Bankruptcy Abuse
Prevention and Consumer Protection Act (BAPCPA)
Analysis
of Consumer Provisions
Michael
Barnett, PA,
Table
of Contents:
¶1.1 Sharing compensation with referral programs
¶1.2
Debt Relief Agency
¶1.21 Debtor counsel as DRA
¶1.22 Advertisements must refer to bankruptcy
¶1.23 Advertisement required disclosure
¶1.24 Requirement to perform advertised services
¶1.25 Offering to provide assistance triggers DRA
¶1.26 Misrepresentation of services, benefits, risks
¶2.1 Limitation on communications with client
¶2.2 DRA accuracy disclosure
¶2.3 DRA bankruptcy information disclosure
¶2.4 DRA disclosure re filling out information
¶2.5 Requirements for counsel to retain DRA disclosures
¶3 Contract
¶3.1 Written DRA contract
¶3.2 Board certification as fee consideration
¶3.3 Inability to waive DRA rights, obligations
¶3.4 Enforceability of non-complying contract provisions
¶3.5 Notice to Debtors modified
¶4 Sanctions for DRA violations
¶5.1 Whether there are prior filings
¶5.2 Time allowed after prior discharge and chapter 7
¶5.3 Time allowed after prior discharge and chapter 13
¶6 Means Test
¶6.1 Disabled veteran – active duty
¶6.2 Average income computation
¶6.3 Median family income comparison
¶6.4 Initial means test computation
¶6.41 Vehicle Operating Allowance
¶6.42 Charitable Contributions
¶6.43 Allowance of secured payments not to be continued
¶6.44 Vehicle Ownership Allowance
¶6.45 Other Expenses
¶6.46 Mandatory Deductions
¶6.5 Rebuttal – Special circumstances
¶7 Requirements for Debtor prior to filing
¶7.1 Credit counseling briefing
¶8 Appointment to Sign Schedules
¶8.1 Advice to clients re accuracy of information
¶8.2 Delivery of notice of available chapters
¶8.3 Accuracy of Schedules
¶8.4 Installment/ waiver of Filing fee
¶8.5 Definition of Transfer re fraudulent transfers
¶8.6 Nondisclosure of minor’s names
¶8.7 Creditor Addresses
¶8.71 Creditor address per last 3 months Statements
¶8.72 Court notice of preferred address for creditor
¶8.73 Effect of improper notice to creditor
¶8.8 Disclosure of Judgment for leasehold interest
¶8.91 Procedures if risk from bankruptcy disclosures
¶8.96 Special procedures re pending foreclosures
¶9 Additional documents to be filed with petition
¶9.1 Credit counseling documents
¶9.2 Means test computations
¶9.3 Income records, tax return, educational IRA, redaction of
identifying information
¶9.4 Time deadlines for documents
¶10
Exemptions and Exclusions from the Estate
¶10.1 Applicable state law
¶10.2 Retirement funds
¶10.3
¶10.31
¶10.32 10 year lookback
¶10.33 Homesteads acquired within 1215 days
¶10.34 Circumstances limiting to $125,000 equity
¶10.4 Time limit for objection to exemptions under §522(q)
¶10.5 Educational IRAs
¶10.6 Prepaid tuition programs
¶10.7 Employer withheld funds for retirement, annuity, or
health insurance
¶10.8 Property pledged as security
¶11
Priority Debts
¶11.1 Divorce obligations
¶11.2 Taxes
¶11.21 Income type taxes
¶11.22 Property taxes
¶11.23 Time for filing priority government claims
¶11.3 Death/Personal Injury from intoxicated operation of
vehicle/vessel
¶12
Changes to the Automatic Stay
¶12.1 Ruling required within 60 days
¶12.2 Evictions
¶12.21 Residential leasehold judgment for possession
¶12.22 Endangered property/Use of Illegal or controlled
substance
¶12.3 Assumption of Leases
¶12.31 Time to assume nonresidential leases
¶12.32 Effect of failure to assume by trustee/debtor
¶12.4 Effect of failure to file or timely carry out Statement
of Intentions
