Cite as: Keith M. Lundin, Lundin On Chapter 13, § 42.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
BAPCPA imposes many new duties on Chapter 13 debtors, including many new and changed filing requirements. Many of these new documents and new duties ended up in § 521 of the amended Code; others were scattered to various chapters and sections, not always with any obvious logic.
The more important new or changed documents necessary to commence and maintain a Chapter 13 case are listed below with cross-references to the sections in which they are discussed. The more important new debtor duties are also listed with cross-references.
It is hoped that this list will help debtors’ counsel avoid major mistakes during the early going of a Chapter 13 case in the new environment of BAPCPA. Don’t be confused: what is listed here are only the new or changed filing requirements and new duties imposed by BAPCPA. Most of the former law with its many debtor duties and filing requirements was not changed by BAPCPA and remains applicable.1
Section 342(b) certificate.2 Section 521(a)(1)(B)(iii) requires debtor’s counsel or a bankruptcy petition preparer to file a certificate that the debtor has received the notice required by § 342(b).
Prepetition briefing and certificate.3 Section 521(b)(1) and Interim Rule 1007(b)(3) require Chapter 13 debtors to file a certificate from an approved nonprofit budget and credit counseling agency demonstrating that the debtor received the prepetition briefing required by § 109(h). This new filing requirement includes a copy of any debt repayment plan developed through the briefing process. Exhibit D to Official Form 1 (October 2006) is not the certificate required by § 521(b)(1) but addresses the prepetition briefing requirement in § 109(h).4
List of creditors.5 Because “effective notice” was redefined by BAPCPA in § 342, debtors must file a more robust list of the names and addresses of creditors. Also, new noticing responsibilities imposed by BAPCPA on Chapter 13 trustees6 mean that debtors must supply new information about the holders of domestic support obligations.
Payment advices.7 Section 521(a)(1)(B)(iv) and Interim Rule 1007(b)(1)(E) require Chapter 13 debtors to file copies of payment advices or other evidence of payment received from an employer within 60 days of the petition.
Statement of monthly net income.8 Section 521(a)(1)(B)(v) requires the debtor to file a statement of monthly net income, itemized to show how that amount was calculated. The forms drafters addressed this new filing requirement by additions to Schedule J to Official Form 6.
Statement of anticipated increase in income or expenditures.9 Section 521(a)(1)(B)(vi) requires the debtor to file a statement of any reasonably anticipated increase in income or expenditures over the 12-month period following the filing of the petition. This new statutory duty is satisfied by new line items on Schedules I and J to Official Form 6.
Statement of current monthly income.10 The important new term of art “current monthly income”11 (CMI) is used throughout the Bankruptcy Code as the computational platform for important tests that apply to Chapter 13 debtors. No provision of BAPCPA requires the filing of a statement of CMI. Interim Rule 1007(b)(6) instructs all Chapter 13 debtors to file a statement of CMI prepared as prescribed in new Official Form B22C.
Disposable income calculation.12 Interim Rule 1007(b)(6) requires any Chapter 13 debtor with CMI greater than applicable median family income to provide a calculation of disposable income consistent with § 1325(b)(3).13 This complex calculation incorporates some of the abuse test from § 707(b)(2)(A) and (B). Over-median-income Chapter 13 debtors perform the calculation by completing Parts IV–VI of Official Form B22C.
Record of education IRA.14 Section 521(c) and Interim Rule 1007(b)(1)(F) require the filing of a record of any interest of the debtor in an education individual retirement account or qualified state tuition program.
Certification and rent deposit.15 Consistent with § 362(b)(22) and (l), if the debtor has suffered a prepetition judgment for possession of residential property and an eviction or unlawful detainer action is pending, the debtor must file with the petition a certification and make an appropriate deposit of rent with the bankruptcy court else there will be no automatic stay to stop completion of the eviction process.
Annual income and expense statement.18 On request of the court, the U.S. trustee or any party in interest, a Chapter 13 debtor must file annual statements of income, expenditures and monthly income both before and after confirmation of a plan under § 521(f)(4).
Proof of identity.19 On request of the U.S. trustee or the Chapter 13 trustee, the debtor must provide a photo I.D. or other personal identifying information that establishes the identity of the debtor under § 521(h). Interim Rule 4002(b)(1) imposes a separate picture I.D. requirement that includes evidence of a social security number to be provided at the meeting of creditors.
Attend meeting of creditors, unless . . . .20 Although perhaps not targeted at Chapter 13 cases, BAPCPA amended § 341(e) to excuse the convening of a meeting of creditors under certain circumstances.
Duty to provide documentation.21 Interim Rule 4002(b) imposes draconian new duties on Chapter 13 debtors to provide financial information at the meeting of creditors, including banking records and (more) tax returns. There are new statements under penalty of perjury with respect to the debtor’s financial records and tax returns.
Preconfirmation payments.24 Section 1326(a), as amended by BAPCPA, requires the Chapter 13 debtor to make payments before confirmation on account of any lease of personal property and to provide adequate protection to creditors with allowed claims secured by personal property. To whom these payments will be made and in what amounts are important new preconfirmation issues in Chapter 13 cases.
Proof of insurance.25 Section 1326(a)(4), as amended by BAPCPA, allows a Chapter 13 debtor 60 days after the petition in which to provide a lessor or secured creditor reasonable evidence of any required insurance coverage.
Instructional course certificate.26 The debtor must complete an instructional course concerning personal financial management in order to receive a discharge in a Chapter 13 case.27 Interim Rule 1007(b)(7) and (c) require the debtor to file a statement of completion of such a course no later than the last payment by the debtor required by the plan. Official Form 23 was created for this purpose.
