The Bankruptcy Means Test

Law Office of John Bristol - 1776 N. Pine Island Road, #224, Plantation, Florida 33322 (954) 475-2265

Means Test Calculation

Since 1988, Fort Lauderdale Bankruptcy Attorney Center of John Bristol has filed more than 5,000 consumer Chapter 7 Bankruptcy and Chapter 13 Bankruptcy Cases in the Fort Lauderdale area (the Southern District of Florida). As a Fort Lauderdale Bankruptcy Attorney; John concentrates his Bankruptcy law practice only in Broward County. We offer PAYMENT PLANS and give FREE CONSULTATIONS (954) 475-2265

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The Means Test is the "current monthly income" test to determine if you make too much money to qualify for a chapter 7 bankruptcy case. 

The Bankruptcy Means Test is a defined term in the Bankruptcy Code and means the average monthly income received over the six calendar months before commencement of the bankruptcy case, including regular contributions to household expenses from non-debtors and including income from the debtor's spouse if the petition is a joint petition, but does not include social security income or certain payments made because the debtor is the victim of certain crimes. 11 U.S.C. § 101(10A).  To determine whether a presumption of abuse arises, all individual debtors with primarily consumer debts who file a chapter 7 Bankruptcy case must complete Official Bankruptcy Form B22A, entitled "Statement of Current Monthly Income and Means Test Calculation - For Use in Chapter 7 Bankruptcy."  If you earn too much money, you are required to file a Chapter 13 Bankruptcy.  As your Bankruptcy Lawyer, John Bristol will prepare your means test and advise you as to the property bankruptcy case filing for you.

Unsecured debts generally may be defined as those for which the extension of credit was based purely upon an evaluation by the creditor of the debtor's ability to pay, as opposed to secured debts, for which the extension of credit was based upon the creditor's right to seize collateral on default, in addition to the debtor's ability to pay.  Therefore, secured debt payments change the means test calculation.  For example, your house payment is a large monthly payment that significantly changes the means test.

In the State of Florida a person with annual income above approximately $43,000.00 does not qualify for a chapter 7 bankruptcy.  This amount fluctuates upon several factors including payments a person is required to make.  Specifically, a mortgage payment, car payment and children's education can change the "Means Test".   All of the financial factors in a persons life can change the means test to qualify for a chapter 7 or chapter 3 bankruptcy.  Therefore, it is important to contact Bankruptcy Attorney John Bristol to discuss the means test. For More Information concerning the "Means Test", see US Courts.gov

 

Fort Lauderdale, FL. 33324 Means Test

 

Most individual debtors filing for bankruptcy relief are required to complete a version of Bankruptcy Form 122. Official Form 122A-1 (Chapter 7 Statement of Your Current Monthly Income), Official Form 122A-1Supp (Statement of Exemption from Presumption of Abuse Under § 707(b)(2)), and Official Form 122A-2 (Chapter 7 Means Test Calculation) (collectively the “122A Forms”) are designed for use in chapter 7 cases. Official Form 122C-1 (Statement of Your Current Monthly Income and Calculation of Commitment Period) and Official Form 122C-2 (Chapter 13 Calculation of Your Disposable Income) (collectively the “122C Forms”) are designed for use in chapter 13 cases.

A debtor must enter income and expense information onto the appropriate form (i.e., the 122A Forms or the 122C Forms) and then make calculations using the information entered. Some of the information needed to complete these forms, such as a debtor's current monthly income, comes from the debtor's own personal records. However, other information needed to complete the forms comes from the Census Bureau and the Internal Revenue Service (IRS). This Web site reproduces the Census Bureau and IRS Data necessary to complete the 122A Forms and the 122C Forms. The source data reproduced here is also available directly from the IRS and Census Bureau using the links at the bottom of this page. However, we and the clerk of your local bankruptcy court are prohibited from providing any legal advice.

