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The Dreaded Means Test in Chapter 7 Bankruptcy

The Means Test is the fierce hurdle Chapter 7 bankruptcy filers have to clear to avoid having the Court dismiss or convert their cases. Sound important? It is.When Congress reformed the bankruptcy law it felt that too many people were filing Chapter 7 liquidations, who could otherwise repay their creditors. To understand the complex rules of the Means Test it helps if you keep the lawmaker’s objective in the back of your mind.

JohnMenszer-0732What is income? Income is the current monthly income of the debtor as based historically on the last six months before filing. It includes all sources of income with the exception of social security benefits and tax refunds. It includes gross wages, pensions, sole proprietor income, dividends, unemployment benefits, payments made on behalf of the debtor by others and child support actually received.

If the Debtor’s income is below the median household income for his state and the size of his family, then there is no need to fill out the rest of the Means Test. You can stop there. The presumption of abuse does not apply. It is OK to file a Chapter 7.

What are expenses? While the income calculation is based on the personal circumstances of the debtor, the expense calculation begins with figures published by the IRS, which are national standards. The IRS has determined allowances for food, clothing, housing expenses, transportation and medical expenses based on family size for different areas of the country. These national standards are adjusted for remaining debt payments on houses and vehicles, payroll taxes, education expenses for minors (but only within strict limits), court ordered support payments, mandatory retirement payments, necessary and provable healthcare payments that exceed the national standards and past-due priority claims, like taxes and child support.

What is the amount proportional to the debtor’s total unsecured debt? In determining abuse Congress looked to how much a debtor could repay every month and also to what percentage of his total unsecured debt he could repay in the maximum of 60 months of a Chapter 13 bankruptcy. Then Congress indexed these figures for inflation.*

As of the writing of this blog*, if a debtor’s Means Tested income minus expenses is less than $130.37 per month, there is no abuse and the debtor can go on and file a Chapter 7. If a debtor’s Means Tested income minus expenses is greater than $207.92 per month, there is always a presumption of abuse and the debtor should consider filing a Chapter 13 or not at all, unless there are special circumstances like the Debtor took a lower paying job during the 6 months prior to filing. If the debtor’s Means Tested income minus expenses falls between these figures, then it is necessary to look to the total of the unsecured debts. If the Means Tested net income shows the debtor can repay more than 25% of these debts in 60 months then abuse will be presumed and the debtor had better consider filing a Chapter 13 or not at all. If the ratio of monthly net income times 60 months to unsecured debts is 25% or less of the debts, then Congress deemed this to be a negligible amount and it is OK to file a Chapter 7.

The Means Test is dreaded not only because it prevents certain people from filing a Chapter 7 bankruptcy, but because it is such a darned hard test to take.