Domestic support obligations.28 The payment of domestic support obligations was a priority in BAPCPA. The Chapter 13 debtor who fails to stay current on postpetition domestic support obligations will not accomplish confirmation of a plan,29 will not receive a discharge30 and will face mandatory dismissal at any point during the case when a delinquency develops.31
1 See Parts 2 and 3.
2 See § 375.1 [ Certificate of § 342(b) Notice ] § 36.33 Certificate of § 342(b) Notice after BAPCPA.
4 See § 373.1 [ Briefing Requirement and Certificate ] § 36.25 Briefing Requirement and Certificate.
5 See §§ 34.3 [ List of Creditors and Addresses ] § 36.4 List of Creditors and Addresses, 374.1 [ List of Creditors—DSOs and § 342 Considerations ] § 36.5 List of Creditors—DSOs and § 342 Considerations and 417.1 [ New Noticing Responsibilities ] § 53.16 Noticing Responsibilities.
6 See 11 U.S.C. § 1302(b)(6) and (d), discussed in § 417.1 [ New Noticing Responsibilities ] § 53.16 Noticing Responsibilities.
7 See § 376.1 [ Payment Advices ] § 42.3 Payment Advices.
8 See § 377.1 [ Statement of Monthly Net Income ] § 36.17 Statement of Monthly Net Income.
9 See § 378.1 [ Statement of Anticipated Increase in Income or Expenditures ] § 36.18 Statement of Anticipated Increase in Income or Expenditures.
10 See § 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19 Form 122C-1: Statement of Current Monthly Income.
11 See 11 U.S.C. § 101(10A), discussed in §§ 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19 Form 122C-1: Statement of Current Monthly Income and 468.1 [ Current Monthly Income: The Baseline ] § 92.3 Current Monthly Income: The Baseline.
12 See § 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.
13 See §§ 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation and 467.1 [ Projected Disposable Income: All Debtors ] § 92.2 Projected Disposable Income: All Debtors.
14 See § 381.1 [ Record of Education Individual Retirement Account ] § 36.34 Record of Education Individual Retirement Account.
15 See § 382.1 [ Certification and Rent Deposit ] § 36.35 Certification About Eviction Judgment and Rent Deposit.
16 See § 389.1 [ New Tax Return Duties—In General ] § 42.4 Tax Return Duties—In General.
17 See 11 U.S.C. §§ 521(e)(2), 521(f), 521(j), 1307(e) and 1308, and Interim Bankr. R. 4002(b), discussed in § 42.4 Tax Return Duties—In General, § 42.5 Tax Return Duties Seven Days before First Scheduled Meeting of Creditors, § 42.6 Tax Return Duties One Day before First Scheduled Meeting of Creditors, § 42.7 Tax Return Duties—On Request, § 42.8 Consequences of Failure to File or Provide Tax Returns and § 43.2 Debtor Duties at Meeting of Creditors after BAPCPA.
18 See § 395.1 [ Annual Income and Expense Statement—On Request ] § 42.10 Annual Income and Expense Statement—On Request.
19 See § 400.1 [ New Debtor Duties at the Meeting of Creditors ] § 43.2 Debtor Duties at Meeting of Creditors after BAPCPA.
20 See § 397.1 [ Option Not to Convene Meeting of Creditors? ] § 43.6 Option Not to Convene Meeting of Creditors?.
21 See § 400.1 [ New Debtor Duties at the Meeting of Creditors ] § 43.2 Debtor Duties at Meeting of Creditors after BAPCPA.
22 See § 396.1 [ Audits by U.S. Trustee ] § 42.11 Audits by U.S. Trustee.
23 See 28 U.S.C. § 586(f), discussed in § 396.1 [ Audits by U.S. Trustee ] § 42.11 Audits by U.S. Trustee.
24 See §§ 401.1 [ Preconfirmation Payments ] § 44.6 Preconfirmation Payments after BAPCPA and 402.1 [ Disposition of Preconfirmation Payments ] § 44.7 Disposition of Preconfirmation Payments after BAPCPA.
25 See § 404.1 [ Adequate Protection before Confirmation ] § 47.2 Preconfirmation Adequate Protection after BAPCPA.
26 See § 546.1 [ Instructional Course Requirement ] § 156.5 Instructional Course Requirement.
27 See 11 U.S.C. § 1328(g)(1), discussed in § 546.1 [ Instructional Course Requirement ] § 156.5 Instructional Course Requirement.
28 See §§ 428.1 [ Domestic Support Obligations: Preconfirmation Rights ] § 57.5 Domestic Support Obligations: Preconfirmation Rights after BAPCPA, 430.1 [ Domestic Support Obligation Exception ] § 58.6 Domestic Support Obligation Exception after BAPCPA, 498.1 [ Domestic Support Obligations Must Be Current ] § 113.3 Domestic Support Obligations Must Be Current, 540.1 [ New and Changed Grounds for Dismissal ] § 152.3 Cause for Dismissal Added or Changed by BAPCPA, 545.1 [ New Domestic Support Obligation Certification ] § 156.4 Domestic Support Obligation Certification and 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5 Domestic Support Obligations: § 523(a)(5).
29 See 11 U.S.C. § 1325(a)(8), discussed in § 498.1 [ Domestic Support Obligations Must Be Current ] § 113.3 Domestic Support Obligations Must Be Current.
30 See 11 U.S.C. § 1328(a), discussed in § 545.1 [ New Domestic Support Obligation Certification ] § 156.4 Domestic Support Obligation Certification.
31 See 11 U.S.C. § 1307(c)(11), discussed in § 540.1 [ New and Changed Grounds for Dismissal ] § 152.3 Cause for Dismissal Added or Changed by BAPCPA.