¶12.5 Good faith belief re termination of stay re Statement
of Intentions
¶12.6 Taxes
¶12.61 Setoff of prepetition refund against liability/
adequate protection re turnover of disputed refund
¶12.62 Stay of tax court litigation
¶12.63 Ad Valorem liens for post-petition taxes
¶12.7 Divorce obligations
¶12.8 Wage deductions for repayment of loans from qualified
retirement accounts
¶13
Prior Filings
¶13.1 Filings as scheme to hinder, delay, and defraud
creditor
¶13.2 No stay if debtor ineligible under §109(g) or case
filed in violation of prior order
¶13.3 Prior case within 1 year, stay terminates in 30 days
¶13.4 Two prior cases within year, no stay unless requested
¶14.1 Post-petition notice by creditor of preferred address
¶14.2 Clerk list of designated address for tax collection
agencies
¶14.3 Taxpayer identification number disclosure on
supplements adding creditors
¶15
Claims
¶15.1 Reduction of claim for unreasonable refusal of credit
counseling plan
¶15.2 Administrative expense for rejection of nonresidential
leases previously assumed
¶15.3 Jurisdiction to determine
ad valorem tax liability when deadline to object expired
¶16.1 Valuation at replacement value
¶16.2 Liens related to DSOs not avoidable
¶16.3 Household good definition, effect
¶16.4 Trustee lien avoidance
¶16.41 Limitation re statutory liens
¶16.42 Expansion of Ordinary Course of Business exception
¶16.43 Unavoidability of bona fide payment of DSO
¶16.44 Transfers of less than $5000 if primarily business
debt
¶16.45 Expanded lookback period/ insider employment
contracts
¶16.46 Self-settled trust: 10 year lookback
¶17
Requirements after filing prior to Meeting of
Creditors
¶17.1 Notice of presumption of abuse
¶17.2 Copy of last filed tax return or transcript
¶18
Requirements at meeting of creditors
¶18.1 Identification
¶18.2 Evidence of social security number, current income,
deposit accounts, expenses
¶19
Requirements after meeting of creditors
¶19.1 Financial management course
¶19.11 Requirement to attend
¶19.12 Statement of completion
¶19.2 Intentions re secured debts
¶19.21 Time limit to carry out statement of intentions
shortened
¶19.22 Effect of failure to carry out intention timely
¶19.23 Ipso Facto Clauses validated
¶19.3 Copies of annual tax returns when requested
¶19.4
¶19.5 Notice by trustee to holders of DSO claims
¶20
Debtors Duties during Bankruptcy
¶20.1 Periodic financial reports
¶21
Reaffirmation
¶21.1 General requirements
¶21.2 Creditor refusal to reaffirm on original contract terms
¶22
Dischargeability
¶22.1 Old taxes
¶22.2 Recent purchases and cash advances
¶22.3 Alimony and child support
¶22.4 Student loans
¶22.5 Intoxicated operation of vehicle
¶22.6 Debts incurred to pay nondischargeable state taxes
¶22.7 Debts incurred to pay fines or penalties from Federal
election law violations
¶22.8 Property settlements
¶22.9 Homeowner and Condo fees
¶22.93 Fees, costs, and expenses imposed by court
¶22.96 Debts for loans from qualified retirement plans
¶23
Chapter 13
¶23.1 Tax returns, claims
¶23.11 Filing of last 4 years of tax returns
¶23.12 Extension of time for government to file claim
¶23.13 Requirement to have filed all prepetition tax return
for confirmation
¶23.14 Interest on tax claims
¶23.2 Payments to commence to pmsi creditors to commence
within 30 days
¶23.3 Budget/means test
¶23.31 Definition, effect on plan length
¶23.311 Applicable Commitment Period
¶23.312 Projected Disposable Income from I/J or Means Test
¶23.32 Extension of plan for cause