The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) () is a legislative act that made several significant changes to the United States Bankruptcy Code.
Referred to colloquially as the "New Bankruptcy Law", the Act of Congress attempts to, among other things, make it more difficult for some consumers to file bankruptcy under Chapter 7; some of these consumers may instead utilize Chapter 13.
It was passed by the 109th United States Congress on April 14, 2005, and signed into law by President George W. Bush on April 20, 2005. Provisions of the act apply to cases filed on or after October 17, 2005.
Provisions The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) made changes to American bankruptcy laws, affecting both consumer and business bankruptcies. Many of the bill's provisions were explicitly designed by the bill's Congressional sponsors to make it "more difficult for people to file for bankruptcy."Opening Statement of Sen. Chuck Grassley at the Bankruptcy Reform Hearing, 2005-02-10, Press Release, Senator Chuck Grassley of Iowa The BAPCPA was intended to make it more difficult for debtors to file a Chapter 7 Bankruptcy—under which most debts are forgiven (or discharged)—and instead required them to file a Chapter 13 Bankruptcy—under which the debts they incurred are discharged only after the debtor has repaid some portion of these debts.
Some of the bill's more significant provisions include the following:
Presumption of abuse Prior to the BAPCPA Amendments, debtors of all incomes could file for bankruptcy under Chapter 7. BAPCPA restricted the number of debtors that could declare Chapter 7 bankruptcy. The act sets out a method to calculate a debtor's income, and compares this amount to the median income of the debtor's state. If the debtor's income is above the median income amount of the debtor's state, the debtor is subject to a "means test."Sahadi, Jeanne. "The new bankruptcy law and you". CNNMoney.com, October 17, 2005. Retrieved on April 12, 2007.
The most noteworthy change brought by the 2005 BAPCPA amendments occurred within . Congress amended this section of the Bankruptcy Code to provide for the dismissal or conversion of a Chapter 7 case upon a finding of "abuse" by an individual debtor (or married couple) with "primarily consumer debt". The pre-BAPCPA language of § 707(b) provided for dismissal of a chapter 7 case upon a finding of "substantial abuse". Under the former § 707(b), only the court or the United States trustee could bring a motion to find abuse under the section. The 2005 amendments removed these restrictions.
Post-BAPCPA, § 707(b) provides two definitions of "abuse". "Abuse" may be found when there is an unrebutted "presumption of abuse" arising under a BAPCPA-created "means test", [see ], or through a finding of bad faith, determined by a totality of the circumstances [see ].
Means test
Only debtors whose monthly income is higher than the median income of their state, as calculated by the Code, are subject to being found abusive under § 707(b)(2). Debtors whose income falls below the median income figure may be in violation of the means test, however no party is permitted to file a motion in order to find abuse under § 707(b)(2), [see ]. This creates a means test "safe harbor" for debtors below the state's median income figure.
Current monthly income is defined in as the monthly average of the income received by the debtor (and the debtor's spouse in a joint case) during a defined six-month time period prior to the filing of the bankruptcy case. Some narrow classes of payments, for example, social security, are excluded from these figures. Notably, the average income may be higher or lower than the debtor's actual income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code's "current monthly income" as "presumed income". If the debtor's debt is not primarily consumer debt, then the means test is inapplicable.
The applicable median income figure is adjusted by family size. Generally, the larger the family, the greater the applicable median income figure and the more money the debtor must earn before a presumption of abuse arises. A chart of the most recent applicable median incomes by state can be found at the US Trustee's website.Census Bureau Median Family Income By Family Size, U.S. Trustee Program, Department of Justice
This code section then requires a comparison between the debtor's "current monthly income" and the median income for the debtor's state. If the debtor's income exceeds the median income, then the debtor must apply the means test.
For debtors subject to the means test, the test is calculated as follows. The debtor's "current monthly income" is reduced by a set of allowed deductions specified by the IRS. These deductions are not necessarily the actual expenses the debtor incurs on a monthly basis. Some commentators have referred to these deductions as "presumed expenses".
The deductions applicable in the "means test" are defined in , (ii)-(iv) and include: living expenses specified under the "collection standards of the Internal Revenue Service", actual expenses not provided by the Internal Revenue Standards including "reasonably necessary health insurance, disability insurance, and health savings account expenses", expenses for protection from family violence, continued contributions to care of nondependent family members, actual expenses of administering a chapter 13 plan, expenses for grade and high school, up to $1,500 annually per minor child provided that the expenses are reasonable and necessary, additional home energy costs in addition to those laid out in the IRS guidelines that are reasonable and necessary, 1/60th of all secured debt that will become due in the five years after the filing of the bankruptcy case, 1/60th of all priority debt, and continued contributions to tax-exempt charities.
