[
Rule 9009 of the Federal Rules of Bankruptcy Procedure states that the Official Forms prescribed by the Judicial Conference of the United States “shall be observed and used.” The Official Forms, accordingly, are obligatory in character.
Rule 9009 expressly permits the user of the Official Forms to make such “alterations as may be appropriate,” and the use of the Official Forms has been held to be subject to a “rule of substantial compliance.” Some rules, for example Fed.R.Bankr.P. 3001(a), specifically state that the filed document need only “conform substantially” to the Official Form. A document for which an Official Form is prescribed generally will meet the standard of substantial compliance if the document contains the complete substance, that is, all of the information required by the Official Form.
Rule 9009 also expressly permits the contents of Official Forms to be rearranged, and the format of the Official Forms traditionally has been quite flexible. The forms of the voluntary petition, the schedules, and the statement of financial affairs are printed and sold by private publishers. Design features such as type face, type size, layout, and side and top margins were not prescribed by the Judicial Conference, but rather left to the professional judgment of each publisher.
A great deal of variation, accordingly, has developed. Some publishers also add forms that are not official but which have been drafted by the publisher. A form for a chapter 13 plan, for example, frequently is included with commercially printed packages of forms for filing cases under chapter 13, although there is no Official Form for this purpose. The variety of formats has accelerated since the introduction of computer software for generating the petitions, schedules, and statements of affairs. It is the policy of the Judicial Conference that such diversity is desirable and should be encouraged.
The sheer volume of bankruptcy cases, however, has compelled the Judicial Conference, for the first time, to prescribe the format of certain Official Forms. In particular, the format of Form 1, the Voluntary Petition, now is prescribed. This format is designed to assist the clerk of the bankruptcy court to enter the case in the court's computer database and ensures that all required information is available to both the clerk and the United States trustee at the inception of the case. The rule of substantial compliance continues to apply, however. Accordingly, publishers may vary the size and style of the type and may alter the size and shape of the boxes on the form, within the bounds of that rule.
The Official Forms of the petitions, schedules, and statement of financial affairs, (Forms 1, 5, 6, and 7), are to be printed on one side of the paper only. Each page is to be prepunched with two holes at the top, and sufficient top margin allowed so that neither caption nor text is destroyed or obscured. Compliance with these standards will facilitate both the securing of the papers in the case file and review of the file by the public.
Although Rule 9009 permits alteration, for most of the Official Forms, alteration will be appropriate only in rare circumstances. The special forms for chapter 11 cases, on the other hand, seldom will be used without alterations. Forms 12 through 15, while legally sufficient in any chapter 11 case, are intended by the Judicial Conference, and most often will be used, as a framework for drafting a document specially tailored to the particular case. These alterations generally will take the form of additions to the prescribed elements.
Rule 9009 provides for a balance of prescribed substance, to which full adherence is expected in all but the most unusual cases, and flexible formatting, under which requirements are kept to the minimum necessary for proper operation of the courts and the bankruptcy system. While Rule 9009 recognizes the overall need for flexibility, Rule 9029 makes it clear that the Official Forms must be accepted in every bankruptcy court.
Under Rule 9029, courts may not reject documents presented for filing in novel or unfamiliar formats if those documents contain the substance prescribed by the Official Form and meet the requirements for one-sided printing, pre-punched holes, and adequate top margins. Nor are courts authorized to impose local forms which vary in substance from the Official Forms or reject papers presented for filing on Official Forms on the basis that the proffered documents differ from a locally preferred version.
In Form 1, the Voluntary Petition, if a box contains multiple choices, a computer-generated petition that shows only the choice made is acceptable for filing. All sections of the petition must be shown and completed, however, unless instructions on the Official Form of the petition state that the box is applicable only to cases filed under a chapter other than the one selected by the debtor. If the debtor has no information to provide for a particular box, for example if the debtor has no prior bankruptcies to report, a computer-generated petition should so indicate by stating “None.”
Form 6, the Schedules, on which the debtor reports all of the debtor's assets and liabilities, has been prescribed in a columnar format. Columns help to organize the information which the debtor is required to report and should be used when the printed schedules are completed on a typewriter. In a computerized law office, however, the organizational structure of the schedules can be built into the computer program, and a rigid columnar format may be a hindrance rather than a help. Schedules generated by computer which provide all of the information requested by the prescribed form are fully acceptable, regardless of the format of the printed page. The information must be appropriately labeled, however. In Schedule B, for example, all of the categories of personal property must be printed on the filed document together with the debtor's response to each. The space occupied by each category may be expanded, however, so that attachments are not needed. Instructions provided on the printed forms can simply be built into the computer program; they need not be reprinted on the filed document.
Form 7, the Statement of Financial Affairs, contains a series of questions which direct the debtor to answer by furnishing information. If the answer to a question is “None,” or the question is not applicable, an affirmative statement to that effect is required. To assure that the trustee and the creditors can review the debtor's statement properly, the complete text of each question must be printed on the filed document.
Form 9, the Notice of Filing under the Bankruptcy Code, Meeting of Creditors, and Fixing of Dates, will be prepared by the clerk of the bankruptcy court in most cases. The form is designed for use with automated printing and mailing equipment. Two free lines, which do not appear on the printed blank form, have been programmed into the form. Courts may use this space to add local information, such as directions for obtaining copies of the debtor's schedules.
[Introduction and General Instructions provided by the Advisory Committee on Bankruptcy Rules of the Judicial Conference, June 28, 1990, H. Doc. 102–80, pp. 507, 534, 102d Congress, 1st Session.]
(Added Aug. 1, 1991; amended Mar. 16, 1993; Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2001; Dec. 1, 2002; Dec. 1, 2003; Oct. 17, 2005; Oct. 1, 2006; Jan. 1, 2008.)
Form 1, the Voluntary Petition, is to be used to commence a voluntary case under chapter 7, 11, 12, or 13 of the Bankruptcy Code. A chapter 9 petition requires other allegations, (see §109(c) of the Code), but this form may be adapted for such use. The form also may be adapted for use in filing a petition ancillary to a foreign proceeding under §304 of the Code.
The form departs from the traditional format of a captioned pleading. All of the elements of the caption prescribed in Rule 1005 have been retained. Their placement on the page, however, has been changed to make the form compatible with electronic data processing by the clerk. The form of the caption of the case for use in other documents, formerly incorporated in Official Form No. 1, has been made a separate Form 16A.
All names used by the debtor, including trade names, names used in doing business, married names, and maiden names should be furnished in the spaces provided. If there is not sufficient room for all such names on the form itself, the list should be continued on an additional sheet attached to the petition. A complete list will enable creditors to identify the debtor properly when they receive notices and orders.
Redesign of this form into a box format also is intended to provide the court, the United States trustee, and other interested parties with as much information as possible during the 15-day period provided by Rule 1007(c), when schedules and statements may not have been filed. The box format separates into categories the data provided by the debtor, and enables the form to be used by all voluntary debtors in all chapters.
For the first time, the form requires both a street address and any separate mailing address, as well as any separate addresses used by a joint debtor. Disclosure of prior bankruptcies is new to the petition but formerly was required in the statement of financial affairs; its inclusion in the petition is intended to alert the trustee to cases in which an objection to discharge pursuant to §727(a)(8) or (a)(9) or a motion to dismiss under §109(g) may be appropriate. The information about pending related cases, also new to the petition, signals the clerk to assign the case to the judge to whom any related case has been assigned.
Rule 1008 requires all petitions to be verified or contain an unsworn declaration as provided in 28 U.S.C. §1746. The unsworn declaration on page two of the petition conforms with 28 U.S.C. §1746, which permits the declaration to be made in the manner indicated with the same force and effect as a sworn statement. The form may be adapted for use outside the United States by adding the words “under the laws of the United States” after the word “perjury.”
Exhibit “A,” to be attached to the petition of a corporate debtor, is for the purpose of supplying the Securities and Exchange Commission with information it needs at the beginning stages of a chapter 11 case in order to determine how actively to monitor the proceedings. Exhibit “B” was added by §322 of Pub. L. No. 98–353, the Bankruptcy Amendments and Federal Judgeship Act of 1984. The references to chapters 11 and 12 of the Code found in Exhibit “B” and its related allegations were added by §283(aa) of the 1986 amendments, (Pub. L. No. 99–554). This exhibit has been included in the form of the petition.
The form effects a merger of the petition and the bankruptcy cover sheet to assist the clerk in providing the statistical information required by the Director of the Administrative Office of the United States Courts pursuant to the Congressional reporting mandates of 28 U.S.C. §604. The Director is authorized to change the particulars of the statistical portion of the form as needed in the performance of these statutory duties.
The form has been amended to require a debtor not represented by an attorney to provide a telephone number so that court personnel, the trustee, other parties in the case, and their attorneys can contact the debtor concerning matters in the case.
The form is amended to provide space for signing by a “bankruptcy petition preparer,” as required under section 110 of the Code, which was added by the Bankruptcy Reform Act of 1994. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested. All signatories of Form 1 are requested to provide the clerk's office with a telephone number.
A chapter 11 debtor that qualifies as a “small business” under section 101 of the Code, as amended by the 1994 Act, may elect special, expedited treatment under amendments made to chapter 11 by the 1994 Act. The court may order that a creditors committee not be appointed in a small business case. Accordingly, the first page of the petition is amended to require a small business filing under chapter 11 to identify itself. The petition also is amended to offer a small business chapter 11 debtor an opportunity to exercise its right to elect to be considered a small business at the commencement of the case.
Several clarifying and technical amendments also have been made to indicate that a debtor is to check only one box with respect to “Type of Debtor” and “Nature of Debt,” to clarify the intent that the individual signing on behalf of a corporation or partnership is authorized to file the petition, and to require a debtor to represent that it is eligible for relief under the chapter of title 11 specified in the petition.
The form has been substantially amended to simplify its format and make the form easier to complete correctly. The Latin phrase “In re” has been deleted as unnecessary. The amount of information requested in the boxes labeled “Type of Debtor” and “Nature of Debt” has been reduced, and the reporting by a corporation of whether it is a publicly held entity has been moved to Exhibit “A” of the petition. The box labeled “Representation by Attorney” has been deleted; the information it contained is requested in the signature boxes on the second page of the form.
In the statistical information section, the labels on the ranges of estimated assets and liabilities have been rewritten to improve the accuracy of reporting. The asset/liability range of $10 million to $100 million has been divided into two categories to promote better statistical reporting of business cases. Requests for information in chapter 11 and chapter 12 cases concerning the number of the debtor's employees and equity security holders have been deleted.
The second page of the form has been simplified so that a debtor need only sign the petition once. The request for information concerning the filing of a plan has been deleted.
Exhibit “A” has been simplified. In addition, the category of chapter 11 debtors required to file Exhibit “A” is modified to include a corporation, partnership, or other entity, but only if the debtor has issued publicly-traded equity securities or debt instruments. Most small corporations will not be required to file Exhibit “A.”
The form has been amended to require the debtor to disclose whether the debtor owns or has possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety. If any such property exists, the debtor must complete and attach Exhibit “C” describing the property, its location, and the potential danger it poses. Exhibit “C” will alert the United States trustee and any person selected as trustee that immediate precautionary action may be necessary.
The form has been amended to provide a checkbox for designating a clearing bank case filed under subchapter V of chapter 7 of the Code enacted by §112 of Pub. L. No. 106–554 (December 21, 2000).
The form is amended to require the debtor to disclose only the last four digits of the debtor's social security number to afford greater privacy to the individual debtor, whose bankruptcy case records may be available on the Internet. Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.
The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in §727(a)(8) of the Code as amended in 2005. The box indicating the debtor's selection of a chapter under which to file the case has been amended to delete “Sec. 304 - Case ancillary to foreign proceeding” and replace it with “Chapter 15 Petition for Recognition of a Foreign Main Proceeding” and “Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding” reflecting the 2005 repeal of §304 and enactment of chapter 15 of the Code. A statement of venue to be used in a chapter 15 case also has been added.
The section of the form labeled “Type of Debtor” has been revised and subtitled “Form of Organization.” This section is revised to make it clear that a limited liability corporation (“LLC”) and limited liability partnership (“LLP”) should identify itself as a “corporation.” A new section titled “Nature of Business” has been created that includes both existing check boxes that identify certain types of debtors for which the Bankruptcy Code provides special treatment, such as stockbrokers and railroads, and a new checkbox for a “health care business” for which the 2005 amendments to the Code include specific requirements. This section of the form also contains checkboxes for single asset real estate debtors and nonprofit organizations which will be used by trustees and creditors and by the Director of the Administrative Office of the United States Courts in preparing statistical reports and analyses. The statistical section of the form also is amended to provide more detail concerning the number of creditors in a case. A check box also has been added for a debtor to indicate that the debtor is applying for a waiver of the filing fee, to implement the 2005 enactment of 28 U.S.C. §1930(f) authorizing the bankruptcy court to waive the filing fee in certain circumstances.
Although the 2005 Act eliminated an eligible debtor's option to elect to be treated as a “small business” in a chapter 11 case, new provisions for such debtors added to the Code in 2005 make it desirable to identify eligible debtors at the outset of the case. Accordingly, the section of the form labeled “Chapter 11 Small Business” has been revised and renamed “Chapter 11 Debtors” for this purpose. Chapter 11 debtors that meet the definition of “small business debtor” in §101 of the Code are directed to identify themselves in this section of the form. In addition, chapter 11 debtors whose aggregate noncontingent debts owed to non-insiders or affiliates are less than $2 million are directed to identify themselves in this section.
A space is provided for individuals to certify that they have received budget and credit counseling prior to filing, as required by §109(h) which was added to the Code in 2005, or to request a waiver of the requirement. Space also is provided for a debtor who is a tenant of residential real property to state whether the debtor's landlord has a judgment against the debtor for possession of the premises, whether under applicable nonbankruptcy law the debtor would be permitted to cure the monetary default, and whether the debtor has made the appropriate deposit with the court. This addition to the form implements §362(l) which was added to the Code in 2005.
The signature sections and the declaration under penalty of perjury by an individual debtor concerning the notice received about bankruptcy relief, the declaration under penalty of perjury by a bankruptcy petition preparer, and the declaration and certification by an attorney all are amended to include new material mandated by the 2005 Act. A signature section also is provided for a representative of a foreign proceeding.
Page one of the form is amended in several ways to assist the courts in evaluating their workload and fulfilling the statistical reporting requirements of 28 U.S.C. §159. Section 159 was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109–8 and takes effect October 17, 2006. Accordingly, in the section of the form labeled “Nature of Business,” the instruction is amended to specify that only one box should be checked and only if the debtor is any of the entities listed. The “nonprofit” choice is separated into a discrete section and the language amended to the more precise “tax-exempt.”
In addition, the section labeled “Type of Debtor” is amended to include, below the checkbox for “Individual or Joint,” a direction to “See Exhibit D on page 2 of this form.” Exhibit D replaces the certification concerning prepetition credit counseling and is described below. The section labeled “Nature of Debts” is amended to state the statutory definition of a “consumer debt” and to modify both the consumer and business categories by adding the word “primarily” to both make it clearer to individual debtors that “business” may be the more appropriate choice if personal debts have been incurred to finance a business venture.
