provide copies of “pay advances”—usually paystubs—for the 60 days before your case was filed.

Fewer “Automatic Stay” Protections. Once you file for bankruptcy, the Automatic Stay provides immediate protection from creditors and others, including most debt collection and lawsuit actions. Under BAPCPA, some of these protections have been limited or eliminated. For example, filing for bankruptcy no longer delays or stops eviction actions, driver’s license suspensions, legal actions for child support, or divorce proceedings.

New Priority for Unpaid Domestic Support Obligations. Under BAPCPA, Domestic Support Obligations (usually alimony, child support and property distribution) are given priority over almost every other creditor.

Homestead Restrictions. BAPCPA affects homeowners with more than $125,000 in equity who live in the District of Columbia, California, Texas and Florida. These states have had unlimited homestead exemptions, meaning that, regardless of how much equity you had in your house, creditors and bankruptcy trustees could not touch it. This has now been changed. Homestead exemptions are now capped at $125,000, unless you have lived in that state at least 40 months. If you have lived in that state for more than 40 months, your state’s homestead exemption amount applies, even if it’s higher than $125,000. Maryland homeowners are unaffected, since Maryland has no homestead exemption.

Cramdowns. Under the old law, in a Chapter 13 case you could “cram down” loans. This meant that you would only have to pay the value of an item, instead of the (often higher) loan amount. Typically used for cars, BAPCPA prohibits cram downs on car loans where the car was purchased for consumer purposes within 910 days before your case was filed.

Refiling Restrictions. You may receive only one Chapter 7 discharge every 8 years, up from the 6 years pre-BAPCPA. You are still allowed to file a “Chapter 20,” that is a Chapter 7 followed by a Chapter 13. Chapter 20 cases can be useful where you have a lot of unsecured Debt and are behind on your mortgage or car payments.

Reaffirmations. It may be necessary for you to Reaffirm your car, depending on which state you live in, even if your payments are current. This is a fast-developing area of the law, and it is currently quite unclear (and may depend on which state you live in.)

If you find yourself in a real bind, or need further information, call us. We are experienced in all aspects of collections and bankruptcy. We can help you restructure your finances, schedule workout arrangements and, if necessary, advise and represent you in bankruptcy.

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Brett Weiss, a senior partner at Chung & Press, LLC, represents people and businesses in all phases of bankruptcy. He has experience in complex individual Chapter 7, Chapter 11 and Chapter 13 bankruptcy cases, and in Chapter 11 small business restructuring and reorganization. Mr. Weiss lectures nationally on bankruptcy issues. He has testified before the Federal Bankruptcy Rules Committee, the Consumer Financial Protection Bureau, and has twice testified before Congress on bankruptcy and credit issues. Brett Weiss is the co-author of Chapter 11 for Individual Debtors, and has written Not Dead Yet: Bankruptcy After BAPCPA, for the Maryland Bar Journal, as well as hundreds of blogs for the Bankruptcy Law Network. With his law partner, he recorded a 13-hour basic bankruptcy training series, and leads intensive three-day Chapter 11 training boot camps. Mr. Weiss has received international media attention in connection with his work. He was interviewed by Barbara Walters on The View, has appeared on the Today Show, Good Morning America, ABC News with Peter Jennings, the Montel Williams Show, National Public Radio, AARP-TV, the BBC World Service, German state television, and numerous local radio and television programs, and been quoted in Money magazine, The Washington Post and The Baltimore Sun, among others. Brett Weiss is the Maryland State Chair for the National Association of Consumer Bankruptcy Attorneys, a founding member of the Bankruptcy Law Network, on the board of the Maryland State Bar Consumer Bankruptcy Council, and a member of the American Bankruptcy Institute, the Bankruptcy Bar Association of Maryland, and the Civil Justice Network. He has been recognized as a “Super Lawyer” every year since 2007 for Maryland and the District of Columbia, and in 2011 received the Distinguished Service Award from the National Association of Consumer Bankruptcy Attorneys for his work on behalf of consumers across the country. Mr. Weiss is admitted to practice before Maryland and District of Columbia federal and state courts, the United States Courts of Appeals for the DC, Fourth and Eighth Circuits, The United States Tax Court, and the Supreme Court of the United States, and has been practicing law since 1983.
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