Cite as: Keith M. Lundin, Lundin On Chapter 13, § 2.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)1 was the legislative product of lobbyists representing a coalition of creditors.2 The bankruptcy scholars and practitioners experienced in the design and drafting of bankruptcy legislation were frozen out of the process. As a result, little published discussion or secondary material on BAPCPA was available contemporaneously with passage of the statute.
Since 2005, the law professors and others who regularly write about bankruptcy have scrambled to produce analysis of BAPCPA. This is not a simple task in no small part because BAPCPA was neither well-conceived nor carefully drafted at any level.3 At this writing, some of the better secondary sources on BAPCPA are: Jean Braucher, A Guide to Interpretation of the 2005 Bankruptcy Law, 16 Am. Bankr. Inst. L. Rev. 349 (2008); Erwin Chemerinsky, Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 Am. Bankr. L.J. 571 (2005); Samuel K. Crocker & Robert H. Waldschmidt, Impact of the 2005 Bankruptcy Amendments on Chapter 7 Trustees, 79 Am. Bankr. L.J. 333 (2005); Judith K. Fitzgerald, We All Live in a Yellow Submarine: BAPCPA’s Impact on Family Law Matters, 31 S. Ill. U. L.J. 563 (2007); Susan Jensen, A Legislative History of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 Am. Bankr. L.J. 485 (2005); Bruce A. Markell, The Sub Rosa Subchapter: Individual Debtors in Chapter 11 After BAPCPA, 2007 U. Ill. L. Rev. 67 (2007); Bruce M. Price & Terry Dalton, From Downhill to Slalom: An Empirical Analysis of the Effectiveness of BAPCPA (and Some Unintended Consequences), 26 Yale L. & Pol’y Rev. 135 (2007); Stephen J. Spurr & Kevin M. Ball, The Effects of a Statute (BAPCPA) Designed to Make It More Difficult for People to File for Bankruptcy, 87 Am. Bankr. L.J. 27 (2013); Catherine E. Vance & Corinne Cooper, Nine Traps and One Slap: Attorney Liability Under the New Bankruptcy Law, 79 Am. Bankr. L.J. 283 (2005); Hon. Thomas F. Waldron & Neil M. Berman, Principled Principles of Statutory Interpretation: A Judicial Perspective After Two Years of BAPCPA, 81 Am. Bankr. L.J. 195 (2007). Articles of note more specific to Chapter 13 after BAPCPA include: Jean Braucher, Rash and Ride-Through Redux: The Terms for Holding on to Cars, Homes, and Other Collateral Under the 2005 Act, 13 Am. Bankr. Inst. L. Rev. 457 (2005); David Gray Carlson, Means Testing: The Failed Bankruptcy Revolution of 2005, 15 Am. Bankr. Inst. L. Rev. 223 (2007); Thomas Evans & Paul B. Lewis, An Empirical Analysis of the 2005 Bankruptcy Reforms, 24 Emory Bankr. Dev. J. 327 (2008); Henry E. Hildebrand III, Impact of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 on Chapter 13 Trustees, 79 Am. Bankr. L.J. 817 (2005); Henry J. Sommer, Trying to Make Sense Out of Nonsense: Representing Consumers Under the “Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,” 79 Am. Bankr. L.J. 191 (2005); Hon. Eugene R. Wedoff, Major Consumer Bankruptcy Effects of BAPCPA, 2007 U. Ill. L. Rev. 31 (2007); Hon. Eugene Wedoff, Means Testing in the New § 707(b), 79 Am. Bankr. L.J. 231 (2005); Michelle J. White, Abuse or Protection? Economics of Bankruptcy Reform Under BAPCPA, 2007 U. Ill. L. Rev. 275 (2007).
You will need several versions of the Bankruptcy Code to do effective research and writing about Chapter 13 after BAPCPA. Current editions of the Bankruptcy Code4 are available from major bankruptcy publishers—Thomson Reuters,5 Reed Elsevier6 and Awhfy Publishing.7
To appreciate the mess Congress made of the Bankruptcy Code in general and of Chapter 13 in particular in 2005, you need a second version of the law—a “redlined edition” of the (former) Bankruptcy Code with the BAPCPA changes shown as strikeouts and insertions. Redlined versions of the Code as amended by BAPCPA are available for sale from the publishers mentioned above. A redline version of Chapter 13 with the BAPCPA changes is in Appendix EE.