In the section labeled “Chapter 11 Debtors,” the language concerning whether the debtor owes less than $2 million is re-styled for clarity. This section also is augmented to provide the court with notice when a case if [sic] filed as a “pre-packaged” chapter 11 reorganization case. Two checkboxes are offered, using language adapted from §1126(b) of the Code. Lastly, the information requested concerning estimated assets and liabilities is abbreviated, with the number of ranges reduced and the scope of each range amended. Statistical reports now will be derived from actual dollar amounts of assets and liabilities as shown on the debtor's schedules. The information on the petition, accordingly, is for case management and public information purposes only.
Exhibit D replaces the section formerly labeled “Certification Concerning Debt Counseling by Individual/Joint Debtor(s).” Early cases decided under the 2005 amendments to the Bankruptcy Code indicate that individual debtors may not be aware of the requirement to obtain prepetition credit counseling, the few and very narrow exceptions to that requirement, or the potentially dire consequences to their efforts to obtain bankruptcy relief if they fail to complete the requirement. Accordingly, page 2 of the petition instructs individual debtors to attach a completed Exhibit D and makes it clear that each spouse in a joint case must complete and attach a separate Exhibit D. Exhibit D itself includes a warning about the requirement to obtain counseling and the consequences of failing to fulfill this requirement. It further provides checkboxes and instructions concerning the additional documents that are required in particular circumstances, in order to minimize the number of cases which the court must dismiss for ineligibility.
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005) (“BAPCPA”). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in §727(a)(8) of the Code as amended in 2005. In conformity with Rule 9037, the debtor is directed to provide only the last four digits of any individual's tax-identification number.
The box indicating the debtor's selection of a chapter under which to file the case is amended to delete “Sec. 304—Case ancillary to foreign proceeding” and replace it with “Chapter 15 Petition for Recognition of a Foreign Main Proceeding” and “Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding” reflecting the 2005 repeal of §304 and enactment of chapter 15 of the Code. A statement of venue to be used in a chapter 15 case also is added on page 2 of the form.
The section labeled “Type of Debtor” is amended to include, below the checkbox for “Individual or Joint,” a direction to “See Exhibit D on page 2 of this form.” This addition alerts individual debtors that Exhibit D on page 2 of the form applies to them. Exhibit D, more fully described below, addresses the prepetition credit counseling requirements added to the Code by BAPCPA. The subtitle, “Form of Organization,” is added, and this section also is revised to make clear that a limited liability corporation (“LLC”) or limited liability partnership (“LLP”) should identify itself as a “corporation.”
The form also is amended in several ways to assist the courts in evaluating their workload and fulfilling the statistical reporting requirements of 28 U.S.C. §159, enacted as part of BAPCPA. Accordingly, a new section of the form labeled “Nature of Business,” is added that contains both existing checkboxes that identify certain types of debtors for which the Bankruptcy Code provides special treatment, such as stockbrokers and railroads, and a new checkbox for a “health care business” for which the 2005 amendments to the Code include specific requirements. This section of the form also contains a checkbox for single asset real estate debtors, so they can be identified at the time of filing. All other businesses will mark the checkbox labeled “Other.” Another new section titled “Tax-Exempt Entity” contains a checkbox to be used by qualified organizations. The Judicial Conference of the United States and the Administrative Office of the United States Courts will use this information in preparing statistical reports and analyses for Congress.
A checkbox also is added for an individual debtor to indicate that the debtor is applying for a waiver of the filing fee, to implement the 2005 enactment of 28 U.S.C. §1930(f) authorizing the bankruptcy court to waive the filing fee in certain circumstances. The description directs the debtor to the Official Form for the application that must be filed for the court's consideration.
The section labeled “Nature of Debts” is amended to state the statutory definition of a “consumer debt” and to modify both the consumer and business categories by adding the word “primarily” to both choices to make it clearer to individual debtors that “business” may be the appropriate choice if personal debts have been incurred to finance a business venture.
Although the 2005 Act eliminated from the Code any option to elect to be treated as a “small business” in a chapter 11 case, new provisions for “small business” debtors added by BAPCPA make it desirable to identify eligible debtors at the outset of the case. Accordingly, the section of the form labeled “Chapter 11 Small Business” is revised and renamed “Chapter 11 Debtors” for this purpose. Chapter 11 debtors that meet the definition of “small business debtor” in §101 of the Code are directed to identify themselves in this section of the form. Chapter 11 debtors whose aggregate noncontingent debts owed to non-insiders or affiliates are less than $2,190,000 are directed to identify themselves in this section. A third part of this section attempts to identify chapter 11 cases that are filed as pre-packaged cases, using criteria taken from §1126(b) of the Code. Identifying “pre-packs” at filing will assist judges and court staff to manage these cases appropriately.
The statistical information concerning the number of creditors and estimated assets and liabilities is revised to provide more detail.
BAPCPA also added a new §109(h) to the Code. To implement this provision, a section labeled “Exhibit D” is inserted on page 2 of the form, and a separate Exhibit D is added. These additions will enable individual debtors to certify that they have received budget and credit counseling prior to filing, as required by §109(h), or request a temporary waiver of, or exemption from, the requirement, if they meet the statutory requirements for such relief. Exhibit D includes directions to attach required documentation or, if the debtor requests a temporary waiver or an exemption, a motion for a determination by the court. Exhibit D also states the requirement that all individual debtors must obtain a briefing from an approved credit counseling agency before filing a bankruptcy case, unless one of the very limited exceptions applies, and further states the consequences that may be faced by any debtor who fails to comply.
Space is provided on page 2 for a debtor who is a tenant of residential real property to certify whether the debtor's landlord has a judgment against the debtor for possession of the premises, whether under applicable nonbankruptcy law the debtor would be permitted to cure the monetary default, and whether the debtor has made the appropriate deposit with the court. This addition to the form implements §362(l) which was added to the Code in 2005. And a box is provided that allows the debtor to certify that s/he has served the landlord with the certification as required by §362(l)(1).
The signature sections and the declaration under penalty of perjury by an individual debtor concerning the notice received about bankruptcy relief, the declaration under penalty of perjury by a bankruptcy petition preparer, and the attorney signature box are amended to include new material mandated by the 2005 Act. The attorney signature box is also amended to remind the attorney that in a case in which §707(b)(4)(D) applies, that the signature constitutes a certification that the attorney has no knowledge after an inquiry that the information in the schedules filed with the petition is incorrect. A signature section is also provided for a representative of a foreign proceeding.
(Added Aug. 1, 1991.)
This form is derived from former Official Form No. 4.
Rule 1008 requires that all petitions, lists, schedules, statements, and amendments thereto be verified or contain an unsworn declaration conforming with 28 U.S.C. §1746. This form or adaptations of the form have been incorporated into the official forms of the petitions, schedules, and statement of financial affairs. See Official Forms 1, 5, 6, and 7. The form has been amended for use in connection with other papers required by these rules to be verified or contain an unsworn declaration.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2003; Oct. 17, 2005; Dec. 1, 2007.)
This form is derived from former Official Form No. 2.
A statement that the applicant is unable to pay the filing fee except in installments has been added as required by Rule 1006(b).
This form is a “document for filing” that may be prepared by a “bankruptcy petition preparer” as defined in 11 U.S.C. §110, which was added to the Code by the Bankruptcy Reform Act of 1994; accordingly, a signature line is provided for such preparer. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested. A signature line for a debtor's attorney also is added, as required by Rule 9011.
The form has been reorganized and the paragraphs numbered. The debtor's certification concerning payment for services in the case has been placed ahead of the statement of proposed terms for installment payment of court fees. Acknowledgement by the debtor of the potential consequences of failure to pay any installment when due has been added. (See 11 U.S.C. §707(a)(2).) The language of the form also has been changed to conform to Rule 1006 and to clarify that a debtor is not disqualified from paying the filing fee in installments because the debtor has paid money to a bankruptcy petition preparer.
Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document pursuant to §110(c) of the Code.
The form is amended to direct the debtor to state that, until the filing fee is paid in full, the debtor will not make any additional payment or transfer any additional property to an attorney or any other person for services in connection with the case. The declaration and certification by a non-attorney bankruptcy petition preparer in the form are amended to include material mandated by §110 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The certification by a non-attorney bankruptcy petition preparer is re-named a declaration and also is revised to include material mandated by §110 of the Code as amended in 2005. The order is amended to provide space for the court to set forth a payment schedule other than the one proposed by the debtor.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
The form is amended to direct the debtor to state that, until the filing fee is paid in full, the debtor will not make any additional payment or transfer any additional property to an attorney or any other person for services in connection with the case. The declaration and certification by a non-attorney bankruptcy petition preparer in the form are amended to include material mandated by §110 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The certification by a non-attorney bankruptcy petition preparer is re-named a declaration and also is revised to include material mandated by §110 of the Code as amended in 2005. The order is amended to provide space for the court to set forth a payment schedule other than the one proposed by the debtor.
(Added Oct. 17, 2005; amended Apr. 9, 2006; Dec. 1, 2007.)
This form is new. 28 U.S.C. §1930(f), enacted as part of the Bankruptcy Abuse [Prevention] and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), provides that “under procedures prescribed by the Judicial Conference of the United States, the district court or the bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line . . . applicable to a family of the size involved and is unable to pay that fee in installments.” To implement this provision, Interim Rule 1006 adds a new subdivision (c). Official Form 3B is the form referenced in that subdivision, and is to be used by individual chapter 7 debtors when applying for a waiver of the filing fee. A corresponding standard order also is included.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
This form is new. 28 U.S.C. §1930(f), enacted as part of the Bankruptcy Abuse and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), provides that “under procedures prescribed by the Judicial Conference of the United States, the district court or the bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line . . . applicable to a family of the size involved and is unable to pay that fee in installments.” To implement this provision, Fed. R. Bankr. P.1006 adds a new subdivision (c). Official Form 3B is the form referenced in that subdivision, and is to be used by individual chapter 7 debtors when applying for a waiver of the filing fee. A corresponding standard order also is included.
(Added Aug. 1, 1991; amended Mar. 16, 1993; Oct. 17, 2005; Dec. 1, 2007.)
This form is derived from former Official Form No. 9.
In conformity with Rule 1007(d) and in recognition of the notice function served by this list under Rule 4001, governmental units must be listed if they are among the creditors holding the 20 largest claims.
Rule 1008 requires all lists to be verified or contain an unsworn declaration conforming with 28 U.S.C. §1746.
The form has been amended to delete reference to the specific subsection of 11 U.S.C. §101 in connection with the definition of the term “insider.” Section 101 of the Bankruptcy Code contains numerous definitions, and statutory amendments from time to time have resulted in the renumbering of many of its subsections. The more general reference will avoid the necessity to amend the form further in the event of future amendments to §101.
The form is amended to direct that the name of any minor child not be disclosed. The amendment implements §112 of the Code, which was added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005).
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
The form is amended to direct that the name of any minor child not be disclosed. The amendment implements §112 of the Code, which was added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). In addition, the form is amended to add to the reference to Rule 1007(m) a direction to include for noticing purposes the name, address, and legal relationship to the child of “a person described” in that rule. Rule 1007(m) requires the person named to be someone on whom process would be served in an adversary proceeding against the child.
(Added Aug. 1, 1991; amended Sept. 22, 1992; Dec. 1, 2002; Dec. 1, 2003; Oct. 17, 2005; Oct. 1, 2006; Dec. 1, 2007.)
This form has been redesigned in a box format similar to that of Form 1. See Advisory Committee Note to Form 1.
The allegations required under §303 are grouped together, and a separate section has been provided for additional allegations based upon the prohibitions and requirements set forth in Rule 1003(a) concerning transfer of claims by petitioning creditors. Petitioners may wish to supplement the allegations set forth in the form with a further statement of facts. Additional information concerning any allegation can be requested by the debtor as part of the discovery process.
Each petitioning creditor, by signing on the line provided, signs both the petition and the unsworn declaration which 28 U.S.C. §1746 permits instead of verification. The addresses as well as the names of individuals signing the petition in a representative capacity are required, together with disclosure of which petitioner is represented by each signatory.
This form is intended to be used in every involuntary case, including that of a partnership. The separate form for a petition by a partner has been abrogated. Pursuant to §303(b)(3)(A) of the Code, a petition by fewer than all of the general partners seeking an order for relief with respect to the partnership is treated as an involuntary petition. Such a petition is adversarial in character because not all of the partners are joining in the petition.
Section 303(b)(3)(B) permits a petition against the partnership if relief has been ordered under the Code with respect to all of the general partners. In that event, the petition may be filed by a general partner, a trustee of a general partner's estate, or a creditor of the partnership. This form may be adapted for use in that type of case.
28 U.S.C. §1408(1) specifies the proper venue alternatives for all persons, including partnerships, as domicile, residence, principal place of business, or location of principal assets. Venue also may be based on a pending case commenced by an affiliate, general partner, or partnership pursuant to 28 U.S.C. §1408(2). Both options are set forth in the block labeled “Venue.”
28 U.S.C. §1746 permits the unsworn declaration instead of a verification. See Committee Note to Form 2.
The form has been amended to require the dating of signatures.
The form is amended to give notice that no filing fee is required if a child support creditor or its representative is a petitioner, and if the petitioner also files a form detailing the child support debt, its status, and other characteristics, as specified in §304(g) of the Bankruptcy Reform Act of 1994, Pub. L. No. 103–394, 108 Stat. 4106 (Oct. 22, 1994).
The form is amended to require the petitioner to disclose the debtor's employer identification number, if any, and only the last four digits of the debtor's social security number to afford greater privacy to the individual debtor, whose bankruptcy case records may be available on the Internet. The form also is amended to delete the request for information concerning the “Type of Business,” as this data no longer is collected for statistical purposes.
The form has been amended to delete statistical information no longer required and to add “as to liability or amount” to the language concerning debts that are the subject of a bona fide dispute, in conformity with §303 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The petitioning creditors must now provide, to the extent known to them, all other names used by the debtor during the 8 years, rather than 6 years, before the filing of the petition. A new check box is provided for the petitioning creditors to identify the debtor that is a “health care business” as defined in §101 of the Code, thereby alerting the court and the United States trustee of the necessity under §333 to appoint an ombudsman to represent the interests of the patients of the health care business. These amendments also implement the 2005 amendments to the Code. A new checkbox also is provided for a “clearing bank,” which may become a debtor upon the filing of a petition at the direction of the Board of Governors of the Federal Reserve System; this addition conforms to an amendment to §109(b)(2) of the Code which was enacted in 2000.
The section of the form labeled “Information Regarding Debtor” is amended to facilitate, to the extent available in an involuntary case, the collection of the same statistical information that is requested in a voluntary case. Accordingly, information about whether the debtor is an individual, a corporation, or some other type of entity is separated from the checklist of types of debtors, such as health care businesses and railroads, concerning which the Code provides for specialized treatment.
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
The form has been amended to delete statistical information about the debtor that no longer is required, and to substitute checkboxes similar to those on the voluntary petition form. The form also is amended to add “as to liability or amount” to the language concerning debts that are the subject of a bona fide dispute, in conformity with §303 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The petitioning creditors must now provide, to the extent known to them, all other names used by the debtor during the 8 years, rather than 6 years, before the filing of the petition. In conformity with Rule 9037, the petitioning creditors are directed to provide only the last four digits of any individual's tax-identification number. A new checkbox is provided for the petitioning creditors to identify the debtor that is a “health care business” as defined in §101 of the Code, thereby alerting the court and the United States trustee of the necessity under §333 of the Code to appoint an ombudsman to represent the interests of the patients of the health care business. These amendments also implement the 2005 amendments to the Code. A new checkbox also is provided for a “clearing bank,” which may become a debtor upon the filing of a petition at the direction of the Board of Governors of the Federal Reserve System; this addition conforms to an amendment to §109(b)(2) of the Code, which was enacted in 2000.