An itemized list of the applicable IRS living standards can be found at the US Trustee's website.
A "presumption of abuse" will arise if: (1) the debtor has at least $182.50 in current monthly income available after the allowed deductions (this equals $10,950 over five years) regardless of the amount of debt, or (2) the debtor has at least $109.59 of such income ($6,575 over five years) and this sum would be enough to pay general unsecured creditors more than 25% over five years. For example, if a debtor had exactly $109.59 of "current monthly income" left after deductions and owed less than $26,300 in general unsecured debt, then the presumption of abuse would arise, [see ].
If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances", [see ].
Nonpresumed abuse
Even in cases where there is no presumption of abuse, it is still possible for a Chapter 7 case to be dismissed or converted. If the debtor's "current monthly income" is below the median income, as discussed above, only the court or the United States trustee (or bankruptcy administrator) can seek dismissal or conversion of the debtor's case. If the debtor's "current monthly income" is above the median income, as discussed above, any party in interest may seek dismissal or conversion of the case. The grounds for dismissal under are the filing of a petition in "bad faith", or when "the totality of the circumstances (including whether the debtor seeks to reject a personal services contract and the financial need for such rejection as sought by the debtor) of the debtor's financial situation demonstrates abuse."
Waiting period between filings
Another change that resulted from the BAPCPA was an extension of the time between multiple bankruptcy filings. was amended to provide that the debtor would be denied a discharge if a debtor had received a discharge in a prior Chapter 7 case filed within eight years of the filing of the present case. Prior to BAPCPA, the rule was six years between chapter 7 filings. BAPCPA did not change the rule for the waiting period if the debtor filed a chapter 13 previously.
Credit counseling and debtor education requirements Another major change to the law enacted by BAPCPA deals with eligibility. Section 109(h) provides that a debtor will no longer be eligible to file under either chapter 7 or chapter 13 unless within 180 days prior to filing the debtor received an "individual or group briefing" from a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator.
The new legislation also requires that all individual debtors in either chapter 7 or chapter 13 complete an "instructional course concerning personal financial management." If a chapter 7 debtor does not complete the course, it constitutes grounds for denial of discharge pursuant to new . The financial management program is experimental and the effectiveness of the program is to be studied for 18 months. Theoretically, if the educational courses prove to be ineffective, the requirement may disappear.
In 2006 more than half of all certified pre-filing counseling sessions were rendered by the three largest agencies: Money Management International, Consumer Credit Counseling Service of Greater Atlanta and GreenPath Debt Solutions.
A 2007 GAO report was inconclusive regarding the efficacy of the counseling provisions and concluded that there is no mechanism in place to evaluate it:Bankruptcy Reform: Value of Credit Counseling Requirement Is Not Clear
Applicability of Automatic Stay
The automatic stay in bankruptcy is the result of Section 362 of the Bankruptcy Code that requires all collection proceedings to stop. There are exceptions, of course, but generally this is the term for the "relief" from collection proceedings a debtor receives by filing the bankruptcy with the bankruptcy clerk's office. BAPCPA limited the protections the stay provides in some re-filed cases. New § 362(c)(3) provides that if the debtor files a chapter 7, 11 or 13 case within one year of the dismissal of an earlier case, the automatic stay in the present case terminates 30 days after the filing, unless the debtor or some other party in interest files a motion and demonstrates that the present case was filed in good faith with respect to the creditor, or creditors, being stayed. If the present case is a third filing within one year, the automatic stay does not go into effect at all, unless the debtor or any other party in interest files a motion to impose the stay that demonstrates that the third filing is in good faith with respect to the creditor, or creditors, being stayed.
The provision presumes that the repeat filings are not in good faith and requires the party seeking to impose the stay (usually the debtor) to rebut the presumption by clear and convincing evidence.
There are exceptions. Notably, § 362(i) provides that the presumption that the repeat filing was not in good faith would not arise in a "subsequent" case if a debtor's prior case was dismissed "due to the creation of a debt repayment plan."
BAPCPA also limited the applicability of the automatic stay in eviction proceedings. The stay does not stop an eviction proceeding if the landlord has already obtained a judgment of possession prior to the bankruptcy case being filed, § 362(b)(22). The stay also would not apply in a situation where the eviction is based on "endangerment" of the rented property or "illegal use of controlled substances" on the property, § 362(b)(23). In either situation the landlord must file with the court and serve on the debtor a certificate of non-applicability of the stay spelling out the facts giving rise to one of the exceptions. There is a process for the debtor to contest the assertions in the landlord's certificate or if state law gives the debtor an additional right to cure the default even after an order for possession is entered, § 362(l) & (m).