§ 2.3     Brief History of Chapter 13 after BAPCPA
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 2.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

There have been statutory changes to Chapter 13 after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).1 The post-BAPCPA amendments are collected in Appendix R organized by section of Chapter 13 and by year of enactment within each section. This Appendix R also contains selected post-BAPCPA amendments to Code sections not in Chapter 13 that impact Chapter 13 practice.

[2]

The first change to Chapter 13 after BAPCPA was the December 20, 2006, enactment of the Religious Liberty and Charitable Donations Clarification Act of 2006.2 Detailed elsewhere,3 less than artful drafting in BAPCPA created confusion about how to account for charitable contributions for purposes of the projected disposable income test at confirmation of a Chapter 13 case. Congress “clarified” that most charitable contributions up to 15 percent of a debtor’s gross income were excluded from disposable income.

[3]

In 2007, 2010, 2013, and 2016 the dollar amounts in various sections of Chapter 13 automatically adjusted effective on April 1 of each year. This automatic adjustment every three years is required by § 104 as amended by the Bankruptcy Reform Act of 1994.4

 

    In 2008, the National Guard and Reservists Debt Relief Act of 2008 [endnote: National Guard and Reservists Debt Relief Act of 2008, Pub. L. No. 110-438, § 2(1)-(4), 122 Stat. 5000 (Oct. 20, 2008) (Act became effective December 19, 2008.).]  amended§ 707(b)(2)(D) to exempt from all forms of the means test qualifying reservists of the armed forces and members of the National Guard called to active duty for at least 90-days, or who perform homeland defense activity for at least 90-days.  The exemption applies during the period of activity, and for 540-days thereafter.  The exemption originally was effective for three years counted from December 19, 2008.  The exemption was extended to seven years in 2011, [note: National Guard and Reservists Debt Relief Extension Act of 2011, Pub. L. No. 112-64, §  2, 125 Stat. 766 (Dec. 13, 2011) ("Section 4(b) of the National Guard and Reservists Debt Relief Act of 2008 . . . is amended by striking '3-year' and inserting '7-year'. )] and to eleven years in 2015. [note:  National Guard and Reservists Debt Relief Extension Act of 2015, Pub. L. No. 114-107, §  102, 129 Stat. 2233 (Dec. 18, 2015) ("An Act to exempt for an additional 4-year period, from the application of the means-test presumption of abuse under chapter 7, qualifying members of reserve components of the Armed Forces and members of the National Guard who, after September 11, 2001, are called to active duty or to perform a homeland defense activity for not less than 90 days.").]   

 

[4]

In 2009, Congress amended § 109 to extend from five days to seven days the period during which a potential debtor must be unable to obtain a prepetition briefing to be eligible for the “exigent circumstances” waiver in § 109(h)(3).5 This change was part of a larger effort to change five days to seven days in many (but not all) bankruptcy statutes and rules.6

[5]

In 2010, Congress (finally) enacted a “technical amendments” bill to straighten out dozens of non sequiturs, mistaken cross-references, incomplete sentences and other messes in BAPCPA.7 The Bankruptcy Technical Corrections Act of 20108 is reproduced in full in Appendix S.

[6]

Most of the 2010 Act was indeed technically corrective. However, several of the “clarifying” amendments changed the internal logic or meaning of sections of BAPCPA in ways that are hardly technical.9

 

     In 2015, §§ 521, 541 and 707 were amended to address the treatment of ABLE [note: As established under the Stephen Beck Jr., Achieving a Better Life Experience Act of 2014, otherwise known as the ABLE Act, Pub. L. No. 113-295, 128 Stat. 4010 (Dec. 19, 2014).  ABLE accounts are tax-advantaged saving accounts  for individuals with disabilities and their families.  Income earned by ABLE accounts is not taxed.  Contributions to an ABLE account can be made by the account owner/beneficiary, family members or friends.] accounts in bankruptcy. [note: Tax Increase Prevention Act of 2014, Div. B, Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014, Pub. L. No. 113-295, § 104(a), (b) & (c), 128 Stat. 4010 (Dec. 19, 2014).] Section 521(c) was amended to require debtors to disclose any interest in an ABLE account. [note: Pub. L. No. 113-295,§ 104(c), 128 Stat. 4010, 4064 (Dec. 19, 2014).] Under new §  541(b)(10), [note: Publ. L. No. 113-295, § 104(a), 128 Stat. 4010, 4064-64 (Dec. 19, 2014).] certain funds placed in a qualified ABLE account are excluded from property of the estate.  Specifically, excluded are "funds placed in an account of a qualified ABLE program . . . not later than 365 days before the date of the filing of the petition in a case under this title, but -- (A) only if the designated beneficiary of such account was a child, stepchild, grandchild, or stepgrandchild of the debtor for the taxable year for which funds were placed in such account; (B) only to the extent that such funds-- (i) are not pledged or promised to any entity in connection with any extension of credit; and (ii) are not excess contributions . . . ; and (C) in the case of funds placed in all such accounts having the same designated beneficiary not earlier than 720 days nor later than 365 days before such date, only so much of such funds as does not exceed $6,225." [note: Pub. L. No. 113-295, § 104(a), 128 Stat. 4010, 4063-64 (Dec. 19, 2014).] The means test was amended by adding at the end of §  707(b)(2)(A)(ii)(II) that a debtor's monthly expenses could include "contributions to an account of a qualified ABLE program to the extent such contributions are not excess contributions (as described in section 4973(h) of the Internal Revenue Code of 1986) and if the designated beneficiary of such account is a child, stepchild, or grandchild, or stepgranchild of the debtor." [note: Pub. L. No. 113-295, §  104(b), 128 Stat. 4010, 4064 (Dec. 19, 2014). See also LOC § 36.19.]

 

 


 

1  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

2  Pub. L. No. 109-439, 120 Stat. 3285 (Dec. 20, 2006).

 

3  See § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?).

 

4  Pub. L. No. 103-394, § 108(e), 108 Stat. 4106 (1994). See § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request and § 20.5  Briefing after Temporary Exemption.

 

5  Pub. L. No. 111-16, § 2(1), 123 Stat. 1607 (May 7, 2009). See § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request and § 20.5  Briefing after Temporary Exemption.

 

6  But see 11 U.S.C. § 528(a)(1), which allows “five business days” for a debt relief agency to execute a written contract with an assisted person. This five-business-day period was not enlarged by the 2009 amendments.

 

7  See § 3.10  Nine: Malice or Incompetence? for some examples.

 

8  Pub. L. No. 111-327, 124 Stat. 3561 (Dec. 22, 2010).

 

9  See, e.g., 2010 changes to 11 U.S.C. § 109(h) dealing with a prepetition briefing on the same day as the filing of a Chapter 13 petition, discussed in § 19.2  Timing of Briefing. See also 2010 changes to 11 U.S.C. § 362(d)(4) which struck out “hinder, and” and inserted “hinder, or.”