(Added Aug. 1, 1991; amended Mar. 16, 1993; Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2003; Oct. 17, 2005; Oct. 1, 2006; Dec. 1, 2007.)
These schedules shall be used to comply with §521(1) of the Code and Rule 1007(b). Schedules A, B, D, E, and F constitute the schedule of assets and liabilities. Schedules I and J constitute a schedule of current income and current expenditures for individual and joint debtors. Two new schedules have been created, Schedule G—Executory Contracts and Unexpired Leases, and Schedule H—Codebtors.
The order of the schedules has been arranged with the summary sheet in front and with the schedules of assets appearing first, followed by the schedules of liabilities. This structure corresponds to the customary pattern by which trustees and creditors review these documents and to the format of the accounting profession for balance sheets.
The schedules require a complete listing of assets and liabilities but leave many of the details to investigation by the trustee. Instructions in the former schedules to provide details concerning “written instruments” relating to the debtor's property or debts have been deleted. Section 521(3) of the Code requires the debtor to cooperate with the trustee, who can administer the estate more effectively by requesting any documents from the debtor rather than relying on descriptions in the schedules which may prove to be inaccurate.
Leasehold interests in both real and personal property are to be reported in Schedule G—Executory Contracts and Unexpired Leases. This information should not be repeated in the schedules of assets.
Generally in these schedules, a creditor's claim will be listed only once, even if the claim is secured only in part, or is entitled only in part to priority under §507(a) of the Code, with the remainder of the claim to be treated as a general unsecured claim. For example, a partially secured creditor whose claim is reported in Schedule D—Creditors Holding Secured Claims will be listed together with the value of the property securing the claim and a notation of the amount of any unsecured portion of the claim. Information concerning the unsecured portion should not be repeated in Schedule F—Creditors Holding Nonpriority Unsecured Claims. Any resulting overstatement of the amounts owed on secured and priority claims as reported on the summary sheet is offset by a corresponding understatement of the amount owed on unsecured claims.
If a debtor has no property or no creditors in a particular category, an affirmative statement to that effect is required. Married debtors should indicate whether property is jointly or separately owned and whether spouses are jointly or separately liable for debts, using the columns provided in the schedules.
Former “Schedule B–3. Property not otherwise scheduled,” has been deleted and its two questions moved. Schedule B—Personal Property now includes at item 33, “Other personal property of any kind not already listed.” The only other question on former Schedule B–3 concerned assignments for the benefit of creditors; it has been moved to the Statement of Financial Affairs.
Schedule A—Real Property. Instructions at the top of the form indicate the scope of the interests in property to be reported on the schedule. Leasehold interests of the debtor are not reported here but on the Schedule of Executory Contracts and Unexpired Leases. The trustee will request copies of deeds or other instruments necessary to the administration of the estate.
Schedule B—Personal Property. This schedule is to be used for reporting all of the debtor's interests in personal property except leases and executory contracts, which are to be listed on the Schedule of Executory Contracts and Unexpired Leases. Several new categories of property have been added to the schedule, i.e., aircraft, and interests in IRA, ERISA, Keogh, or other pension or profit-sharing plans. To minimize the potential for concealment of assets, the debtor must declare whether the debtor has any property in each category on the schedule. The trustee can request copies of any documents concerning the debtor's property necessary to the administration of the estate.
Schedule C—Property Claimed as Exempt. The form of the schedule has been modified to eliminate duplication of information provided elsewhere. The location of property, for example, which formerly was required here, is disclosed in the schedules of real and personal property. The requirement that the debtor state the present use of the property also has been eliminated as best left to inquiry by the trustee. Exemptions in some states are granted by constitutional provisions; accordingly, the requirement that the debtor state the “statute” creating an exemption has been changed to request a statement of the relevant “law.”
This schedule adds a new requirement that the debtor state the market value of the property in addition to the amount claimed as exempt.
Schedule D—Creditors Holding Secured Claims. Schedules D, E, and F have been redesigned with address boxes sized to match the number of characters which can be accommodated on the computerized noticing systems used by the courts. The size also closely approximates that of standard mailing labels. Space is designated at the top of the box for the debtor's account number with the creditor. The design of the form is intended to reduce the volume of misdirected creditor mail.
The form requires the debtor to state affirmatively that a claim is disputed, unliquidated, or contingent. The existence of any type of codebtor is to be disclosed, but details are to be provided in Schedule H, as they are not needed here. Duplication of information also has been kept to a minimum by deleting requests that the debtor indicate on this schedule whether a debt has been reduced to judgment and the date on which a creditor repossessed any collateral. Requests for details concerning negotiable instruments and the consideration for a claim, formerly part of the schedule, are left to the trustee's inquiries.
Schedule E—Creditors Holding Unsecured Priority Claims. The schedule lists all of the types of claims entitled to priority and requires the debtor to indicate the existence of claims in each category. Continuation sheets are provided. The type of priority claim is to be noted at the top of the continuation sheet, and each type must be reported on a separate sheet. This schedule also requires the debtor to indicate the existence of any codebtors. As in Schedule D—Creditors Holding Secured Claims, requests for information concerning judgments and negotiable instruments have been deleted.
Schedule F—Creditors Holding Unsecured Nonpriority Claims. This schedule has been revised generally in conformity with the other schedules of creditors. If a claim is subject to setoff, the debtor is required to so state.
Schedule G—Executory Contracts and Unexpired Leases. Rule 1007(b) requires the debtor to file a schedule of executory contracts and unexpired leases, unless the court orders otherwise. All unexpired leases of either real or personal property are to be reported on this schedule. The schedule also requires the debtor to disclose specific information to assist the trustee in identifying leases which must be assumed within 60 days after the order for relief or be deemed rejected under §365(d) of the Code.
Schedule H—Schedule of Codebtors. This schedule is designed to provide the trustee and creditors with information about codebtors of all types other than spouses in joint cases. The completed schedule provides information concerning non-debtor parties, such as guarantors and non-debtor spouses having an interest in property as tenants by the entirety. In chapter 12 and chapter 13 cases, the completed schedule also indicates those persons who may be entitled to certain protections from creditor action under §§1201 and 1301 of the Code.
Schedule I—Schedule of Current Income of Individual Debtor(s) and Schedule J—Schedule of Current Expenditures of Individual Debtor(s). Former Official Form No. 6A has been divided into a schedule of current income and a separate schedule of current expenditures. The language is substantially the same as in former Official Form No. 6A. In light of the abrogation of Official Form No. 10, the Chapter 13 Statement, style changes have been made so that these schedules can be used by individual and joint debtors in all chapters.
Schedule E (Creditors Holding Unsecured Priority Claims) has been changed to conform to the statutory amendment that added subsection (a)(8) to §507 of the Code. Pub. L. No. 101–647, (Crime Control Act of 1990), added the new subsection, which had the effect of creating an eighth priority for claims of certain governmental units based on commitments to maintain the capital of an insured depository institution.
Schedule E—Creditors Holding Unsecured Priority Claims is amended to add the new seventh priority afforded to debts for alimony, maintenance, or support of a spouse, former spouse, or child of the debtor by the Bankruptcy Reform Act of 1994. Statutory references are amended to conform to the paragraph numbers of section 507(a) of the Code as renumbered by the 1994 Act. Schedule E also is amended to add commissions owed to certain independent sales representatives and to raise the maximum dollar amounts for certain priorities in accordance with amendments made by the 1994 Act to section 507(a) of the Code. The 1994 Act also amended section 104 of the Code to provide for future adjustment of the maximum dollar amounts specified in section 507(a) to be made by administrative action at three-year intervals to reflect changes in the consumer price index. Schedule E is amended to give notice that these dollar amounts are subject to change without formal amendment to the official form.
The Schedules are a “document for filing” that may be prepared by a “bankruptcy petition preparer” as defined in 11 U.S.C. §110, which was added to the Code by the 1994 Act; accordingly, a signature line for such preparer is added. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested.
The form is amended to add to the column labels a reference to community liability for claims. The amendment is technical and corrects an editorial oversight.
The instructions to Schedule D (Creditors Holding Secured Claims), Schedule E (Creditors Holding Unsecured Priority Claims), and Schedule F (Creditors Holding Unsecured Nonpriority Claims) are amended to inform the debtor that the debtor must list the last four digits of any account number with the listed creditor, and that the debtor may, in its discretion, include the entire account number in the schedules. Schedule I (Current Income of Individual Debtor(s)) is amended to provide greater privacy to minors and other dependents of the debtor by deleting the requirement that the debtor disclose their names. Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.
The forms of the Schedules of Assets and Liabilities are amended 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). An amendment that directs the debtor to avoid disclosing the name of any minor child occurs in several of the schedules in conformity with §112 which was added to the Code in 2005. Section 112 provides for the debtor to provide the name of any minor child confidentially to the court, should the trustee need the information to evaluate properly the information filed by the debtor.
The “Statistical Summary of Certain Liabilities” is added to collect information needed to prepare statistical reports required under 28 U.S.C. §159, which was enacted as part of the 2005 Act.
Schedules A, B, C, and D are amended to delete the word “market” from the columns in which the debtor reports the value of various kinds of property. Amendments to §506 of the Code enacted in 2005 specify that “replacement value” must be used in connection with certain property. The schedules no longer specify “market” value and permit the debtor to choose the appropriate one, whether that be replacement, market, or some other value. Valuation of property, generally, is the subject of extensive provisions in the Code, and the deletion of the word “market” from the determinations of value to be made by the debtor on the schedules is intended to remove any inference about choice of valuation standard. This deletion simply indicates that the form takes no position on which Code provision or valuation standard may be applicable in any instance.
The following paragraphs describe changes that are specific to each schedule.
Schedule B—Personal Property is amended to require the debtor to list any interests in an education IRA, as §541(b)(5), added to the Code in 2005, makes special provision for them. The schedule also is amended to require the debtor to disclose the existence of any customer lists or other compilations containing personally identifiable information provided by an individual to the debtor in connection with obtaining a product or service from the debtor for personal, family, or household purposes. This amendment implements §332, which was added to the Code in 2005.
Schedule C—Property Claimed as Exempt is amended to delete descriptive information concerning the length of domicile required for the debtor to qualify to claim certain exemptions. Any summary of the amendments enacted in 2005 to §522 of the Code concerning these requirements might inadvertently cause the debtor to lose important rights. Accordingly, the form now directs the debtor to indicate whether exemptions are being claimed under §522(b)(2) or §522(b)(3) and whether the debtor claims a homestead exemption that exceeds $125,000.
Schedule E—Creditors Holding Unsecured Priority Claims is amended to implement the changes in priority to which a claim may be entitled under 11 U.S.C. §507 as amended by the 2005 Act and to add the new priority included in the Reform Act for claims for death or personal injury while the debtor was intoxicated. “Subtotal” and “Total” boxes have been added to the column labeled “Amount Entitled to Priority” to assist the individual debtor to complete the Current Monthly Income (“CMI” or “Means Test”) form.
Schedule G—Executory Contracts and Unexpired Leases is amended by deleting the note to the debtor advising that parties listed on this schedule may not receive notice of the filing of the bankruptcy case unless they also are listed on one of the schedules of liabilities. The better practice is for all parties to transactions with the debtor to receive notice of the filing of the case, and an amendment to Rule 1007 requiring the debtor to provide a mailing list that includes these parties is scheduled to take effect December 1, 2005.
Schedule H—Codebtors is amended to add specifics about community property jurisdictions in connection with the requirement to provide the name of any spouse of a debtor who resides or resided in a community property jurisdiction. This amendment also mirrors amendments made in 1997 to Official Form 7, the Statement of Financial Affairs, and will assure that these codebtors receive notice of the filing of the bankruptcy case. The form also is amended to extend from six years to eight years the time period for which this information is reported pursuant to the 2005 amendments to §727(a)(8) of the Code.
Schedule I—Current Income of Individual Debtor(s) is amended to require the income of a nondebtor spouse to be reported in cases filed under chapters 7 and 11. Line numbers have been added to assist the debtor in calculating and reporting totals. A new subtotal line for income from sources other than as an employee and a new “total monthly income” line provide for this form to be used in conjunction with Schedule J to satisfy the requirements of §521(a)(1)(B)(v), which was added to the Code in 2005. The form also has been revised to provide the statement concerning any anticipated increase or decrease in income required in §521(a)(1)(B)(vi), which also was added to the Code in 2005.
Schedule J—Current Expenditures of Individual Debtor(s). A direction has been added to require the debtor to report any increase or decrease in expenses anticipated to occur within the year following the filing of the document, as required by §521(a)(1)(B)(vi), which was added to the Code in 2005. The form also is amended to provide, in conjunction with Schedule I, a statement of monthly net income, itemized to show how the amount is calculated, as required by §522(a)(1)(B)(v), which was added to the Code in 2005.
Declaration Concerning Debtor's Schedules. The declaration by a non-attorney bankruptcy petition preparer is amended to include material mandated by §110 of the Code as amended in 2005.
In order to comply fully with the statistical reporting requirements of 28 U.S.C. §159, which was enacted as part of the 2005 Act [Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109–8, Apr. 20, 2005, 119 Stat. 23] and takes effect in October 2006, the “Statistical Summary of Certain Liabilities” is renamed “Statistical Summary of Certain Liabilities and Related Data,” and additional information is required to be stated there. Collecting in one place the bulk of the information to be used in the reports required under 28 U.S.C. §159 will assist the courts and the Director of the Administrative Office of the United States Courts to fulfill their statutory responsibilities.
Schedule D is amended to provide for creating a total of any unsecured amounts (amounts that exceed the value of the collateral) owed to creditors holding secured claims, and for stating this amount on the Statistical Summary of Certain Liabilities and Related Data. Schedule E is amended to provide for creating totals of the amounts entitled to priority and of any amounts that exceed the statutory limits on certain priorities and to direct the debtor to report these amounts on the Statistical Summary of Certain Liabilities and Related Data. Schedule F is amended to direct the debtor to report the total of this schedule both on the Summary of Schedules and on the Statistical Summary of Certain Liabilities.
The statistical reports required under 28 U.S.C. §159 must include “the current monthly income, average income, and average expenses” of individual debtors with primarily consumer debts as reported on the schedules filed by those debtors. Accordingly, Schedules I and J, on which debtors already are directed to report average income and average expenses are amended to label the totals arrived at by completing the schedules as “average monthly income” and “average monthly expenses.” These amendments make no substantive changes, simply conforming the terminology on these schedules to that used in §159.
The amount of the debtor's current monthly income, which also is required by §159, is derived from Official Forms 22A, 22B, or 22C, depending on the chapter under which the debtor files. This amount is included on the Statistical Summary of Certain Liabilities and Related Data as a convenience to make reports under §159 easier to compile.
The Declaration Concerning Debtor's Schedules is amended in the section designated for signing and verifying by an individual or joint debtor. The amendment accommodates the requirement that individual debtors must complete both the Summary of Schedules and the Statistical Summary of Certain Liabilities and Related Data by directing the debtor to state number of pages being verified as the number of sheets in the completed schedules “plus 2.”