Sooner or later you will need a third form of BAPCPA, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 itself—S. 256 as passed by the Senate on March 10, 2005, 109th Congress, 1st Session. You need the raw bill because codifying this undisciplined statute was unusually difficult. Not all codifiers agree on exactly where or how to place some of the provisions of S. 256, and there are “uncodified” provisions that are significant.8 S. 256 is available in its enacted form through the Government Printing Office.9
There will be times when you want both the redlined Code and a copy of S. 256. Sometimes the context of a provision within the original legislation helps explain the meaning of a new or changed section. For example, there are many new provisions scattered by BAPCPA throughout the Bankruptcy Code dealing with “domestic support obligations.”10 Knowing that many of these provisions were enacted as part of subtitle (b) of Title II of S. 256—dealing with “priority child support”—perhaps illuminates some of the odd places in which DSOs pop up after codification.
Next, you need to know there have been statutory changes to the Bankruptcy Code and to Chapter 13 in particular since the enactment of BAPCPA in 2005.11 There were “technical amendments” in 201012 that show up as italics or redlines in Codes published in 2011 and after. The “technical” amendments in 2010 included changes to the prepetition briefing in § 109(h)13 and cross-reference fixes in several sections of Chapter 13. The Bankruptcy Technical Amendments Act of 2010 is reproduced in Appendix S.
To understand the early decisions interpreting BAPCPA, you need to know that there were Interim Rules Amendments and Rules Additions and Interim Forms developed by the Advisory Committee on Bankruptcy Rules. In the Fall of 2005, Interim Rules and Interim Forms drafted by the Advisory Committee were forwarded to each judicial district for consideration and enactment as local rules.14 The Interim Rules and Forms added or amended 40 rules, including 10 completely new rules. Several new and changed forms were produced, especially to deal with the “abuse test” in 11 U.S.C. § 707(b). The Interim Rules and Forms developed by the Advisory Committee were adopted in one version or another in every judicial district and were used until new Big Rules and Official Forms became effective 2006–2008. The Interim Rules and Forms are reproduced in Appendices CC and DD.
Not every jurisdiction adopted Local Interim Rules and Forms exactly as found in Appendices CC and DD. There were local variations, and the Advisory Committee further revised the Interim Rules and Forms before formal adoption of new rules and forms by the Judicial Conference. Chances are that the Interim Rules and Forms found in Appendices CC and DD are close to those that were in use in your jurisdiction between October 2005 and 2008, but you are cautioned to verify the version adopted locally.
The Interim Rules and Forms were controversial in many respects. The [Local] Interim Rules and Forms were not vetted by the usual process for making rules, and the many variations that resulted were not blessed by the Judicial Conference of the United States. As demonstrated elsewhere,15 some of the Interim Rules and Forms that became Local Rules in nearly every district were inconsistent with or aggressively interpreted provisions of Chapter 13 as amended by BAPCPA. The less than fully legitimate character of these locally adopted Interim Rules and Forms complicated the early implementation of BAPCPA.
The first amended Bankruptcy Forms actually adopted by the Judicial Conference of the United States to reflect the statutory changes in BAPCPA became effective on October 1, 2006. Of particular importance to Chapter 13 practice, the hugely controversial Official Form B22C became official in this first wave of new forms. Official Form B22C as it was first adopted is found in Appendix T. This important form has been repeatedly amended, and these amended versions appear in Appendices U through X. When you are researching Chapter 13 cases from different time periods, making sense of the decisions sometimes turns on the version of the Forms in effect at the time.
The ongoing Forms Modernization Project at the Administrative Office of the United States Courts means that new “data enabled” forms are on the horizon for all bankruptcy applications. It is especially important that Chapter 13 practitioners regularly update their forms and rules library (and software) to stay aware of the changes.
Of special interest is the likelihood that there will soon be an official form for the Chapter 13 Plan—together with many new rules to make the form work. To see the latest draft of the pending National Form Plan and the tethered rules amendments, go to: http://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.
