Under the new bankruptcy law, how does means testing work?

bankruptcy chapter 7 chapter 13 consumer bankruptcy

Under the new bankruptcy law, how does means testing work?

For cases filed on or after October 17, 2005, it remains the law that any individual may file a case under any Chapter of Title 11 for which they are qualified. It also remains the law that the court may dismiss a Chapter 7 case for “abuse,” which need no longer be “substantial.” Congress enacted a mechanical “means test” for determining whether a Chapter 7 filing should be presumed to be abusive.
Performing the means test is straightforward, but very tedious, using new form B22A. The first step is to average the debtor’s income from every source during the preceding six calendar months. A married debtor must also average his or her spouse’s income during the same period, unless the spouses are separated for purposes other than avoiding the means test. Regular contributions toward household expenses by persons other than the debtor are counted in this total. The resulting average is called Current Monthly Income (CMI), even though it is neither current, monthly, nor limited to actual income.
The second step in the means test is to compare CMI with the median income for households of the same size in the debtor’s state. Each state’s average is based on US census figures; click http://www.usdoj.gov/ust/eo/bapcpa/20081001/meanstesting.htm). If the debtor’s CMI (or the debtor’s plus the spouse’s CMI) is above the median income, creditors will later be permitted to file dismissal motions based on alleged abuse. If the total is less than the median income, only the United States Trustee (or the court acting on its own initiative) can file such a motion.
The third step in the means test is the most counterintuitive. If a married debtor is filing individually, the non-filing spouse’s income has so far been part of the CMI calculation. The B22A form directs the debtor to subtract back out all of the non-filing spouse’s income that is not a contribution to household expenses. When this part of the calculation is complete, the resulting “adjusted CMI” will include all of the debtor’s income for the six preceding calendar months plus any regular contributions made by the spouse to the debtor’s household expenses. This new number is compared to the state median income for households of the same size. If it’s smaller, no presumption of abuse arises. If it’s bigger, there are more calculations to perform.
The fourth step in the means test, which need only be done if the debtor’s adjusted CMI is above median, is to calculate deductions in many categories. It’s not possible in a short online discussion like this one to explain how to do this, and the B22A form is (unfortunately) not self-explanatory in every case. The result of subtracting deductions from adjusted CMI is the debtor’s Net Monthly Income (NMI).
The fifth and final step in the means test is to decide how much unsecured debt could be repaid over 60 months using all of the debtor’s NMI. In summary, the decision tree goes like this: . If NMI is less than $110, there is no presumption of abuse. . If NMI is greater than $182.50, there is a presumption of abuse. . If NMI is between those two numbers, one multiplies it by 240 and compares the result with the total of unsecured debt. (The figures of $110 and $182.50 increase periodically for inflation.) If the result is greater, there is a presumption of abuse; otherwise, there is no such presumption. (This calculation determines whether the debtor could repay at least 25% of unsecured debt over the course of a 60-month Chapter 13 plan, which is what the statute actually directs the debtor to figure out. The statutory test is harder to describe.)
A presumption of abuse just means that a Chapter 7 filing is presumed to be abusive in the absence of evidence proving otherwise. A debtor for whom the presumption arises may still rebut the presumption by offering evidence of special circumstances. For example, victims of natural disasters like Hurricane Katrina may show income loss, expense increase, and other adverse effects of the disaster in order to demonstrate special circumstances.

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