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
The forms of the Schedules of Assets and Liabilities are amended 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) (“BAPCPA”). An amendment that directs the debtor to avoid disclosing the name and address of any minor child occurs in Schedules B, D, E, F, G, and H in conformity with §112 which was added to the Code in 2005. Section 112 provides for the debtor to furnish the name of any minor child confidentially to the court, should the trustee need the information to evaluate properly the information filed by the debtor. In addition, those schedules are amended to add to the reference to Rule 1007(m), with respect to a minor child, a direction to include for noticing purposes the name, address, and legal relationship to the child of “a person described” in that rule. Rule 1007(m) requires the person named to be someone on whom process would be served in an adversary proceeding against the child.
The “Statistical Summary of Certain Liabilities and Related Data” is added to collect from individual debtors with primarily consumer debts the information needed to prepare statistical reports required under 28 U.S.C. §159, which was enacted as part of BAPCPA. Collecting the bulk of the information to be used in these statistical reports in the Summary of Schedules and the statistical summary will assist the courts and the Director of the Administrative Office to fulfill their statutory responsibilities. Schedules D and E are amended to provide additional totals and, together with Schedule F, to direct debtors who must complete the statistical summary to report total amounts there. Similarly, Schedules I and J are amended to conform their terminology to that used in 28 U.S.C. §159 and direct debtors who must complete the statistical summary to report the specified amounts there.
Schedules A, B, C, and D are amended to delete the word “market” from the columns in which the debtor reports the value of various kinds of property. Amendments to §506 of the Code enacted in 2005 specify that “replacement value” must be used in connection with certain property. The schedules no longer specify “market” value and permit the debtor to choose the appropriate one, whether that be replacement, market, or some other value. Valuation of property, generally, is the subject of extensive provisions in the Code, and the deletion of the word “market” from the determinations of value to be made by the debtor on the schedules is intended to remove any inference about choice of valuation standard. This deletion simply indicates that the form takes no position on which Code provision or valuation standard may be applicable in any particular instance.
The following paragraphs describe changes that are specific to each schedule:
Schedule B—Personal Property is amended to require the debtor to list any interests in an education IRA, because §541(b)(5), added to the Code in 2005, makes special provision for them. The schedule is also amended to require the debtor to disclose the existence of any customer lists or other compilations containing personally identifiable information provided by an individual to the debtor in connection with obtaining a product or service from the debtor for personal, family, or household purposes. This amendment implements §332, which was added to the Code by BAPCPA in 2005.
Schedule C—Property Claimed as Exempt is amended to delete descriptive information concerning the length of domicile required for the debtor to qualify to claim certain exemptions. Any summary of the BAPCPA amendments to §522 of the Code concerning these requirements might inadvertently cause the debtor to lose important rights. Accordingly, the form now directs the debtor to indicate whether exemptions are being claimed under §522(b)(2) or §522(b)(3) and whether the debtor claims a homestead exemption that exceeds $136,875.
Schedule D—Creditors Holding Secured Claims is amended to provide for creating a total of any unsecured amounts (amounts that exceed the value of the collateral) owed to creditors holding secured claims. In addition to facilitating statistical reporting, providing a breakdown of the amounts owed to creditors listed on this schedule will assist the individual debtor in completing the means test calculation under §707(b)(2)(A)(i) of the Code.
Schedule E—Creditors Holding Unsecured Priority Claims is amended to implement the changes in priority to which a claim may be entitled under 11 U.S.C. §507 as amended by BAPCPA and to add the new priority included in the 2005 Act for claims for death or personal injury while the debtor was intoxicated. “Subtotal” and “Total” boxes have been added to the columns labeled “Amount Entitled to Priority” and “Amount Not Entitled to Priority” for statistical reporting purposes and to assist the individual debtor in completing the means test calculation under §707(b)(2)(A)(i) of the Code.
Schedule H—Codebtors is amended to add specifics about community property jurisdictions in connection with the requirement to provide the name of any spouse of a debtor who resides or resided in a community property jurisdiction. This amendment also mirrors amendments made in 1997 to Official Form 7, the Statement of Financial Affairs, and will assure that these codebtors receive notice of the filing of the bankruptcy case. The form also is amended to extend from six years to eight years the time period for which this information is reported pursuant to the 2005 amendments to §727(a)(8) of the Code.
Schedule I—Current Income of Individual Debtor(s) is amended to make it clear that “every” married debtor must provide income information for both spouses, unless the spouses are separated and a joint petition is not filed. The description of the income to be reported is revised to clarify that the purpose of this schedule is to obtain information about actual income on the date the bankruptcy case is filed and which a debtor reasonably expects in the future in contrast to the debtor's “current monthly income” as defined in §101(10A) and reported on Form 22A, 22B, or 22C. And a statement included at the top of the form also explains that the income calculated [sic] this form may be different than the current monthly income. Line numbers have been added to assist the debtor in calculating and reporting totals. A new subtotal line for income from sources other than as an employee and a new “average monthly income” line will enable this form to be used in conjunction with Schedule J to satisfy the requirements of §521(a)(1)(B)(v), which was added to the Code by BAPCPA. New statistical reporting requirements in 28 U.S.C. §159 also require “average monthly income.” In addition, the form is revised to provide the statement concerning any anticipated increase or decrease in income required in §521(a)(1)(B)(vi), also added to the Code in 2005.
Schedule J—Current Expenditures of Individual Debtor(s). In conjunction with amendments to Schedule I, the form is amended to provide for reporting the debtor's actual “average monthly expenses,” as required by 28 U.S.C. §159 and a statement of monthly net income, itemized to show how the amount is calculated, as required by §522(a)(1)(B)(v), which was added to the Code by BAPCPA in 2005. In addition, line numbers have been inserted and the description of expenses revised to make it clear than [sic] the purpose of this schedule is to obtain information about a debtor's actual and reasonably foreseeable expenses on the date the bankruptcy case is filed. And a statement similar to the statement at the top of Schedule I explains that the expenses calculated on the form may differ from the expenses calculated on Forms [sic] 22A or 22C. A direction has been added to require the debtor to report any increase or decrease in expenses anticipated to occur within the year following the filing of the document, as required by §521(a)(1)(B)(vi), which also was added to the Code in 2005.
Declaration Concerning Debtor's Schedules. The declaration by individual or joint debtors is amended to require the debtor to merely state the total number of pages being verified. The declaration and signature of any non-attorney bankruptcy petition preparer is amended to include material mandated by §110 of the Code as amended in 2005.
(Added Aug. 1, 1991; amended Mar. 16, 1993; Mar. 14, 1995; Sept. 19, 2000; Dec. 1, 2003; Oct. 17, 2005; Dec. 1, 2007.)
This form consolidates questions from former Official Forms No. 7, No. 8, and No. 10. This form is to be completed by all debtors. An individual debtor engaged in business as a sole proprietor, partner, family farmer, or self-employed professional should provide the information requested on this statement concerning all such activities as well as the individual's personal affairs.
The Chapter 13 Statement, former Official Form No. 10, has been abrogated. Chapter 13 debtors are to complete this statement and the schedules prescribed in Official Form 6.
All questions have been converted to affirmative directions to furnish information, and each question must be answered. If the answer is “none,” or the question is not applicable, the debtor is required to so state by marking the box labeled “None” provided at each question.
See Committee Note to Form 2 for a discussion of the unsworn declaration at the end of this form.
The form has been amended in two ways. In the second paragraph of the instructions, the third sentence has been deleted to clarify that only a debtor that is or has been in business as defined in the form should answer Questions 16–21. In addition, administrative proceedings have been added to the types of legal actions to be disclosed in Question 4.a.
This form is a “document for filing” that may be prepared by a “bankruptcy petition preparer” as defined in 11 U.S.C. §110, which was added to the Code by the Bankruptcy Reform Act of 1994; accordingly, a signature line for such preparer is added. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested.
The form has been amended to provide more information to taxing authorities, pension fund supervisors, and governmental units charged with environmental protection and regulation. Four new questions have been added to the form, covering community property owned by a debtor and the debtor's non-filing spouse or former spouse (Question 16), environmental information (Question 17), any consolidated tax group of a corporate debtor (Question 24), and the debtor's contributions to any employee pension fund (Question 25). In addition, every debtor will be required to state on the form whether the debtor has been in business within six years before filing the petition and, if so, must answer the remaining questions on the form (Questions 19–25). This is an enlargement of the two-year period previously specified. One reason for the longer “reach back” period is that business debtors often owe taxes that have been owed for more than two years. Another is that some of the questions already addressed to business debtors request information for the six-year period before the commencement of the case. Application of a six-year period to this section of the form will assure disclosure of all relevant information.
Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.
The form is amended in several ways to reflect changes in the Bankruptcy Code made by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). A new sentence in the introduction advises the debtor not to disclose the name and address of any minor child.
The definition of “in business” is amended in the introductory section and in Question 1 and Question 18 to clarify that various part-time activities can result in the debtor being “in business” for purposes of the form.
Question 1 is amended to specify that, in addition to the income from the debtor's primary employment, the debtor must include income from part-time activities either as an employee or from self-employment. The debtor now also will report the source of all income from employment or operation of a business, even if there is only one source, in order to assist the trustee in reviewing the pay stubs, etc., filed by the debtor in the case.
Question 3 is amended to accommodate amendments to §547(c) of the Code enacted in 2005 which exempt from recovery by the trustee payments by a debtor for a domestic support obligation or as part of an alternative repayment schedule negotiated by an approved nonprofit budgeting and credit counseling agency. In addition, Question 3 now requires a debtor with primarily non-consumer debts to report only those transfers that aggregate more than $5,000 to any creditor in the 90-day period prior to the filing of the petition, as a result of the addition of §547(c)(9) to the Code in 2005.
In Question 10, the extension of the reachback period for transfers from one year to two years reflects the 2005 amendment to §548(a)(1) of the Code to permit a trustee to avoid a fraudulent transfer made by the debtor within two years of the date of the filing of the petition. Question 10 also is amended to implement new §548(e) added to the Code in 2005 to require the debtor to disclose all transfers to any self-settled asset protection trust within the ten years before the filing of the petition.
Question 15 is amended to extend from two years to three years the preterition time period for which the debtor must disclose the addresses of all premises occupied by the debtor. This information will assist the trustee, the United States trustee, and the court to ascertain whether any homestead exemption asserted by the debtor is properly claimed under §522(v)(3)(A) as amended, and §§522(p) and (q) as added to the Code in 2005.
The form also is amended to extend from six years to eight years the period before the filing of the petition concerning which the debtor is required to disclose the name of the debtor's spouse or of any former spouse who resides or resided with the debtor in a community property state. In addition, the certification by a non-attorney bankruptcy petition preparer is renamed a “declaration” and is amended to include material mandated by 11 U.S.C. §110 as amended by the 2005 Act.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
The form is amended in several ways to reflect changes in the Bankruptcy Code made by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). A new sentence in the introduction advises the debtor not to disclose the name and address of any minor child in conformity with §112, which was added to the Code by the 2005 Act. In addition, the form is amended to add to the reference to Rule 1007(m) with respect to a minor child a direction to include for noticing purposes the name, address, and legal relationship to the child of “a person described” in that rule. Rule 1007(m) requires the person named to be someone on whom process would be served in an adversary proceeding against the child.
The definition of “in business” is amended in the introductory section and in Question 1 and Question 18 to clarify that various part-time activities can result in the debtor being “in business” for purposes of the form.
Question 1 is amended to specify that, in addition to the income from the debtor's primary employment, the debtor must include income from part-time activities either as an employee or from self-employment. The debtor now also will report the source of all income from employment or operation of a business, even if there is only one source, in order to assist the trustee in reviewing the pay stubs, etc., filed by the debtor in the case.
Question 3 is amended to accommodate amendments to §547(c) of the Code enacted in 2005 which exempt from recovery by the trustee payments by a debtor for a domestic support obligation or as part of an alternative repayment schedule negotiated by an approved nonprofit budgeting and credit counseling agency. In addition, Question 3 now requires a debtor with primarily non-consumer debts to report only those transfers that aggregate more than $5,475 to any creditor in the 90-day period prior to the filing of the petition, as a result of the addition of §547(c)(9) to the Code in 2005. In addition, the language of the question is revised for clarity.
In Question 10, the extension of the reach-back period for transfers from one year to two years reflects the 2005 amendment to §548(a)(1) of the Code to permit a trustee to avoid a fraudulent transfer made by the debtor within two years before the date of the filing of the petition. Question 10 also is amended to implement new §548(e) added to the Code in 2005 to require the debtor to disclose all transfers to any self-settled asset protection trust within the ten years before the filing of the petition.
Question 15 is amended to extend from two years to three years the prepetition time period for which the debtor must disclose the addresses of all premises occupied by the debtor. This information will assist the trustee, the United States trustee, and the court to ascertain whether any homestead exemption asserted by the debtor is properly claimed under §522(b)(3)(A) as amended, and §§522(p) [sic] and (q) as added to the Code in 2005.
The form also is amended to extend from six years to eight years the period before the filing of the petition concerning which the debtor is required to disclose the name of the debtor's spouse or of any former spouse who resides or resided with the debtor in a community property state. In addition, the certification by a non-attorney bankruptcy petition preparer is renamed a “declaration” and is amended to include material mandated by 11 U.S.C. §110 as amended by the 2005 Act.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2003; Oct. 17, 2005.)
This form is derived from former Official Form No. 8A. Rule 1007(b)(2) requires the debtor to serve a copy of this statement on the trustee and all creditors named in the statement. In a joint case, if the property and debts of both debtors are the same, the form may be adapted for joint use. If joint debtors have separate debts, however, each debtor must use a separate form.
This form is a “document for filing” that may be prepared by a “bankruptcy petition preparer” as defined in 11 U.S.C. §110, which was added to the Code by the Bankruptcy Reform Act of 1994; accordingly, a signature line for such preparer is added. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested.
The form is amended to conform more closely to the language of the Bankruptcy Code. The amendments also make clear that the form is not intended to take a position regarding whether the options stated on the form are the only choices available to the debtor. Compare Lowry Federal Credit Union v. West, 882 F.2d 1543 (10th Cir. 1989), with In re Taylor, 3 F.3d 1512 (11th Cir. 1993).
Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.
The form is amended to conform to §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.
(Added Aug. 1, 1991; amended Sept. 22, 1992; Mar. 16, 1993; Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2003; Oct. 17, 2005; Oct. 1, 2006; Dec. 1, 2007.)
The form has been redesigned to facilitate electronic generation of notice to creditors concerning the filing of the petition, the meeting of creditors, and important deadlines in the case. Adoption of a box format, with significant dates highlighted, is intended to assist creditors who may be unfamiliar with bankruptcy cases to understand the data provided. Nine variations of the form, designated 9A through 9I, have been created to meet the specialized notice requirements for chapters 7, 11, 12, and 13, asset and no-asset cases, and the various types of debtors.
Forms 9B, 9D, 9F, and 9H are amended to make a technical correction in the reference to Rule 9001(5). Form 9H also contains a technical correction deleting the reference to a complaint object to discharge of the debtor.
