Myths In The Practice of Bankruptcy Law

Myth 1

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) eliminated the right to file chapter 7 bankruptcy which is the discharge of debt without repayment while retaining assets.

False, False, False. I file as many chapter 7 cases now as I did prior to BAPCPA.

BAPCPA did increase the time involvement of client, attorney and trustee. The cost of filing doubled.

Myth 2

You can’t file chapter 7 bankruptcy if you have real estate, or a large value in personal property.

False. Property is a consideration in determining whether one can file chapter 7 or must file chapter 13. The consideration is the property value net of debt and whether in can be protected by available exemptions.

Myth 3

You can’t have retirement assets.

False. You can have $1,000,000 in qualified retirement plan assets. One debtor I filed had $195,000.00. He kept it all. Like many debtors he borrowed against the account. He’ll have to pay that back as originally contemplated. Other people cash their qualified retirement accounts to stave off bankruptcy. Later, they file anyway and no longer have that asset they could have saved.

Myth 4

You can’t get a discharge for gambling debt.

False. One debtor I filed a Foxwoods debt of over $10,000 that will be discharged. A different outcome may take place in other states like Nevada.


Myth 5

If you make a lot of money, say $100,000 you can’t file chapter 7 bankruptcy.

False. I’‘ve filed chapter 7 cases for single debtors making over $120,000 per year.


Myth 6

Once the bank starts foreclosure the real estate is lost.

False. First, filing a bankruptcy case will stay all collection matters. Chapter 13 plans allow for the debtor to come current by paying the arrearage over the life of the plan. A bankruptcy filing can stop a foreclosure up to the moment a Memorandum of Sale is signed.


Myth 7

Gamblers who suffer substantial losses can’t file bankruptcy.

False. One debtor I filed had over $60,000 in losses the year before filing. It’s important to disclose the losses.


Myth 8

Income you are presently earning will determine if you can file chapter 7 bankruptcy.

False. While “current monthly income” (CMI) is used to determine if one can file, that income is defined as income received and derived in the six months prior to the month of filing. This can make for bizarre results if the debtor was unemployed for a portion of that time and now has a well paying job (debtor makes out), or if the debtor had a well paying job for most of the time and is now unemployed (debtor is in a bad position).


Myth 9

A debtor can’t remove a mortgage or judicial lien from their primary residence.

False. I’ve filed chapter 13 plans stripping a 2nd and 3rd mortgages. The key is their must not be one dollar of security in the mortgages being stripped.

Judicial liens are dissolved by motion in bankruptcy court when they impinge on the debtor’s exempt interest. Recording of the allowed motion in the registry of deeds is required.

It’s Alive! Chapter 7 Bankruptcy After BAPCPA

Mark Twain once traveled to Europe where he learned that his obituary had been published in the New York Journal. Twain responded by saying that “reports of my death are greatly exaggerated.” After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was signed into law by President Bush an impression developed among the general public that Chapter 7 Bankruptcy was dead. The credit industry encouraged the perception that individuals would no longer be able to discharge their debts, but instead would have to repay at least a portion of them in Chapter 13 cases pursuant to a plan. I am happy to report that reports of the death of Chapter 7 bankruptcy are greatly exaggerated.

In the several months preceding October 17, 2008, when BAPCPA became effective, Chapter 7 bankruptcy filings rose dramatically. Individuals rushed to file their cases under the pre-BAPCPA law. Their fear was they would not be eligible to file under BAPCPA. They also did not wish to be subject to numerous new burdens imposed by the new law, or the increased expense of filing which would surely accompany the implementation of the law. Lundquist Consulting Inc., a California financial research firm that tracks bankruptcy data from the nation’s courts reported 479,430 cases were filed in the week before the October 17 implementation date! In the month after the new bankruptcy law took effect, the number of Americans filing for protection from their creditors slowed to a trickle, running at one-tenth the normal number of filings. Lundquist Consulting reported 3,600 cases were filed in the first month following implementation of BAPCPA. In a normal pre-BAPCPA week, about 30,000 cases were filed.

