§ 34.2 — In General—Effects of BAPCPA

Revised: July 3, 2007

[1]

Inconveniently located by BAPCPA throughout the Code are new duties, new documents and new filing requirements necessary for commencement of a Chapter 13 case. The eligibility requirement in § 109(h) that the debtor receive a briefing from an approved nonprofit budget and credit counseling agency within 180 days before filing the petition1 is coupled with a new certificate that must be filed under § 521(b)(1).2 Section 521 as amended by BAPCPA also contains new filing requirements with respect to the debtor’s income and expenses and payment advices.3 There are many new tax-return-filing responsibilities in BAPCPA, some found in § 521 and others in § 1308.4

[2]

An individual in default of a lease of residential property when there is an eviction or unlawful detainer action pending has new filing and deposit responsibilities at the commencement of a Chapter 13 case in § 362(b)(22) and (l).5 New noticing responsibilities imposed on Chapter 13 trustees by BAPCPA means that Chapter 13 debtors will have new duties to provide contact information for domestic support claimants.6 Filing fees to commence a Chapter 13 case were changed by BAPCPA and then changed again by subsequent legislation.7

[3]

There is a new statement of monthly net income8 and a new statement of current monthly income9—not at all the same things. There is a new filing with respect to a debtor’s interest in an educational IRA and new disclosures of potential fraudulent conveyances extending 10 years before the petition.10 The task of providing names and addresses of creditors for notice purposes has been complicated by new § 342.11 BAPCPA creates several important new timing considerations when there is the luxury of discretion with respect to when the Chapter 13 petition is filed.12

[4]

BAPCPA compelled many changes to Official Forms. In October 2005, the Advisory Committee on Bankruptcy Rules produced new Official Forms for use in Chapter 13 cases. Many of those changed forms were further revised in October 2006. Debtors’ counsel are cautioned that not all commercial forms and software filing packages contain the latest forms revisions.

[5]

BAPCPA has conspired with new versions of the software that bankruptcy courts use to increase intolerance of “in house” forms developed by attorneys for use in Chapter 13 cases. There are many new statistical reporting responsibilities imposed on bankruptcy courts by BAPCPA.13 To compile these reports, advanced versions of the Case Management and Electronic Case Filing software capture many new data points from the petitions, statements and schedules filed by Chapter 13 debtors. Although Bankruptcy Rule 9009 permits “appropriate” alterations and rearrangements of the Official Forms, one bankruptcy court recently rejected a custom Chapter 13 petition because it slowed down the administration of cases and burdened the clerk’s office.14


 

1  See § 373.1 [ Briefing Requirement and Certificate ] § 36.25  Briefing Requirement and Certificate.

 

2  See § 373.1 [ Briefing Requirement and Certificate ] § 36.25  Briefing Requirement and Certificate.

 

3  See §§ 376.1 [ Payment Advices ] § 42.3  Payment Advices378.1 [ Statement of Anticipated Increase in Income or Expenditures ] § 36.18  Statement of Anticipated Increase in Income or Expenditures.

 

4  See §§ 389.1 [ New Tax Return Duties—In General ] § 42.4  Tax Return Duties—In General393.1 [ Consequences of Failure to File or Provide Tax Returns ] § 42.8  Consequences of Failure to File or Provide Tax Returns.

 

5  See § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

6  See 11 U.S.C. § 1302, discussed in § 417.1 [ New Noticing Responsibilities ] § 53.16  Noticing Responsibilities.

 

7  See § 385.1 [ Filing Fees, Installments and Waiver ] § 37.6  Filing Fees, Installments and Waiver after BAPCPA.

 

8  See § 377.1 [ Statement of Monthly Net Income ] § 36.17  Statement of Monthly Net Income.

 

9  See § 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19  Form 122C-1: Statement of Current Monthly Income.

 

10  See § 383.1 [ Statement of Financial Affairs after BAPCPA ] § 36.23  Statement of Financial Affairs after BAPCPA.

 

11  See §§ 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen and 374.1 [ List of Creditors—DSOs and § 342 Considerations ] § 36.5  List of Creditors—DSOs and § 342 Considerations.

 

12  See § 386.1 [ Timing Considerations after BAPCPA ] § 37.3  Timing Considerations after BAPCPA.

 

13  See 28 U.S.C. § 159.

 

14  In re Orrison, 343 B.R. 906, 908–09 (Bankr. N.D. Ind. 2006) (Custom form for Chapter 13 petition is rejected because it confuses the clerk’s office. Debtor’s attorney condensed the Official Form from three pages to two and rearranged its contents while providing all of the required information. Court ordered debtors to file amended petition. Counsel responded that the custom form satisfied Bankruptcy Rule 9009. “Although counsel’s in-house version of the petition contains all the information required by the official form, because of the changes counsel has made that information cannot be located and cannot be reviewed as easily and as efficiently as it is on the official form. . . . These changes increase the amount of time the clerk’s office must devote to reviewing counsel’s unique version of the petition by forcing case administrators to hunt for the information they need instead of being able to quickly find it in the expected place. This slows down the administration of cases and places an unnecessary burden on the clerk’s office. . . . Although Rule 9009 allows alterations to the official forms, that does not give parties a free pass to make whatever changes they want whenever they want to do so.”).