The title page of the form has been amended to conform to the headings used on Forms 9A–9I. Alternate versions of Form 9E and Form 9F have been added for the convenience of districts that routinely set a deadline for filing claims in a chapter 11 case. When a creditor receives the alternate form in a case, the box labeled “Filing Claims” will contain information about the bar date as follows: “Deadline for filing a claim: (date).” If no deadline is set in a particular case, either the court will use Form 9E or Form 9F, as appropriate, or the alternate form will be used with the following sentence appearing in the box labeled “Filing Claims”: “When the court sets a deadline for filing claims, creditors will be notified.”
The form is amended to provide notice of the claims filing period provided to “a governmental unit” by section 502(b)(9) of the Code as amended by the Bankruptcy Reform Act of 1994. A court that routinely sets a deadline for filing proofs of claim at the outset of chapter 11 cases and, accordingly, uses Form 9E(Alt.) or Form 9F(Alt.) retains the option in any case in which no deadlines actually are set to substitute a message stating that creditors will be notified if the court fixes a deadline.
The form also is amended to add, in the paragraph labeled “Discharge of Debts,” a reference to dischargeability actions under section 523(a)(15) of the Code, which was added by the 1994 Act.
Forms 9A, 9I (and the alternate versions of Forms 9E and 9F) have been amended, redesigned, and rewritten. Minor conforming changes have been made to respond to amendments made in the Bankruptcy Reform Act of 1994: the longer claims filing period for governmental units in section 502(b)(9) of the Code (see Forms 9C, 9D, 9E(Alt.), 9F(Alt.), 9G, 9H, and 9I); and a reference to dischargeability actions under section 523(a)(15) (see Forms 9A, 9C, 9E, and 9E(Alt.), 9G, and 9H). All of the forms have been substantially revised to make them easier to read and understand. The titles have been simplified. Recipients are told why they are receiving the notice. Explanations are provided on the back of the form and are set in larger type. Plain English is used. Deadlines are highlighted on the front of the form. Recipients are told that papers must be received by the bankruptcy clerk's office by the applicable deadline. The box for the trustee has been deleted from the chapter 11 notices (Forms 9E and 9F and the alternates). Various alternatives are set out in brackets in many of the forms, permitting each bankruptcy clerk's office to tailor the forms even more precisely to fit the needs of a particular case. The court may use blank spaces on the form to include additional information applicable to the particular district.
The form is amended to add to the information provided to creditors, the trustee and the United States trustee, all the names used by the debtor during the six years prior to the filing of the petition. The form includes the debtor's full employer identification number, if any, as well as the last four digits of the debtor's social security number. Rule 2002(a)(1) also is amended to direct the clerk to include the debtor's full social security number and employer identification number on the notices served on the United States trustee, the trustee, and creditors. This will enable creditors to identify the debtor accurately. The copy of Official Form 9 included in the case file, however, will show only the last four digits of the debtor's social security number. This should afford greater privacy to the individual debtor, whose bankruptcy case records may be available on the Internet.
The form is amended in a variety of way [sic] 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. All versions of the form are also amended to provide information about filing claims to creditors with foreign addresses and to advise those creditors to consult a lawyer familiar with United States bankruptcy law regarding any questions they may have about their rights in a particular case. These amendments implement §1514, which was added to the Code in 2005.
Forms 9A and 9C are amended to include a box in which the clerk can notify creditors in a chapter 7 case filed by an individual with primarily consumer debts whether the presumption of abuse has arisen under §707(b) of the Code as amended in 2005. Under §342(d) of the Code, the clerk has a duty to notify creditors concerning the presumption within ten days of the filing of the petition. If [sic] cases in which the debtor does not file Official Form 22A with the petition, the forms provide for the clerk to state that insufficient information has been filed, and to inform creditors that if later-filed information indicates that the presumption arises, creditors will be sent another notice.
In cases involving serial filers (debtors who have filed more than one case within a specified period), the automatic stay provided by §362(a) of the Code as amended in 2005 may not apply or may be limited in duration, unless the stay is extended or imposed by court order. The form contains a general statement alerting debtors to this possibility.
Section 1514, added to the Code in 2005, also requires that a secured creditor with a foreign address be advised whether the creditor is required to file a proof of claim, and Forms 9B, 9D, 9E, 9E (Alt.), 9F, 9F (Alt.), 9G, 9H, and 9I are amended to include general information addressing that question. Forms 9E, 9E (Alt.), 9F, and 9F (Alt.) also are amended to inform creditors that in a case in which the debtor has filed a plan for which it has solicited acceptances before filing the case, the court may, after notice and a hearing, order that the United States trustee not convene a meeting of creditors.
Forms 9E and 9E Alt. are amended to state that, unless the court orders otherwise, an individual chapter 11 debtor's discharge is not effective until completion of all payments under the plan, as provided in §1141(d)(5) which was added to the Code in 2005. Forms 9F and 9F (Alt.) are amended to include a deadline to file a complaint to determine the discharge ability of a debt, in conformity with §1141(d)(6) which was added to the Code in 2005.
Form 9I is amended to include a deadline to file a complaint to determine the discharge ability of certain debts. This amendment implements 2005 amendment [sic] to §1328(a)(1) of the Code.
Forms 9G and 9H are amended to add “family fisherman” to the title and to the description of chapter 12. The 2005 amendments to the Code added a “family fisherman,” as defined in §101(19A), to the persons eligible to file a bankruptcy case under chapter 12. Form 9I is amended to provide general notice to parties in interest of the potential for a claim to be filed late in the case.
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
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. All versions of the form also are amended to provide to creditors with foreign addresses information about filing claims and to advise those creditors to consult a lawyer familiar with United States bankruptcy law regarding any questions they may have about their rights in a particular case. These amendments implement §1514, which was added to the Code in 2005.
Forms 9A and 9C are amended to include a box in which the clerk can notify creditors in a chapter 7 case filed by an individual with primarily consumer debts if the presumption of abuse has arisen under §707(b) of the Code as amended in 2005. Under §342(d) of the Code, the clerk has a duty to notify creditors concerning the presumption within ten days of the filing of the petition. In cases in which the debtor does not file Official Form 22A with the petition, the forms provide for the clerk to state that insufficient information has been filed, and to inform creditors that if later-filed information indicates that the presumption arises, creditors will be sent another notice. Forms 9G and 9H are amended to add “family fishermen” to the notices used in chapter 12 cases, in conformity with the 2005 amendments to the Code extending the provisions of chapter 12 to family fishermen.
In cases involving serial filers (debtors who have filed more than one case within a specified period), the automatic stay provided by §362(a) of the Code as amended in 2005 may not apply or may be limited in duration, unless the stay is extended or imposed by court order. The form contains a general statement alerting debtors to this possibility.
Section 1514, added to the Code in 2005, also requires that a secured creditor with a foreign address be advised whether the creditor is required to file a proof of claim, and Forms 9B, 9D, 9E, 9E (Alt.), 9F, 9F (Alt.), 9G, 9H, and 9I are amended to include general information addressing that question. Forms 9E, 9E (Alt.), 9F, and 9F (Alt.) also are amended to inform creditors that in a case in which the debtor has filed a plan for which it has solicited acceptances before filing the case, the court may, after notice and a hearing, order that the United States trustee not convene a meeting of creditors.
Forms 9E and 9E (Alt.) are amended to state that, unless the court orders otherwise, an individual chapter 11 debtor's discharge is not effective until completion of all payments under the plan, as provided in §1141(d)(5) which was added to the Code in 2005. Forms 9F and 9F (Alt.) are amended to include a deadline to file a complaint to determine the dischargeability of a debt, in conformity with §1141(d)(6), which also was added to the Code in 2005.
Form 9I is amended to include a deadline to file a complaint to determine the dischargeability of certain debts. This amendment implements a 2005 amendment to §1328(a) of the Code.
In addition, all versions of the form are amended to provide to the public only the last four digits of any individual debtor's taxpayer-identification number. This amendment implements Rule 9037.
(Added Aug. 1, 1991; amended Mar. 16, 1993; Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2003; Oct. 17, 2005; Dec. 1, 2007.)
This form replaces former Official Forms No. 19, No. 20, and No. 21. The box format and simplified language are intended to facilitate completion of the form.
The form directs the claimant to attach documents to support the claim or, if voluminous, a summary of such documents. These include any security agreement (if not included in the writing on which the claim is founded), and evidence of perfection of any security interest. See Committee Note to Rule 3001(d) concerning satisfactory evidence of perfection. If the claim includes prepetition interest or other charges such as attorney fees, a statement giving a detailed breakdown of the elements of the claim is required.
Rule 2002(g) requires the clerk to update the mailing list in the case by substituting the address provided by a creditor on a proof of claim, if that address is different from the one supplied by the debtor. The form contains checkboxes to assist the clerk in performing this duty. The form also alerts the trustee when the claim is an amendment to or replacement for an earlier claim.
The form has been amended to accommodate inclusion of the priority afforded in §507(a)(8) of the Code, which was added by Pub. L. No. 101–647, (Crime Control Act of 1990), and to avoid the necessity of further amendment to the form if other priorities are added to §507(a) in the future. In addition, sections 4 and 5 of the form have been amended to clarify that only prepetition arrearages and charges are to be included in the amount of the claim.
The form is amended to add the seventh priority granted by the Bankruptcy Reform Act of 1994 to debts for alimony, maintenance, or support of a spouse, former spouse, or child of the debtor. The form also amends the Code reference to the priority afforded to tax debts and the dollar maximums for the priorities granted to wages and customer deposits in conformity with amendments made by the 1994 Act to section 507(a) of the Code. The 1994 Act also amended section 104 of the Code to provide for future adjustment of the dollar amounts specified in section 507(a) to be made by administrative action at three-year intervals to reflect changes in the consumer price index. The form is amended to include notice that these dollar amounts are subject to change without formal amendment to the official form.
Numbered sections 4. and 5. of the form have been reformatted to eliminate redundant information and make it easier to complete the form correctly. A creditor will report the total amount of the claim first, and will report only that amount unless the claim is secured by collateral or entitled to a priority under §507 of the Code.
Explanatory definitions and instructions for completing the form also have been added.
The form is amended to require a wage, salary, or other compensation creditor to disclose only the last four digits of the creditor's social security number to afford greater privacy to the creditor. A trustee can request the full information necessary for tax withholding and reporting at the time the trustee makes a distribution to creditors.
The form is amended to conform to changes in the priority afforded the claims of certain creditors in §507(a) of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005).
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
The form is amended to conform to changes in the priority afforded the claims of certain creditors in §507(a) of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005).
In addition, the form and its instructions are amended in several respects based on the experiences of creditors and trustees in using it and on the technological changes that have occurred in the courts’ processing of claims. A definition of the word “redacted” has been added in conformity with Rule 9037.
The creditor now has a space in which to provide a separate payment address if different from the creditor's address for receiving notices in the case. The checkboxes for indicating that the creditor's address provided on the proof of claim is a new address, and that the creditor never received any notices from the court in the case have been deleted. The computer systems now used by the courts make it unnecessary for a creditor to “flag” a new address or call attention to the fact that the creditor is making its first appearance in the case. In place of the deleted items is a new checkbox to be used when a debtor or a trustee files a proof of claim for a creditor; it will alert the clerk to send the notice required by Rule 3004. The box for indicating whether the claim replaces a previously filed claim also has been deleted as no longer necessary in light of the 2005 amendments to Rules 3004 and 3005. The creditor simply will amend the claim filed by the other party.
Requests for the creditor to state the date on which the debt was incurred and the date on which any court judgment concerning the debt was obtained have been deleted, based on reports from trustees that they rely on the documents supporting the claim for this information. The checkboxes for stating the basis for the creditor's claim have been replaced with a blank in which the creditor is to provide this information. Examples of the most common categories, based on the former checkboxes, can be found in the instructions on the form. The request to state the account number by which the creditor identifies the debtor has been moved to paragraph 3 of the form and has been revised to request only the last four digits of the number, in conformity with Rule 9037. In addition, a new paragraph 3a gives the creditor a place to notify the trustee and the court of any change in the creditor's name, or that the claim has been transferred, or to provide any other information to clarify a difference between the proof of claim and the creditor's claim as scheduled by the debtor.
The adjective “total” is deleted from the sections of the form where the creditor states the amount of the claim and the creditor now simply reports the amount of the claim. If the claim is a general unsecured claim, no further details are stated on the form, although a creditor still must attach a copy of any writing on which the claim is based, as required by Rule 3001(c), and must attach a statement itemizing any interest or other charges (in addition to the principal) that are included in the claim. If the claim or any part of it is secured or entitled to priority under §507(a) of the Code, the creditor is directed to provide details in the appropriate sections of the form. The creditor now states the amount to be afforded priority only once, in the section of the form designated for describing the specific priority being asserted. The introductory language in the section where the creditor describes any priority to which it is entitled has been revised for clarity. The word “collateral” has been replaced with the less colloquial and more accurate phrase “lien on property” throughout the form.
Information about obtaining acknowledgment from the court of the filing of the proof of claim is revised and moved to a new section on the reverse side called “Information.” This new section also alerts a creditor to the possibility that it may be approached about selling its claim, advises that the court has no role in any such solicitations, and states that a creditor is under no obligation to accept any offer to purchase its claim. A new instruction is added about signing a proof of claim. This instruction includes citations to Rules 9011 and 5005(a)(2) concerning signature requirements in an electronic filing environment.
Finally, all of the definitions and instructions on the reverse side of the form are amended generally to reflect the deletions, additions, and other changes made on page 1. These include a reminder to the creditor to keep the court informed of any changes in its address. The instructions now appear at the top of the page, and the text is revised both to reflect the substantive changes to the form and to improve the clarity and style of this explanatory material.
(Added Aug. 1, 1991.)
This form previously was numbered Official Form No. 17.
(Added Aug. 1, 1991.)
This form previously was numbered Official Form No. 18.
(Added Aug. 1, 1991.)
This form previously was numbered Official Form No. 28. The form is related to Rule 3017(a). Section 1125 of the Code requires court approval of a disclosure statement before votes may be solicited for or against a plan in either chapter 11 reorganization or chapter 9 municipality cases.
Objections to the disclosure statement may be filed. Rule 3017(a) specifies that the court may fix a time for the filing of objections or they can be filed at any time prior to approval of the statement.
Rule 3017(a) also specifies the persons who are to receive copies of the statement and plan prior to the hearing. These documents will not be sent to all parties in interest because at this stage of the case it could be unnecessarily expensive and confusing. However, any party in interest may request copies. The request should be made in writing (Rule 3017(a)), and sent to the person mailing the statement and plan which, as the form indicates, would usually be the proponent of the plan.
This form may be adapted for use if more than one disclosure statement is to be considered by the court.
(Added Aug. 1, 1991.)
This form is derived from former Official Form No. 29. The form may be adapted for use if more than one disclosure statement is approved by the court.
(Added Aug. 1, 1991; amended Oct. 1, 1997.)
This form is derived from former Official Form No. 30. The form has been amended to facilitate the voting of a debtor's shares held in “street name.” The form may be adapted to designate the class in which each ballot is to be tabulated. It is intended that a separate ballot will be provided for each class in which a holder may vote.
The form has been substantially amended to simplify its format and make it easier to complete correctly.
Directions or blanks for proponent to complete the text of the ballot are in italics and enclosed within brackets. A ballot should include only the applicable language from the alternatives shown on this form and should be adapted to the particular requirements of the case.
