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Consumer Bankruptcy Law and Practice: Questionnaire Formats Available

This questionnaire is found at the online version of this appendix as a PDF file. In addition, the online version of this treatise under “Practice Tools” contains the questionnaire in Microsoft Word format both in English and Spanish. Use the PDF file if you wish to reprint the questionnaire in English, and the Word format if you want to edit the document using your word-processing program or to print or edit the Spanish version.

Consumer Bankruptcy Law and Practice: Introduction

Bankruptcy is a right provided by law to people who are deeply in debt and in need of a fresh start. Bankruptcy will discharge many of your debts and you will not have to pay them, except that mortgages and other liens may still need to be paid if you want to keep the secured property.

The law allows you to keep some money and most types of necessary property in bankruptcy. To receive this protection, it is necessary that you list all items asked for in the following questions. If you do not list an item, that item will not be protected and may be sold in your bankruptcy case.

Consumer Bankruptcy Law and Practice: 17.1.1.1 Current Status of Chapter 12

Chapter 12 has provided an opportunity for reorganization for a limited category of family farmers for almost forty years. In 2005, this opportunity was expanded to include a limited category of family fisherman. This chapter discusses chapter 12 reorganization, focusing primarily on the original focus of chapter 12—family farmers. This focus, however, can be applied as well to family fisherman.

Consumer Bankruptcy Law and Practice: 2014 Advisory Committee Note on Form 22

Official Forms 22A-1, 22A-1Supp, 22A-2, 22C-1, and 22C-2 are new versions of the “means test” forms used by individuals in chapter 7 and 13, formerly Official Forms 22A and 22C. The original forms were substantially revised as part of the Forms Modernization Project. Official Form 22B, used by individuals in chapter 11, has also been revised as part of the project, which was designed so that the individuals completing the forms would do so more accurately and completely.

Consumer Bankruptcy Law and Practice: 2010 Advisory Committee Note on Forms 22A, 22B, and 22C

Form 22A, lines 19A, 19B, 20A, and 20B, and Form 22C, lines 24A, 24B, 25A, and 25B, are amended to delete the terms “household” and “household size” and to replace them with “number of persons” or “family size.” Under § 707(b)(2)(A)(ii)(I) means test deductions for food, clothing, and other items and for health care are permitted to be taken in the amounts specified in the IRS National Standards. The IRS National Standards are based on numbers of persons, not household size. Similarly, the IRS Local Standards are based on family, not household, size.

Consumer Bankruptcy Law and Practice: 2008 Advisory Committee Note on Forms 22A, 22B, and 22C

The chapter 7 form is amended to implement the temporary exclusion from means testing created by the National Guard and Reservists Debt Relief Act of 2008. That law amended § 707(b)(2)(D) for a period of three years by adding a new subsection (ii) to provide a temporary exclusion from the application of the means test for certain members of the National Guard and reserve components of the Armed Forces. The new temporary exclusion would last for the period that the qualifying debtor is on active duty or is performing a homeland defense activity, and for 540 days thereafter.

Consumer Bankruptcy Law and Practice: A. Overview

Among the changes introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was a set of interlocking provisions defining “current monthly income” and establishing a means test to determine whether relief under Chapter 7 should be presumed abusive. Current monthly income (“CMI”) is defined in § 101(10A) of the Code, and the means test is set out in § 707(b)(2). These provisions have a variety of applications.

Consumer Bankruptcy Law and Practice: 2017 Advisory Committee Note on Form 309

Official Forms 309G, (For Individual Debtors), Notice of Chapter 12 Bankruptcy Case, 309H, (For Corporations and Partnerships), Notice of Chapter 12 Bankruptcy Case, and 309I, Notice of Chapter 13 Bankruptcy Case, are each amended at Line 9 to remove references to “plan summaries” in conformance with amendments to Rule 3015(d) made in 2017.

Consumer Bankruptcy Law and Practice: 2011 Advisory Committee Note on Form 9

The form’s explanation of the “Meeting of Creditors” is amended to take account of the amendment of Rule 2003(e). When a meeting of creditors is adjourned to another date, the rule requires the official presiding at the meeting to file a statement specifying the date and time to which the meeting is adjourned. The explanation on all versions of the form is amended to reflect that requirement. Stylistic changes to the form are also made.

Consumer Bankruptcy Law and Practice: 2005–2007 Advisory Committee Note on Form 9

The form is amended in a variety of ways to implement the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005). All versions of the form are amended to advise creditors to consult an attorney concerning what rights they may have in the specific case.

Consumer Bankruptcy Law and Practice: 17.1.5 Timing a Chapter 12 Filing

The most obvious consideration in making a chapter 12 filing is to forestall a crisis event—for example, foreclosure, repossession—that will destroy the farming operation. The new credit counseling requirement applies to all individual debtors, so fulfilling this obligation must be built into prebankruptcy planning.80 Other factors may bear on the timing of a chapter 12 bankruptcy and should factor into the filing decision too. For example:

Consumer Bankruptcy Law and Practice: 17.2.1 Overview

Chapter 12 is only available to a “family farmer” or a “family fisherman” with “regular annual income.” Each of these terms is specifically defined in the Code. Not every farmer and not every fisherman has chapter 12 as an option.86

Consumer Bankruptcy Law and Practice: 17.2.2.1 Generally

All individuals are subject to the prepetition credit counseling requirement at section 109(h) in order to be eligible for bankruptcy.87 This eligibility requirement applies to individuals who are farmers, family farmers, or family fishermen and, it applies in chapter 12 cases.88 The credit counseling requirement does not apply, however, to corporations or partnerships that are otherwise eligible for chapter 12.89 However, individual family farm or famil

Consumer Bankruptcy Law and Practice: 17.2.2.3 The “Engaged in a Farming Operation” Requirement

A family farmer must be engaged in a “farming operation.”110 Similarly, a family fisherman must be “engaged in a commercial fishing operation.”111 As both are also defined according to the income they receive from farming/fishing and their debts from farming/fishing, the “engaged in farming” and “engaged in a commercial fishing operation” requirements will overlap extensively with the determination of whether income and debts relate to the operation.