Anyone in Chapter 13 practice or doing Chapter 13 research will eventually run into the “IRS Standards” and the “IRS Manual.” Detailed elsewhere,16 these artifacts of the Treasury Department were incorporated into consumer bankruptcy practice by BAPCPA and are integral to important calculations in Chapter 13 cases for many debtors. The Standards and Manual are maintained by the Internal Revenue Service and are available for free at: http://www.irs.gov/Individuals/Collection-Financial-Standards and http://www.irs.gov/irm/.
You can buy bits and pieces or all of the IRS Manual on paper from various sources, but this is not recommended. The Treasury Department changes the Standards and modifies the Manual regularly and often and whenever it wants to—sometimes with and sometimes without forewarning.17 Users must just as regularly and often link to the IRS Web pages to see what is there today. And don’t assume what you find there is the same as yesterday just because you find it at the same URL—the IRS has a nasty habit of changing things by destructively loading new data on top of old.
Embedded within the IRS Standards and the IRS Manual and at several places in the Bankruptcy Code after BAPCPA, you will find references to “median family income” as determined by the U.S. Census Bureau. The primary source for Census Bureau data of any kind is, of course, the Census Bureau. You start capturing Census Bureau data at: https://www.census.gov/data.html.
A huge WARNING here: The U.S. Trustee Program pretends to simplify your work and research by supplying fake IRS and Census Bureau materials on the U.S. Trustee Program’s Web site.18 To its credit, the U.S. Trustee Program also provides links to the actual IRS Standards on the Treasury Department’s Web pages and to the actual Census Bureau data. But don’t be fooled. The U.S. Trustee Program’s versions of the IRS Standards and of Census Bureau data are not accurate, are not genuine and are not reliable substitutes for the IRS Standards promulgated by the Treasury Department or for the Census Bureau data available from the Census Bureau itself. BAPCPA did not authorize the Department of Justice through its U.S. Trustee Program to create or interpret IRS Standards, the IRS Manual or Census Bureau data. Don’t be lazy. Go to the primary sources and use the actual numbers found there.
To drill more deeply into BAPCPA, you will want the two-issue symposium published in the American Bankruptcy Law Journal. The ABLJ is the law review published by the National Conference of Bankruptcy Judges. In anticipation of the passage of BAPCPA, the editors of the ABLJ invited several dozen bankruptcy scholars to contribute articles on various aspects of the law. The 18 articles collected in this manner appear in two issues of the ABLJ.19 A subscription to the ABLJ is cheap and is available directly from the NCBJ.20
For those needing an immediate Chapter 13 fix, there is a reasonably detailed Section-by-Section Analysis of Chapter 13 after BAPCPA in Appendix AA.
There is another Section-by-Section Analysis of BAPCPA in the Report of the Committee on the Judiciary of the House of Representatives that accompanied S. 256.21 The section-by-section analysis in the House Report mostly just repeats the language of S. 256, with occasional commentary. As explained elsewhere,22 the legislative history of BAPCPA is debatable because of the absence of a conference report. The House Report will undoubtedly be cited as “legislative history” though its provenance is questionable. In Appendix AA, the House Report is deconstructed by section of Chapter 13 as amended by BAPCPA.
If you want a taste of the bigger picture, you might take a look at the Selected BAPCPA Changes Affecting Consumer Bankruptcy Practice in Appendix BB. This bullet-point “flyover” will give you a taste of the widespread damage done to the fabric of consumer bankruptcy law by BAPCPA. The materials in Appendix BB include brief discussions of many of the 2005 changes to the Bankruptcy Code that affect consumer debtors—such as new exceptions to the automatic stay, changes to exemptions and new debtor duties.
The 1,300-page final report of the National Bankruptcy Review Commission is a fantastic resource for bankruptcy research in general, and some will claim that the report is appropriately included in the legislative history of BAPCPA.23 The NBRC Report contains scholarly discussion of almost every aspect of bankruptcy law. The dissenting portions of that report are a road map to some of the provisions that eventually ended up in BAPCPA.24
And then there is Professor David Epstein’s Bankruptcy and Related Law in a Nutshell.25 David managed somehow to completely revise the Nutshell to reflect BAPCPA within hardly 90 days of its passage. The current edition of the Nutshell captures BAPCPA well, in a nutshell. It is a useful quick reference tool for bankruptcy practitioners even after they stop being law students.