If the plan provides for creditors in a class to have the right to reduce their claims so as to qualify for treatment given to creditors whose claims do not exceed a specified amount, the ballot should make provisions for the exercise of that right. See section 1122(b) of the Code.
If debt or equity securities are held in the name of a broker/dealer or nominee, the ballot should require the furnishing of sufficient information to assure that duplicate ballots are not submitted and counted and that ballots submitted by a broker/dealer or nominee reflect the votes of the beneficial holders of such securities. See Rule 3017(e).
In the event that more than one plan of reorganization is to be voted upon, the form of ballot will need to be adapted to permit holders of claims or equity interests (a) to accept or reject each plan being proposed, and (b) to indicate preferences among the competing plans. See section 1129(c) of the Code.
(Added Aug. 1, 1991; amended Dec. 1, 2001.)
This form is derived from former Official Form No. 31. The form has been simplified to avoid the necessity of repeating the statutory requirements of 11 U.S.C. §1129(a). In the case of an individual chapter 11 debtor, Form 18 may be adapted for use together with this form.
The form is amended to conform to the December 1, 2001, amendments to Rule 3020.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Dec. 1, 2003; Oct. 17, 2005; Dec. 1, 2007.)
This form has been transferred from former Official Form No. 1, which included the form of caption for the case. Rule 9004(b) requires a caption to set forth the title of the case. Rule 1005 provides that the title of the case shall include the debtor's name, all other names used by the debtor within six years before the commencement of the case, and the debtor's social security and tax identification numbers. This form of caption is prescribed for use on the petition, the notice of the meeting of creditors, the order of discharge, and the documents relating to a chapter 11 plan, (Official Forms 1, 9, 12, 13, 14, 15, and 18). See Rule 2002(m). In the petition (Official Form 1), and the notice of the meeting of creditors, (Official Form 9), the information required by Rule 1005 appears in a block format. A notation of the chapter of the Bankruptcy Code under which the case is proceeding has been added to the form.
The form is amended to provide for the debtor's address to appear in the caption in furtherance of the duty of the debtor to include this information on every notice given by the debtor. The Bankruptcy Reform Act of 1994 amended section 342 of the Code to add this requirement.
The form is amended to require disclosure of only the last four digits of the debtor's social security number to afford greater privacy to the individual debtor, whose bankruptcy case records may be available over the Internet.
The form is amended to require that the title of the case include all names used by the debtor within the last eight years in conformity with §727(a)(8) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), extending from six years to eight years the period during which a debtor is barred from receiving successive discharges.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
The form is amended to require that the title of the case include all names used by the debtor within the last eight years in conformity with §727(a)(8) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), extending from six years to eight years the period during which a debtor is barred from receiving successive discharges. In conformity with Rule 9037, the filer is directed to provide only the last four digits of any individual debtor's taxpayer-identification number.
(Added Aug. 1, 1991; amended Mar. 14, 1995.)
This form of caption is prescribed for general use in filing papers in a case under the Bankruptcy Code. Rule 9004(b) requires a caption to set forth the title of the case, and Rule 1005 specifies that the title must include all names used by the debtor within six years before the commencement of the case and the debtor's social security and tax identification numbers. This information is necessary in the petition, the notice of the meeting of creditors, the order of discharge, and the documents relating to the plan in a chapter 11 case. See Rule 2002(m) and Official Form 16A. In other notices, motions, applications, and papers filed in a case, however, a short title containing simply the names of the debtor or joint debtors may be used. Additional names, such as any under which the debtor has engaged in business, may be included in the short title as needed.
The title of this form is amended to specify that it can be used when section 342(c) of the Code, as added by the Bankruptcy Reform Act of 1994, is not applicable.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Dec. 1, 2003.)
This form previously was numbered Official Form No. 34. A notation of the chapter of the Bankruptcy Code under which the case is proceeding has been added to the form. Rule 7010 refers to this form as providing the caption of a pleading in an adversary proceeding.
The form is amended to conform to the amendments made to section 342 of the Code by the Bankruptcy Reform Act of 1994.
The form is abrogated. An amendment to Official Form 16A directs that only the last four digits of the debtor's social security number should appear in a caption. Section 342(c) of the Bankruptcy Code continues to require the debtor to provide a creditor with the debtor's name, address, and taxpayer identification number on any notice the debtor is required to give to the creditor. An individual debtor can fulfill this requirement by including the debtor's social security account number on only the creditor's copy of any notice or summons the debtor may serve on the creditor.
(Added Mar. 14, 1995; amended Dec. 1, 2004.)
This form of caption may be used in an adversary proceeding when section 342(c) of the Code, as added by the Bankruptcy Reform Act of 1994, is not applicable.
This form is amended to reflect the 2003 abrogation of Form 16C. As a complaint initiating an adversary proceeding serves as a notice to the defendant of the filing of an action, a debtor filing an adversary proceeding must follow the notice requirements of §342(c) of the Code. To protect individual privacy a debtor should use the defendant's copy of the summons to be served with the complaint to provide the information required by §342(c) to any creditor named as a defendant.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Oct. 1, 1997; Dec. 1, 2002; Dec. 1, 2004.)
This form is derived from former Official Form No. 35. The form has been amended to indicate that a final order may be entered other than in an adversary proceeding.
The form is amended to reflect the amendments to 28 U.S.C. §158 concerning bankruptcy appellate panels made by the Bankruptcy Reform Act of 1994. Section 158(d) requires an appellant who elects to appeal to a district court rather than a bankruptcy appellate panel to do so “at the time of filing the appeal.”
The 1994 Act also amended 28 U.S.C. §158(a) to permit immediate appeal of interlocutory orders increasing or reducing a chapter 11 debtor's exclusive period to file a plan under section 1121 of the Code. The form is amended to provide appropriate flexibility.
The form has been amended to conform to Rule 8001(a), which requires the notice to contain the names of all parties to the judgment, order, or decree appealed from and the names, addresses, and telephone numbers of their respective attorneys. A party filing a notice of appeal pro se should provide equivalent information.
The form is amended to give notice that no filing fee is required if a child support creditor or its representative is the appellant, and if the child support creditor or its representative files a form detailing the child support debt, its status, and other characteristics, as specified in §304(g) of the Bankruptcy Reform Act of 1994, Pub. L. No. 103–396[394], 108 Stat. 4106 (Oct. 22, 1994).
The form is amended to reflect the 2003 abrogation of Form 16C.
(Added Aug. 1, 1991; amended Mar. 14, 1995; Oct. 1, 1997; Oct. 17, 2005; Dec. 1, 2007.)
This form previously was numbered Official Form No. 27. The form has been revised to accommodate cases commenced by the filing of either a voluntary or an involuntary petition.
The form is amended to include debts described in section 523(a)(15) of the Code, which was added by the Bankruptcy Reform Act of 1994, in the list of debts discharged unless determined by the court to be nondischargeable.
The discharge order has been simplified by deleting paragraphs which had detailed some, but not all, of the effects of the discharge. These paragraphs have been replaced with a plain English explanation of the discharge. This explanation is to be printed on the reverse of the order, to increase understanding of the bankruptcy discharge among creditors and debtors. The bracketed sentence in the second paragraph should be included when the case involves community property.
The form is amended to require that the title of the case include all names used by the debtor within the eight years prior to the filing of the petition in the case in conformity with §727(a)(8) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), extending from six years to eight years the period during which a debtor is barred from receiving successive discharges. The explanation part of the form is amended to include additional types of debts that are not discharged under §523(a) as amended in 2005 and to revise certain terminology in conformity with provisions of the 2005 Act.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
The form is amended to require that the title of the case include all names used by the debtor within the eight years prior to the filing of the petition in the case in conformity with §727(a)(8) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), extending from six years to eight years the period during which a debtor is barred from receiving successive discharges. The explanation part of the form is amended to include additional types of debts that are not discharged under §523(a), as amended in 2005, and to revise certain terminology in conformity with provisions of the 2005 Act. In conformity with Rule 9037 and Official Form 16A, the caption also is amended to provide only the last four digits of any individual debtor's taxpayer-identification number.
(Added Dec. 1, 2007.)
[The 2005–2007 Committee Note incorporates the Committee Notes to Forms 19A and 19B previously published in 2005.]
This form is new. It is derived from form 19B and replaces forms 19A and 19B (which forms are abrogated). The form contains the notice a bankruptcy petition preparer is required to give to a debtor under §110 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005), and the bankruptcy petition preparer's signed declaration (also required by §110 of the Code) that the notice was given to the debtor.
The notice states, in language mandated in the 2005 Act, that the bankruptcy petition preparer is not an attorney and must not give legal advice. The notice also includes examples of advice a bankruptcy petition preparer may not give that are taken from §110(e)(2) of the Code.
Although space is provided in the declaration to list multiple documents prepared for a single filing, a new form 19 must be completed and accompany subsequent filings. For example, one form 19 listing all forms prepared by the bankruptcy petition preparer would be filed with the debtor's petition package. Another form 19 would be required if the debtor files amended schedules later in the case that were prepared by the bankruptcy petition preparer.
The form must be signed by the debtor and the bankruptcy petition preparer where indicated, and must be filed with each document for filing prepared by the bankruptcy petition preparer.
(Added Mar. 14, 1995; amended Dec. 1, 2003; Oct. 17, 2005.)
This form is new. The Bankruptcy Reform Act of 1994 requires a “bankruptcy petition preparer,” as defined in 11 U.S.C. §110, to sign any “document for filing” that the bankruptcy petition preparer prepares for compensation on behalf of a debtor, to disclose on the document certain information, and to provide the debtor with a copy of the document. This form or adaptations of this form have been incorporated into the official forms of the voluntary petition, the schedules, the statement of financial affairs, and other official forms that typically would be prepared for a debtor by a bankruptcy petition preparer. This form is to be used in connection with any other document that a bankruptcy petition preparer prepares for filing by a debtor in a bankruptcy case.
Pursuant to §110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.
The certification by a non-attorney bankruptcy petition preparer in this form is renamed a “declaration” and is amended to include material mandated by amendments to §110 of the Code in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005).
(Added Oct. 17, 2005.)
This form is new. It contains the notice a non-attorney bankruptcy petition preparer is required to give to a debtor under §110 of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 23 (April 20, 2005). The notice states, in language mandated in the 2005 Act, that the bankruptcy petition preparer is not an attorney and must not give legal advice. The form includes examples of advice a bankruptcy petition preparer may not give that are take [sic] from §110(e)(2), which also was added to the Code in 2005. The notice must be signed by the debtor and by the bankruptcy petition preparer and filed with any document for filing prepared by the bankruptcy petition preparer.
(Added Oct. 1, 1997.)
These forms [20A and 20B] are new. They are intended to provide uniform, plain English explanations to parties regarding what they must do to respond in certain contested matters which occur frequently in bankruptcy cases. Such explanations have been given better in some courts than in others. The forms are intended to make bankruptcy proceedings more fair, equitable, and efficient, by aiding parties, who sometimes do not have counsel, in understanding the applicable rules. It is hoped that use of these forms also will decrease the number of inquiries to bankruptcy clerks’ offices.
These notices will be sent by the movant unless local rules provide for some other entity to give notice.
These forms are not intended to dictate the specific procedures to be used by different bankruptcy courts. The forms contain optional language that can be used or adapted, depending on local procedures. Similarly, the signature line will be adapted to identify the actual sender of the notice in each circumstance. All adaptations of the form should carry out the intent to give notice of applicable procedures in easily understood language.
(Added Oct. 1, 1997.)
These forms [20A and 20B] are new. They are intended to provide uniform, plain English explanations to parties regarding what they must do to respond in certain contested matters which occur frequently in bankruptcy cases. Such explanations have been given better in some courts than in others. The forms are intended to make bankruptcy proceedings more fair, equitable, and efficient, by aiding parties, who sometimes do not have counsel, in understanding the applicable rules. It is hoped that use of these forms also will decrease the number of inquiries to bankruptcy clerks’ offices.
These notices will be sent by the movant unless local rules provide for some other entity to give notice.
These forms are not intended to dictate the specific procedures to be used by different bankruptcy courts. The forms contain optional language that can be used or adapted, depending on local procedures. Similarly, the signature line will be adapted to identify the actual sender of the notice in each circumstance. All adaptations of the form should carry out the intent to give notice of applicable procedures in easily understood language.
(Added Dec. 1, 2003; amended Dec. 1, 2007.)
The form implements Rule 1007(f), which requires a debtor to submit a statement under penalty of perjury setting out the debtor's Social Security number. The form is necessary because Rule 1005 provides that the caption of the petition includes only the final four digits of the debtor's Social Security number. The statement provides the information necessary for the clerk to include the debtor's full Social Security number on the notice of the meeting of creditors, as required under Rule 2002(a)(1). Creditors in a case, along with the trustee and United States trustee or bankruptcy administrator, will receive the full Social Security number on their copy of the notice of the meeting of creditors. The copy of that notice which goes into the court file will show only the last four digits of the number.
The form is amended to direct an individual debtor who does not have a social-security number but has another government-issued individual taxpayer-identification number to furnish that number to the court. In light of the new Rule 9037 which limits public disclosure to all but the last four digits of any individual taxpayer-identification number, the amendment to this form will ensure that the court and creditors can properly identify a debtor who does not have a social-security number.
(Added Oct. 17, 2005; amended Oct. 1, 2006; Jan. 1, 2008.)
A. Overview
Among the changes introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 [Pub. L. 109–8, Apr. 20, 2005, 119 Stat. 23] are 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. In Chapter 7, if the debtor's CMI exceeds a defined level the debtor is subject to the means test, and §707(b)(2)(C) specifically requires debtors to file a statement of CMI and calculations to determine the applicability of the means test presumption. In Chapters 11 and 13, CMI provides the starting point for determining the disposable income that must be contributed to payment of unsecured creditors. Moreover, Chapter 13 debtors with CMI above defined levels are required by §1325(b)(3) to complete the means test in order to determine the amount of their monthly disposable income, and pursuant to §1325(b)(4), the level of CMI determines the “applicable commitment period” over which projected disposable income must be paid to unsecured creditors.
To provide for the reporting and calculation of CMI and for the completion of the means test where required, three separate official forms have been created—one for Chapter 7, one for Chapter 11, and one for Chapter 13. This note first describes the calculation of CMI that is common to all three of the forms, next describes the means test as set out in the Chapter 7 and 13 forms, and finally addresses particular issues that are unique to each of the separate forms.
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. The definition includes in this average (1) income from all sources, whether or not taxable, and (2) any amount paid by an entity other than the debtor (or the debtor's spouse in a joint case) on a regular basis for the household expenses of the debtor, the debtor's dependents, and (in a joint case) the debtor's spouse if not otherwise a dependent. At the same time, the definition excludes from the averaged income “benefits received under the Social Security Act” and certain payments to victims of terrorism, war crimes, and crimes against humanity.
Each of the forms provides for reporting income items constituting CMI. The items are reported in a set of entry lines—Part II of the Chapter 7 form and Part I of the forms for Chapter 11 and Chapter 13—that include separate columns for reporting income of the debtor and of the debtor's spouse. The first of these entry lines includes a set of instructions and check boxes indicating when the “debtor's spouse” column must be completed. The instructions also direct the required averaging of reported income.