BAPCPA introduced numerous changes in how individuals file bankruptcy cases and in the procedures to be followed. Elimination of Chapter 7 liquidation was not a change in the new law.

A few of BAPCPA’s major changes to the law are:

Credit Counseling is required before an individual can file a Chapter 7 or Chapter 13 bankruptcy case. The debtor must complete a course on the phone or on-line provided by a vendor approved by the United States Trustee. The course takes approximately 45 to 90 minutes to complete. The course must be taken before the petition is filed, but no more than 180 days prior to filing. A second course, in Financial Management, must be taken before a discharge will issue.

Debtors must now provide copies of federal tax returns from the last year filed to the Trustee. Returns from previous years must be filed. Copies of pay-stubs or reports for the 60 days preceding the filing must also be given to the Trustee.

The time between filing Chapter 7 bankruptcy cases was changed from six years to eight. Filing a case any earlier will result in no discharge.

Homestead exemptions were capped by BAPCPA at $125,000, unless the debtor has owned the property for more than1215 days in which case the state’s homestead exemption amount will apply without limitation. The Massachusetts Homestead limit is $500,000.00.

A debtor must live in a state for the 730 days prior to filing bankruptcy to be entitled to claim that states exemptions. The state the debtor was domiciled in the most in the period from 730 days to 910 days ago is the state whose exemptions can be used.

Cash advances totaling more than $750 on a credit card within 70 days of filing are presumed to be non-dischargeable. In addition, charges of luxury goods or services totaling more than $500.00 on a credit card within 90 days of filing are presumed non-dischargeable.

A Median Income/Means Test is implemented to determine eligibility for filing a Chapter 7 case. The Median Income Test allows debtor’s whose Current Monthly Income (CMI) is less than their state’s median income for their household size, to file Chapter 7 bankruptcy. CMI is the average gross monthly income for the preceding six calendar months before filing. For example, a June 16 filing would use income from December 1 to May 31. CMI includes income from all sources except Social Security and most likely unemployment. The test has nothing to do with what the debtor is actually earning. The debtor might be unemployed and earning zero at filing, but his CMI could be very high if he were employed the preceding six months. In Massachusetts the median income for a household of one is $51,176.00, for a household of two is $61,293.00, for a household of three is $75,801 and a household of four is $89,347.00. Implementation of this means test is what the credit industry believed would create a reduction in Chapter 7 bankruptcy filings. If the debtor’s income exceeds the median income for his state and family size, the debtor must perform a Means Test to determine his disposable net income (DNI). Allowable expenses (most of which are from the IRS Collection Standards) are subtracted from CMI. If the resulting DNI is less than $100.00, the debtor can file Chapter 7 bankruptcy. If DNI exceeds $166.66, the debtor probably cannot file a Chapter 7 case. DNI between these to amounts will allow a Chapter 7 filing if the DNI amount is less than 25% of non-priority unsecured debt. If a debtor fails both the Median Income and Means Tests, there is a presumption that the filing of a Chapter 7 case is an abuse.

In my experience as a Massachusetts bankruptcy law lawyer over the last three years, the majority of clients that could have filed their Chapter case under pre-BAPCPA law can still file them under post-BAPCPA.

So, you want to file bankruptcy . . . again.

I’m often asked how many times an individual can file bankruptcy. The answer is there is no limit on how many cases an individual can file. There are rules that certain time periods must follow a from the filing date in a discharged prior bankruptcy case before filing a new case to be eligible for a discharge of debt in the subsequently filed case.

The time periods between the filing date in a discharged prior case and the filing in a new case depend on the type of case being filed and the type of prior case. For example, an individual filing a new Chapter 7 bankruptcy case must be eight years removed from filing date in a prior Chapter 7 case to obtain a discharge of debt in the second case. Other time periods are two years between two Chapter 13 cases, four years between a Chapter 7 filing date and subsequent Chapter 13 case, and six years between the filing date in a Chapter 13 case and a new Chapter 7. There are nuances, exceptions and even reasons to file cases despite these time-frames. Consult an experienced MA bankruptcy lawyer to learn more.