 

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1776 N. Pine Island Road #224, Plantation, Florida

Fort Lauderdale, FL. 33324 John Bristol

Coral Springs, Dania, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hollywood, Lauderhill, Margate, Miramar, Pembroke Pines, Plantation, Pompano Beach, Sunrise, Tamarac

 The Law Office of John Bristol, 1776 N. Pine Island Road, #224, Plantation, Florida 33322 is a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.

 

In 2005, the United States substantially changed its bankruptcy laws, adding a means test to prevent wealthy debtors from filing for Chapter 7 Bankruptcy. The most noteworthy change brought by the 2005 BAPCPA amendments occurred within 11 U.S.C. § 707(b). The amendments effectively subject most debtors who make an income, as calculated by the Code, above the median income of the debtor's state to an income-based test. This test is referred to as the "means test." The means test provides for a finding of abuse if the debtor's income is higher than a specified portion of their debts. If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances."

Debtors whose income is below the state's median income are not subject to the means test. Notably, the Code-calculated 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.

Thus, the means test is "a formula designed to keep filers with higher incomes from filing for Chapter 7 bankruptcy. (These filers may use Chapter 13 bankruptcy to repay a portion of their debts, but may not use Chapter 7 to wipe out their debts altogether.)" Many think the bankruptcy means test is complex but generous and most debtors seem to have no trouble meeting its requirements[citation needed], while others[who?] have suggested that the means test is not all that fair or equitable, and have somewhat cynically pointed out that the reference to consumer protection in the bankruptcy act is ironic at best, since those with primarily consumer debt are required to pass a means test while businesses are not. What is undeniable is that it is complex, and the terms that govern many parts of it - including those terms that control whether it applies at all - are of unsettled definition.

 

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In theory, it requires people who can afford to pay at least part of their debts to enter into a Chapter 13 payment arrangement, rather than discharging their debts in Chapter 7. The driving force behind the enactment of means test was the banking and credit card lobby, which sold the test to Congress in 2005 as a tool to prevent bankruptcy abuse. In practice the means test does little to stop bankruptcy abuse. Instead, by setting arbitrary income caps and failing to take into account the debtor’s actual ability to pay, it forces some struggling middle-income debtors into pointless or unworkable five-year Chapter 13 plans. Often these plans are exercises in futility, paying back unsecured creditors only a nominal amount.

Certainly, some debtors with significant disposable income should be in Chapter 13. For others, such as those who are seriously behind on a mortgage or auto loan, Chapter 13 offers the option to keep their home or car. However, for many people who would be better served by Chapter 7, the means test can be a trap. Therefore, it is important to understand how the test impacts your options under the Bankruptcy Code. It is generally not a good idea to tackle the highly complex means test without the advice of an experienced bankruptcy attorney. However, the best way to show how the means test works is to go through the process step-by-step with examples, as we have done below.

First, calculate your current monthly income. The first step in completing the means test is determining your “Current Monthly Income” or “CMI.” CMI is not the same as your actual current income or what you are making right now. Rather, it is an average of your income over a specific period of time.

 

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To obtain your CMI, you must average your monthly gross income (your income before taxes and other deductions) for the six months prior to the month in which you will file for bankruptcy. In other words, add up all of your gross income for the previous six months and divide by six. The resulting figure is your CMI. It is important to keep in mind that in calculating your CMI, you do not include the month that you file. Thus, if you file in October, you would average your income for the months of April through September.

Seniors with SSI and individuals on SSD should note that Social Security income does not count towards your CMI and should not be include in your calculations.

Because CMI is an average, the resulting figure may be significantly more or less than your actual current income. Thus, an unemployed debtor may still have a relatively high CMI, if the unemployment was very recent. (For that reason, bankruptcy attorneys sometimes advise clients to wait to file.) Likewise, if you received little income for several of these months but now have a steady salary, your CMI may be lower than your current income. From Dan Mueller, the Philadelphia Bankruptcy Attorney

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The Law Office of John Bristol, 1776 N. Pine Island Road, #224, Plantation, Florida 33322 is a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code. Disclosure: The hiring of a lawyer is an important decision that should not be based solely on advertising. Before you decide please ask us for information concerning out qualifications and experience
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Law Office of John Bristol
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