1 Pub. L. No. 109-8, 119 Stat. 23 (2005).
3 See § 3.1 Understanding Chapter 13 after BAPCPA, § 3.2 One: Those Who Can Pay Should Pay, § 3.3 Two: Don’t Trust Debtors, § 3.4 Three: Don’t Trust Judges, § 3.5 Four: Don’t Trust Lawyers, § 3.6 Five: Make the Door Smaller, § 3.7 Six: The Rich Fare Better Than the Poor, § 3.8 Seven: Unsecured Creditors Don’t Count, § 3.9 Eight: Debtors Must Beg for Relief, § 3.10 Nine: Malice or Incompetence?, § 3.11 Ten: The Prior Law Is Still There and § 3.12 Conclusion: The Job Ahead.
4 Chapter 13 in its current form is in App. B.
5 Thomson Reuters, 3 Times Square, New York, NY 10036, (636) 223-4000; http://thomsonreuters.com/legal/united-states/.
6 Reed Elsevier, 125 Park Avenue, 23d Floor, New York, NY 10017; (212) 309-8100; http://www.reedelsevier.com/OurBusiness/Legal/Pages/Home.aspx.
7 Awhfy Publishing, 545 E. Cimarron, Colorado Springs, CO 80903; (877) 412-2633; http://www.awhfy.com/.
8 See, e.g., § 1228 of S. 256, which contains an uncodified exception to discharge in Chapter 7 cases when “requested tax documents” have not been provided to the bankruptcy court. Section 1228(b) also prohibits a bankruptcy court from confirming a Chapter 11 or Chapter 13 plan “unless requested tax documents have been filed with the court.” Because § 1228 of S. 256 did not amend any existing section of the Bankruptcy Code, this section remains “uncodified” and is found, if at all, only in the notes to some versions of the Code.
10 See, e.g., 11 U.S.C. § 101(14A).
12 Pub. L. No. 111-327, 124 Stat. 3557 (Dec. 22, 2010). See App. S.
14 The Advisory Committee wisely seized the opportunity presented by the eight-year run-up to the passage of BAPCPA to get a head start drafting Interim Rules and Forms.
15 See, e.g., discussion of Official Form B22C at § 36.19 Form 122C-1: Statement of Current Monthly Income, § 36.20 Form 122C-1: Commitment Period Calculation and § 36.21 Form 122C-2: Disposable Income Calculation.
17 See, e.g., § 95.2 National Standards for discussion of Treasury Department changes to National Standards.
19 Included in the ABLJ symposium issues on BAPCPA are articles on the legislative history of the new law by Susan Jensen, a congressional staffer involved in the process. Exemptions under the new law are discussed by Professor Margaret Howard. Gene Wedoff discussed the “abuse” test and related dismissal issues. Henry E. Hildebrand III contributed an article on the changes to Chapter 13. Constitutional issues posed by BAPCPA are discussed by Professor Erwin Chemerinsky. There are other articles discussing debtor education, “means testing,” the business aspects of BAPCPA and cross-border insolvency under new Chapter 15.
20 Go to http://www.ncbj.org or write to National Conference of Bankruptcy Judges, 954 La Mirada Street, Laguna Beach, CA 92651. With the exception of subscriptions for new lawyers and full-time professors, all new and renewal subscriptions are $75/annum. The subscription rate for new lawyers (less than two years in practice) is $45/annum. The subscription rate for full-time professors is $40/annum.
21 See H.R. Rep. No. 109-31 (2005).
23 The National Bankruptcy Review Commission Final Report of October 20, 1997, can be found at: National Bankruptcy Review Commission Final Report, Bankruptcy: The Next Twenty Years (Oct. 20, 1997), http://govinfo.library.unt.edu/nbrc/reportcont.html.
24 There is further discussion of the NBRC in § 2.2 Brief History, Including “Legislative History,” of BAPCPA.
25 David G. Epstein, Bankruptcy and Related Law in a Nutshell (8th ed. 2012).