The subsequent entry lines specify several common types of income and are followed by a “catch-all” line for other income. The specific entry lines address (a) gross wages; (b) business income; (c) rental income; (d) interest, dividends, and royalties; (e) pension and retirement income; (f) regular contributions to the debtor's household expenses; and (g) unemployment compensation. Gross wages (before taxes) are required to be entered. Consistent with usage in the Internal Revenue Manual and the American Community Survey of the Census Bureau, business and rental income is defined as gross receipts less ordinary and necessary expenses. Unemployment compensation is given special treatment. Because the federal government provides funding for state unemployment compensation under the Social Security Act, there may be a dispute about whether unemployment compensation is a “benefit received under the Social Security Act.” The forms take no position on the merits of this argument, but give debtors the option of reporting unemployment compensation separately from the CMI calculation. This separate reporting allows parties in interest to determine the materiality of an exclusion of unemployment compensation and to challenge it. The forms provide for totaling the income lines.
C. The means test: deductions from current monthly income (CMI)
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 under are set out in the Code at §707(b)(2)(A)(ii)–(iv). The forms for Chapter 7 and Chapter 13 have identical sections (Parts V and III, respectively) for calculating these deductions. The calculations are divided into subparts reflecting three different kinds of allowed deductions.
1. Deductions under IRS standards
Subpart A deals with deductions from CMI, set out in §707(b)(2)(A)(ii), for “the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides.” The forms provide entry lines for each of the specified expense deductions under the IRS standards, and instructions on the entry lines identify the website of the U.S. Trustee Program, where the relevant IRS allowances can be found. As with all of the deductions in §707(b)(2)(A)(ii), deductions under the IRS standards are subject to the proviso that they not include “any payments for debts.”
The IRS National Standards provide a single allowance for food, clothing, household supplies, personal care, and miscellany, depending on income and household size. The forms contain an entry line for the applicable allowance.
The IRS Local Standards provide one set of deductions for housing and utilities and another set for transportation expenses, with different amounts for different areas of the country, depending on the size of the debtor's family and the number of the debtor's vehicles. Each of the amounts specified in the Local Standards are treated by the IRS as a cap on actual expenses, but because §707(b)(2)(A)(ii) provides for deductions in the “amounts specified under the . . . Local Standards,” the forms treat these amounts as allowed deductions. The forms again direct debtors to the website of the U.S. Trustee Program to obtain the appropriate allowances.
The Local Standards for housing and utilities, as published by the IRS for its internal purposes, present single amounts covering all housing expenses; however, for bankruptcy purposes, the IRS has separated these amounts into a non-mortgage component and a mortgage/rent component. The non-mortgage component covers a variety of expenses involved in maintaining a residence, such as utilities, repairs and maintenance. The mortgage/rent component covers the cost of acquiring the residence. For homeowners with mortgages, the mortgage/rent component involves debt payment, since the cost of a mortgage is part of the allowance. Accordingly, the forms require debtors to deduct from the mortgage/rent component their average monthly mortgage payment (including required payments for taxes and insurance), up to the full amount of the IRS mortgage/rent component, and instruct debtors that this average monthly payment is the one reported on the separate line of the forms for deductions of secured debt under §707(b)(2)(a)(iii). The forms allow debtors to challenge the appropriateness of this method of computing the Local Standards allowance for housing and utilities and to claim any additional housing allowance to which they contend they are entitled, but the forms require specification of the basis for such a contention.
The IRS issues Local Standards for transportation in two components for its internal purposes as well as for bankruptcy: one component covers vehicle operation/public transportation expense and the other ownership/lease expense. The amount of the vehicle operation/public transportation allowance depends on the number of vehicles the debtor operates, with debtors who do not operate vehicles being given a public transportation allowance. The instruction for this line item makes it clear that every debtor is thus entitled to some transportation expense allowance. No debt payment is involved in this allowance. The ownership/lease component, on the other hand, may involve debt payment. Accordingly, the forms require debtors to reduce the allowance for ownership/lease expense by the average monthly loan payment amount (principal and interest), up to the full amount of the IRS ownership/lease expense amount. This average payment is as reported on the separate line of the forms for deductions of secured debt under §707(b)(2)(a)(iii).
The IRS does not set out specific dollar allowances for “Other Necessary Expenses.” Rather, it specifies a number of categories for such expenses, and describes the nature of the expenses that may be deducted in each of these categories. Section 707(b)(2)(a)(ii) allows a deduction for the debtor's actual expenses in these specified categories, subject to its requirement that payment of debt not be included. Several of the IRS categories deal with debt repayment and so are not included in the forms. Several other categories deal with expense items that are more expansively addressed by specific statutory allowances. Subpart A sets out the remaining categories of “Other Necessary Expenses” in individual entry lines. Instructions in these entry lines reflect limitations imposed by the IRS and the need to avoid inclusion of items deducted elsewhere on the forms.
Subpart A concludes with a subtotal of the deductions allowed under the IRS standards.
2. Additional statutory expense deductions
In addition to the expense deductions allowed under the IRS standards, the means test makes provision—in subclauses (I), (II), (IV), and (V) of §707(b)(2)(A)(ii)—for six special expense deductions. Each of these additional expense items is set out on a separate entry line in Subpart B, introduced by an instruction that there should not be double counting of any expense already included in the IRS deductions. Contributions to tax-exempt charities provide another statutory expense deduction. Section 1325(b)(2)(A)(ii) expressly allows a deduction from CMI for such contributions (up to 15% of the debtor's gross income), and §707(b)(1) provides that in considering whether a Chapter 7 filing is an abuse, the court may not take into consideration “whether a debtor . . . continues to make [tax-exempt] charitable contributions.” Accordingly, Subpart B also includes an entry line for charitable contributions. The subpart concludes with a subtotal of the additional statutory expense deductions.
3. Deductions for payment of debt
Subpart C of the forms deals with the means test's deductions from CMI for payment of secured and priority debt, as well as a deduction for administrative fees that would be incurred if the debtor paid debts through a Chapter 13 plan. In accord with §707(b)(2)(A)(iii), the deduction for secured debt is divided into two entry lines—one for payments that are contractually due during the 60 months following the bankruptcy filing, the other for amounts needed to retain necessary collateral securing debts in default. In each situation, the instructions for the entry lines require dividing the total payment amount by 60, as the statute directs. Priority debt, deductible pursuant to §707(b)(2)(A)(iv), is treated on a single entry line, also requiring division by 60. The defined deduction for the expenses of administering a Chapter 13 plan is allowed by §707(b)(2)(A)(ii)(III) only for debtors eligible for Chapter 13. The forms treat this deduction in an entry line requiring the eligible debtor to state the amount of the prospective Chapter 13 plan payment and multiply that payment amount by the percentage fee established for the debtor's district by the Executive Office for United States Trustees. The forms refer debtors to the website of the U.S. Trustee Program to obtain this percentage fee. The subpart concludes with a subtotal of debt payment deductions.
4. Total deductions
Finally, the forms direct that the subtotals from Subparts A, B, and C be added together to arrive at the total of allowed deductions from CMI under the means test.
5. Additional claimed deductions
The forms do not provide for means test deductions from CMI for expenses in categories that are not specifically identified as “Other Necessary Expenses” in the Internal Revenue Manual. However, debtors may wish to claim expenses that do not fall within the categories listed as “Other Necessary Expenses” in the forms. Part VII of the Chapter 7 form and Part VI of the Chapter 13 form provide for such expenses to be identified and totaled. Although expenses listed in these sections are not deducted from CMI for purposes of the means test calculation, the listing provides a basis for debtors to assert that these expenses should be deducted from CMI under §707(b)(2)(A)(ii)(I), and that the results of the forms’ calculation, therefore, should be modified.
D. The chapter-specific forms
1. Chapter 7
The Chapter 7 form has several unique aspects. The form includes, in the upper right corner of the first page, a check box directing the debtor to state whether or not the calculations required by the form result in a presumption of abuse. The debtor is not bound by this statement and may argue, in response to a motion brought under §707(b)(1), that there should be no presumption despite the calculations required by the form. The check box is intended to give clerks of court a conspicuous indication of the cases for which they are required to provide notice of a presumption of abuse pursuant to §342(d).
Part I of the form implements the provision of §707(b)(2)(D) that excludes certain disabled veterans from all means testing, making it unnecessary to compute the CMI of such veterans. Debtors who declare under penalty of perjury that they are disabled veterans within the statutory definition are directed to verify their declaration in Part VII, to check the “no presumption” box at the beginning of the form, and to disregard the remaining parts of the form.
Part II of the form is the computation of CMI. Section 707(b)(7) eliminates standing to assert the means test's presumption of abuse if the debtor's annualized CMI does not exceed a defined median state income. For this purpose, the statute directs that CMI of the debtor's spouse be combined with the debtor's CMI even if the debtor's spouse is not a joint debtor, unless the debtor declares under penalty of perjury that the spouses are legally separated or living separately other than for purposes of evading the means test. Accordingly, the calculation of CMI in Part II directs a computation of the CMI of the debtor's spouse not only in joint cases, but also in cases of married debtors who do not make the specified declaration, and the CMI of both spouses in these cases is combined for purposes of determining standing under §707(b)(7).
Part III of the form provides for the comparison of the debtor's CMI to the applicable state median income for purposes of §707(b)(7). It then directs debtors whose income does not exceed the applicable median to verify the form, to check the “no presumption” box at the beginning of the form, and not to complete the remaining parts of the form. Debtors whose CMI does exceed the applicable state median are required to complete the remaining parts of the form.
Part IV of the form provides for an adjustment to the CMI of a married debtor, not filing jointly, whose spouse's CMI was combined with the debtor's for purposes of determining standing to assert the means test presumption. The means test itself does not charge a married debtor in a non-joint case with the income of the non-filing spouse, but rather only with contributions made by that spouse to the household expenses of the debtor or the debtor's dependents, as provided in the definition of CMI in §101(10A). Accordingly, Part IV calls for the combined CMI of Part II to be reduced by the amount of the non-filing spouse's income that was not contributed to the household expenses of the debtor or the debtor's dependents.
Part V of the form provides for a calculation of the means test's deductions from the debtor's CMI, as described above.
Part VI provides for a determination of whether the debtor's CMI, less the allowed deductions, gives rise to a presumption of abuse under §707(b)(2)(A). Depending on the outcome of this determination, the debtor is directed to check the appropriate box at the beginning of the form and to sign the verification in Part VIII. Part VII allows the debtor to claim additional deductions, as discussed above.
2. Chapter 11
The Chapter 11 form is the simplest of the three, since the means-test deductions of §707(b)(2) are not employed in determining the extent of an individual Chapter 11 debtor's disposable income. Section 1129(a)(15) requires payments of disposable income “as defined in section 1325(b)(2),” and that paragraph allows calculation of disposable income under judicially-determined standards, rather than pursuant to the means test deductions, specified for higher income Chapter 13 debtors by §1325(b)(3). However, §1325(b)(2) does require that CMI be used as the starting point in the judicial determination of disposable income, and so the Chapter 11 form requires this calculation (in Part I of the form), as described above, together with a verification (in Part II).
3. Chapter 13
Like the Chapter 7 form, the form for Chapter 13 debtors contains a number of special provisions. The upper right corner of the first page includes check boxes requiring the debtor to state whether, under the calculations required by the statement, the applicable commitment period under §1325(b)(4) is three years or five years and whether the means test deductions are required by §1325(b)(3) to be used in determining the debtor's disposable income. The check box is intended to inform standing trustees and other interested parties about these items, but does not prevent the debtor from arguing that the calculations required by the form do not accurately reflect the debtor's disposable income.
Part I of the form is a report of income to be used for determining CMI. Section 1325(b)(4) imposes a five-year applicable commitment period—rather than a three-year period—if the debtor's annualized CMI is not less than a defined median state income. For this purpose, as under §707(b)(4), the CMI of the debtor's spouse is required by the statute to be combined with the debtor's CMI, and there is no exception for spouses who are legally separated or living separately. Accordingly, the report of income in Part I directs a combined reporting of the income of both spouses in all cases of married debtors.
Part II of the form computes the applicable commitment period by annualizing the income calculated in Part I and comparing it to the applicable state median. The form allows debtors to contend that the income of a non-filing spouse should not be treated as CMI and permits debtors to claim a deduction for any income of a non-filing spouse to the extent that this income was not contributed to the household expenses of the debtor or the debtor's dependents. The debtor is directed to check the appropriate box at the beginning of the form, stating the applicable commitment period.
Part III of the form compares the debtor's CMI to the applicable state median, allowing a determination of whether the means-test deductions must be used, pursuant to §1325(b)(3), in calculating disposable income. For this purpose, since §1325(b)(3) does not provide for including the income of the debtor's spouse, the form directs a deduction of the income of a non-filing spouse that is not contributed to the household expenses of the debtor or the debtor's dependents. Again, the debtor is directed to check the appropriate box at the beginning of the form, indicating whether the means test deductions are applicable. If so, the debtor is directed to complete the remainder of the form. If not, the debtor is directed to complete the verification in Part VII but not complete the other parts of the form.
Part IV provides for calculation of the means-test deductions provided in §707(b)(2), described above, as incorporated by §1325(b)(3) for debtors with CMI above the applicable state median.
Part V provides for three adjustments required by special provisions affecting disposable income in Chapter 13. First, §1325(b)(2) itself excludes from the CMI used in determining disposable income certain “child support payments, foster care payments, [and] disability payments for a dependent child.” Because payments of this kind are included in the definition of CMI in §101(10A), a line entry for deduction of these payments is provided. Second, a line entry is provided for deduction of contributions by the debtor to certain retirement plans, listed in §541(b)(7)(B), since that provision states that such contributions “shall not constitute disposable income, as defined in section 1325(b).” Third, the same line entry also allows a deduction from disposable income for payments on loans from retirement accounts that are excepted from the automatic stay by §362(b)(19), since §1322(f) provides that for a “loan described in section 362(b)(19) . . . any amounts required to repay such loan shall not constitute ‘disposable income’ under section 1325.”
The Chapter 13 form does not provide a deduction from disposable income for the Chapter 13 debtor's anticipated attorney fees. There is no specific statutory allowance for such a deduction, and none appears necessary. Section 1325(b)(1)(B) requires that disposable income contributed to a Chapter 13 plan be used to pay “unsecured creditors.” A debtor's attorney who has not taken a security interest in the debtor's property is an unsecured creditor who may be paid from disposable income.
Part VI of the form allows the debtor to claim additional deductions, as described above, and Part VII is the verification.
Forms [sic] 22A, Line 43, and Form 22C, Line 48, are amended to delete the phrase “in default” with respect to “Other payments on secured claims.” A debtor may be required to make other payments to the creditor even when the debt is not in default, such as to retain collateral. Form 22C, Line 17, also is amended to require all chapter 13 debtors, including those whose income falls below the applicable median income, to determine their disposable income under §1325(b)(3) of the Code by completing Part III of the form. Both forms contain stylistic amendments to conform the wording more closely to that used in the 2005 Act [Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109–8, Apr. 20, 2005, 119 Stat. 23].
