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Bankruptcy Basics: 2015 Advisory Committee Note on Form 108

Official Form 108, Statement of Intention for Individuals Filing Under Chapter 7, is revised in its entirety as part of the Forms Modernization Project, making it easier to read and, as a result, likely to generate more complete and accurate responses. In addition, the form is renumbered, and stylistic changes are made throughout the form.

Bankruptcy Basics: 2008 Advisory Committee Note on Form 8

The form is amended to conform to § 362(h), which was added to the Code, and § 521(a)(2), which was amended, by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005), by expanding the questions directed to the debtor regarding leased personal property and property subject to security interests. The form is also amended and reformatted to require the debtor to complete a series of statements describing the property and setting out what actions the debtor intends to take for each listed asset.

Bankruptcy Basics: 2005 Advisory Committee Note on Form 8

The form is amended to conform to section 521(a)(6), which was added to the Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005), by adding a section covering personal property subject to an unexpired lease and an option labeled “lease will be assumed pursuant to 11 U.S.C. § 362(h)(1)(A)” to the choices a debtor may make. The certification by a non-attorney bankruptcy petition preparer in the form is renamed a “declaration” and is amended to include material mandated by the 2005 amendments to § 110 of the Code.

Bankruptcy Basics: About the Form

In order to provide information about the presumption of abuse in chapter 7 and the debtor’s disposable income in chapter 13, the debtor must file the appropriate versions of Official Form 122. Fed. R. Bankr. P. 1007(b)(4).

Form 122A (formerly Form 22A) is now split into three forms:

Bankruptcy Basics: Annotations to Completed Sample Form 122A-1

1. In order to provide information about the presumption of abuse in chapter 7 and the debtor’s disposable income in chapter 13, the debtor must file the appropriate versions of Official Form 122. Fed. R. Bankr. P. 1007(b)(4). Official Forms 122A-1 and 122A-2 are used in chapter 7 cases and Official Forms 122C-1 and 122C-2 are used in chapter 13 cases. Debtors who do not have primarily consumer debts or who otherwise contend that they are exempt from means testing should prepare the separate supplement, Official Form 122A-1Supp, and file it with Official Form 122A-1.

Bankruptcy Basics: Official Form 122A Instructions

Note that this form was updated in April of 2020. The instructions below pertain to the prior version of this form.

Chapter 7 Statement of Your Current Monthly Income and Means Test Calculation (Official Forms 122A–1,122A-1Supp, and 122A–2)

If you are filing under chapter 11, 12, or 13, do not fill out this form.

Bankruptcy Basics: 2020-04 Advisory Committee Note on Form 122

Official Forms 122A-1, 122B, and 122C-1 are amended in response to the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), Pub. L. No. 116-136, 134 Stat. 281. That law modifies the definition of “current monthly income” in §101(10A) and the definition of “disposable income” in §1325(b)(2) to exclude “payments made under the Federal law relating to the national emergency declared by the President under the National Emergencies Act (50 U.S.C.

Bankruptcy Basics: 2015 Advisory Committee Note on Form 122

Official Forms 122A-1, 122A-1Supp, 122A-2, 122B, 122C-1, and 122C-2 are updated to comport with the form numbering style developed as part of the Forms Modernization Project. The forms are derived from Official Forms 22A-1, 22A-1Supp, 22A-2, 22B, 122C-1, and 22C-2.

Bankruptcy Basics: 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.

Bankruptcy Basics: 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.

Bankruptcy Basics: 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.

Bankruptcy Basics: 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.

Bankruptcy Basics: B. Calculation of CMI

Although Chapters 7, 11, and 13 use CMI for different purposes, the basic computation is the same in each. As defined in § 101(10A), CMI is the monthly average of certain income that the debtor (and in a joint case, the debtor’s spouse) received in the six calendar months before the bankruptcy filing.

Bankruptcy Basics: C. The means test deductions from current monthly income

The means test operates by deducting from CMI defined allowances for living expenses and payment of secured and priority debt, leaving disposable income presumptively available to pay unsecured non-priority debt. These deductions from CMI are set out in the Code at § 707(b)(2)(A)(ii)–(iv). The forms for Chapter 7 and Chapter 13 have similar sections (Parts V and IV, respectively) for calculating these deductions. The calculations are divided into subparts reflecting three different kinds of allowed deductions.

1. Deductions under IRS standards

Bankruptcy Basics: About the Form

In every case a disclosure of fees paid to the debtor’s attorney must be filed. 11 U.S.C. § 329; Fed. R. Bankr. P. 2016(b). Director’s Form B 2030, though not an Official Form, has been promulgated by the Administrative Office of the United States Courts to fulfill this requirement. The purpose of this form is to allow the court and the United States trustee, who also must receive a copy, to monitor fees and to make sure they are reasonable.

Bankruptcy Basics: Annotations to Completed Sample Form 2030

1. In every case a disclosure of fees paid to the debtor’s attorney must be filed. 11 U.S.C. § 329; Fed. R. Bankr. P. 2016(b). Director’s Form B 2030, though not an Official Form, has been promulgated by the Administrative Office of the United States Courts to fulfill this requirement. The purpose of this form is to allow the court and the United States trustee, who also must receive a copy, to monitor fees and to make sure they are reasonable.

Bankruptcy Basics: Retainer Agreement

The attorney should provide the debtor with a plain-English written retainer agreement in every case, setting forth the duties and obligations of the attorney and the client, no later than the time when the initial fee payment is made or, if the petition is filed before payment of a fee, prior to the petition being filed. The agreement should clearly state the attorney’s fees and terms of payment, as well as, in general terms, the scope of services that are covered and not covered by the fees stated.

Bankruptcy Basics: Preparing the Schedules and Statements

An attorney preparing the schedules and statements required in a consumer bankruptcy case must set forth the required information in a way that is as clear and accurate as possible given the practical limitations on the information that can be gathered. These limitations arise from a lack of all the relevant contracts and other documents, debtors’ inability to give precise information with respect to many facts, the costs of obtaining precise information, and the general uncertainties and instabilities in debtors’ financial situations.