[The 2005–2007 [sic] Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
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. In Chapter 7, if the debtor's CMI exceeds a defined level the debtor is subject to the means test, and §707(b)(2)(C) specifically requires debtors to file a statement of CMI and calculations to determine the applicability of the means test presumption. In Chapters 11 and 13, CMI provides the starting point for determining the disposable income that debtors may be required to pay to unsecured creditors. Moreover, Chapter 13 debtors with CMI above defined median income levels are required by §1325(b)(3) to use the deductions from income prescribed by the means test in order to determine what part of their income is “disposable,” and pursuant to §1325(b)(4), the level of CMI determines the “applicable commitment period” over which projected disposable income must be paid to unsecured creditors.
To provide for the reporting and calculation of CMI and for the completion of the means test where required, three separate official forms have been created—one for Chapter 7, one for Chapter 11, and one for Chapter 13. This note first describes the calculation of CMI that is common to all three of the forms, next describes the means test deductions set out in the Chapter 7 and 13 forms, and finally addresses particular issues that are unique to each of the separate forms.
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. The definition includes in this average (1) income from all sources, whether or not taxable, and (2) any amount paid by an entity other than the debtor (or the debtor's spouse in a joint case) on a regular basis for the household expenses of the debtor, the debtor's dependents, and (in a joint case) the debtor's spouse if not otherwise a dependent. At the same time, the definition excludes from the averaged income “benefits received under the Social Security Act” and certain payments to victims of terrorism, war crimes, and crimes against humanity.
Each of the three forms provides for reporting income items constituting CMI. The items are reported in a set of entry lines—Part II of the form for Chapter 7 and Part I of the forms for Chapter 11 and Chapter 13—that include separate columns for reporting income of the debtor and of the debtor's spouse. The first of these entry lines includes a set of instructions and check boxes indicating when the “debtor's spouse” column must be completed. The instructions also direct the required averaging of reported income.
The subsequent entry lines for income reporting specify several common types of income and are followed by a “catch-all” line for other income. The entry lines address (a) gross wages; (b) business income; (c) rental income; (d) interest, dividends, and royalties; (e) pension and retirement income; (f) regular payments of the household expenses of the debtor or the debtor's dependents; (g) unemployment compensation, and (h) all other forms of income (the “catch-all” line).
Gross wages (before taxes) are required to be entered. However, consistent with usage in the Internal Revenue Manual and the American Community Survey of the Census Bureau, business and rental income are defined as gross receipts less ordinary and necessary expenses.
Unemployment compensation is given special treatment. Because the federal government provides funding for state unemployment compensation under the Social Security Act, there may be a dispute about whether unemployment compensation is a “benefit received under the Social Security Act.” The forms take no position on the merits of this argument, but give debtors the option of reporting unemployment compensation separately from the CMI calculation. This separate reporting allows parties in interest to determine the materiality of an exclusion of unemployment compensation and to challenge it.
Alimony and child support are also given special treatment. Child support is not generally considered “income” to the recipient. See 26 U.S.C. §71(c). Thus, child support is only part of CMI if it is paid on a regular basis for the household expenses of the debtor or the debtor's dependents. On the other hand, alimony and other forms of spousal support are considered income to the recipient, and thus are within CMI regardless of the regularity and use of the payments. To address this distinction, the instruction in the entry line for regular payments of household expenses directs that the entry include regular child support payments used for household expenses of the debtor or the debtor's dependents, and the instruction for the “catch-all” line directs inclusion of all spousal support payments that are not otherwise reported as spousal income.
The forms provide for totaling the income reporting lines.
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
Subpart A deals with deductions from CMI, set out in §707(b)(2)(A)(ii), for “the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides.” The forms provide entry lines for each of the specified expense deductions under the IRS standards, and instructions on the entry lines identify the website of the U.S. Trustee Program, where the relevant IRS allowances can be found. As with all of the deductions in §707(b)(2)(A)(ii), deductions under the IRS standards are subject to the proviso that they not include “any payments for debts.”
National Standards. The IRS National Standards provide a single allowance for food, clothing, household supplies, personal care, and miscellany, depending on household size, which can be entered directly from a table supplied by the IRS. There is also a National Standard for out-of-pocket health care expenses, which provides two different per-person allowances, depending on age group: the allowance for persons 65 or older is greater than the allowance for those under 65. Accordingly, the forms direct debtors to compute the National Standard allowance for health care by first multiplying each of the two age-group allowances by the number of household members within that age group and then adding subtotals for the two age groups to obtain the total allowance.
Local Standards. The IRS Local Standards provide one set of deductions for housing and utilities and another set for transportation expenses, with different amounts for different areas of the country, depending on the size of the debtor's household and the number of the debtor's vehicles. Each of the amounts specified in the Local Standards are treated by the IRS as a cap on actual expenses, but because §707(b)(2)(A)(ii) provides for deductions in the “amounts specified under the . . . Local Standards,” the forms treat these amounts as allowed deductions.
The Local Standards for housing and utilities, as published by the IRS for its internal purposes, present single amounts covering all housing expenses; however, for bankruptcy purposes, the IRS has provided the Executive Office for United States Trustees with information allowing a division of these amounts into a non-mortgage component and a mortgage/rent component. The non-mortgage component covers a variety of expenses involved in maintaining a residence, such as utilities, repairs and maintenance. The mortgage/rent component covers the cost of acquiring the residence. The forms take no position on the question of whether the debtor must actually be making payments on a home in order to claim a mortgage/rent allowance. For homeowners with mortgages, the mortgage/rent allowance involves debt payment, since the cost of a mortgage is the basis for the allowance. Accordingly, the forms require debtors to deduct from the mortgage/rent allowance their average monthly mortgage payment, up to the full amount of the IRS mortgage/rent allowance, and instruct debtors that this average monthly payment is the one reported on the separate line of the forms for deductions of secured debt under §707(b)(2)(a)(iii). The forms allow debtors to challenge the appropriateness of this method of computing the Local Standards allowance for housing and utilities and to claim any additional housing allowance to which they contend they are entitled, but the forms require specification of the basis for such a contention.
The IRS issues Local Standards for transportation in two components for its internal purposes as well as for bankruptcy: one component covers vehicle operation/public transportation expense and the other ownership/lease expense. The amount of the vehicle operation/public transportation allowance depends on the number of vehicles the debtor operates; debtors who do not operate vehicles are given a public transportation allowance, regardless of whether they actually use public transportation. It is not clear whether the public transportation allowance may also be claimed by debtors who do make use of public transportation but also operate vehicles. The forms permit debtors to claim both a public transportation and vehicle operating allowance, but take no position as to whether it is appropriate to claim both allowances. No debt payment is involved in the vehicle operation/public transportation component of the Local Standards for transportation.
The ownership/lease component, on the other hand, may involve debt payment. Accordingly, the forms require debtors to reduce the allowance for ownership/lease expense by the average monthly loan payment amount (principal and interest), up to the full amount of the IRS ownership/lease expense amount. This average payment is as reported on the separate line of the forms for deductions of secured debt under §707(b)(2)(a)(iii). The forms take no position on the question of whether the debtor must actually be making payments on a vehicle in order to claim the ownership/lease allowance.
Other Necessary Expenses. The IRS does not set out specific dollar allowances for “Other Necessary Expenses.” Rather, it specifies a number of categories for such expenses, and describes the nature of the expenses that may be deducted in each of these categories. Section 707(b)(2)(a)(ii) allows a deduction for the debtor's actual expenses in these specified categories, subject to its requirement that payment of debt not be included. Several of the IRS categories deal with debt repayment and so are not included in the forms. Several other categories deal with expense items that are more expansively addressed by specific statutory allowances. Subpart A sets out the remaining categories of “Other Necessary Expenses” in individual entry lines. Instructions in these entry lines reflect limitations imposed by the IRS and the need to avoid inclusion of items deducted elsewhere on the forms.
Subpart A concludes with a subtotal of the deductions allowed under the IRS standards.
2. Additional statutory expense deductions
In addition to the expense deductions allowed under the IRS standards, the means test makes provision—in subclauses (I), (II), (IV), and (V) of §707(b)(2)(A)(ii)—for six special expense deductions. Each of these additional expense items is set out on a separate entry line in Subpart B, introduced by an instruction that tracks the statutory language and provides that there should not be double counting of any expense already included in the IRS deductions.
One of these special expense deductions presents a problem of statutory construction. Section 707(b)(2)A)(ii)(I) [sic], after directing the calculation of the debtor's monthly expenses under the IRS standards, states, “Such expenses shall include reasonably necessary health insurance, disability insurance, and health saving account expenses . . . .” There is no express statutory limitation to expenses actually incurred by the debtor, and so the provision appears to allow a reasonable “monthly expense” deduction for health and disability insurance or a health savings account even if the debtor does not make such payments, similar to the way in which the National Standards give an allowance for food, clothing and personal care expenses without regard to the debtor's actual expenditures. However, the statutory language might also be read as providing that the debtor's “Other Necessary Expenses” should include reasonable insurance and health savings account payments. Since “Other Necessary Expenses” are limited to actual expenditures, such a limitation could be implied here. The forms deal with this ambiguity by allowing the debtor to claim a deduction for reasonable insurance and health savings account expenses even if not made, but also require a statement of the amount actually expended in these categories, thus allowing a challenge by any party who believes that only actual expenditures are properly deductible.
Contributions to tax-exempt charities provide another statutory expense deduction. Section 707(b)(1) provides that in considering whether a Chapter 7 filing is an abuse, the court may not take into consideration “whether a debtor . . . continues to make [tax-exempt] charitable contributions.” Section 1325(b)(2)(A)(ii) expressly allows a deduction from CMI for such contributions that are “reasonably necessary” (up to 15% of the debtor's gross income), and the Religious Liberty and Charitable Donation Clarification Act of 2005 [2006] added language to §1325(b)(3) to provide the same deduction for above-median income debtors whose disposable income is determined using means test deductions. Accordingly, Subpart B of both the Chapter 7 and Chapter 13 forms includes an entry line for charitable contributions, employing the different statutory deductions allowed in each context.
The Subpart B concludes with a subtotal of the additional statutory expense deductions.
3. Deductions for payment of debt
Subpart C deals with the means test's deductions from CMI for payment of secured and priority debt, as well as a deduction for administrative fees that would be incurred if the debtor paid debts through a Chapter 13 plan.
In accord with §707(b)(2)(A)(iii), the deduction for secured debt is divided into two entry lines—one for payments that are contractually due during the 60 months following the bankruptcy filing, the other for amounts needed to retain necessary collateral securing debts in default. In each situation, the instructions for the entry lines require dividing the total payment amount by 60, as the statute directs. The forms recognize another ambiguity in this connection: “payments contractually due” might either be understood as limited to payments of principal and interest (payable to secured creditor) or, in the context of a mortgage with an escrow, might be understood as including payments of property taxes and insurance (ultimately paid to taxing bodies and insurers, but initially payable to the mortgagee). The forms require the debtor to specify whether the amount deducted includes taxes and insurance, allowing a party in interest to inquire into the deduction and raise an objection.
Priority debt, deductible pursuant to §707(b)(2)(A)(iv), is treated on a single entry line, also requiring division by 60. The instruction for this line makes clear that only past due priority debt—not anticipated debts—should be included. Thus, future support or tax obligations, and future fees that might be payable to a Chapter 13 debtor's attorney, are not included.
The defined deduction for the expenses of administering a Chapter 13 plan is allowed by §707(b)(2)(A)(ii)(III) only for debtors eligible for Chapter 13. The forms treat this deduction in an entry line requiring the eligible debtor to state the amount of the prospective Chapter 13 plan payment and multiply that payment amount by the percentage fee established for the debtor's district by the Executive Office for United States Trustees. The forms refer debtors to the website of the U.S. Trustee Program to obtain this percentage fee.
The subpart concludes with a subtotal of debt payment deductions.
4. Total deductions
Finally, the forms direct that the subtotals from Subparts A, B, and C be added together to arrive at the total of allowed deductions from CMI under the means test.
5. Additional claimed deductions
The forms do not provide for means test deductions from CMI for expenses in categories that are not specifically identified as “Other Necessary Expenses” in the Internal Revenue Manual. However, debtors may wish to claim expenses that do not fall within the categories listed as “Other Necessary Expenses” in the forms. Part VII of the Chapter 7 form and Part VI of the Chapter 13 form provide for such expenses to be identified and totaled. Although expenses listed in these sections are not deducted from CMI for purposes of the means test calculation, the listing provides a basis for debtors to assert that these expenses should be deducted from CMI under §707(b)(2)(A)(ii)(I), and that the results of the forms’ calculation should therefore be modified.
D. The chapter-specific forms
1. Chapter 7
The Chapter 7 form has several unique aspects. The form includes, in the upper right corner of the first page, a check box directing the debtor to state whether or not the calculations required by the form result in a presumption of abuse. The debtor is not bound by this statement and may argue, in response to a motion brought under §707(b)(1), that there should be no presumption despite the calculations required by the form. The check box is intended to give clerks of court a conspicuous indication of the cases for which they are required to provide notice of a presumption of abuse pursuant to §342(d).
Part I implements the provision of §707(b)(2)(D) that excludes certain disabled veterans from all means testing, making it unnecessary to compute the CMI of such veterans. Debtors who declare under penalty of perjury that they are disabled veterans within the statutory definition are directed to verify their declaration in Part VII, to check the “no presumption” box at the beginning of the form, and to disregard the remaining parts of the form.
Part I also provides an exclusion for debtors who do not have primarily consumer debts. These debtors are not subject to any of the provisions of §707(b)—including the requirement of §707(b)(2)(C) for filing a CMI statement—since §707(b) applies, by its terms, only to “an individual debtor . . . whose debts are primarily consumer debts.” However, a debtor may be found to have asserted non-consumer status incorrectly. Unless such a debtor has filed the CMI form within the 45 days after filing the case, the case could be subject to automatic dismissal under §521(i). To avoid this possibility, debtors asserting principally non-consumer status may complete the appropriate portions of Part I, claim an exclusion from the balance of the form, and promptly file the form. If it is subsequently determined that the debtor does have primarily consumer debts, the form will have been filed within the deadline established by §521(i), and can be amended to include the necessary CMI and means test information.
Part II computes CMI for purposes of the safe harbor of §707(b)(7). Section 707(b)(7) prohibits a motion to dismiss based on the means test's presumption of abuse if the debtor's annualized CMI does not exceed a defined median state income. For this purpose, the statute directs that CMI of the debtor's spouse be combined with the debtor's CMI even if the debtor's spouse is not a joint debtor, unless the debtor declares under penalty of perjury that the spouses are legally separated or living separately other than for purposes of evading the means test.Accordingly, the calculation of CMI in Part II directs a computation of the CMI of the debtor's spouse not only in joint cases, but also in cases of married debtors who do not make the specified declaration, and the CMI of both spouses in these cases is combined for purposes of determining standing under §707(b)(7).
Part III compares the debtor's CMI to the applicable state median income for purposes of §707(b)(7). It then directs debtors whose income does not exceed the applicable median to verify the form, to check the “no presumption” box at the beginning of the form, and not to complete the remaining parts of the form. Debtors whose CMI does exceed the applicable state median are required to complete the remaining parts of the form.
Part IV adjusts the CMI of a married debtor, not filing jointly, whose spouse's CMI was combined with the debtor's in Part II. The means test itself does not charge a married debtor in a non-joint case with the income of the non-filing spouse, but only with payments regularly made by that spouse for the household expenses of the debtor or the debtor's dependents, as provided in the definition of CMI in §101(10A). Accordingly, Part IV calls for the combined CMI of Part II to be reduced by the amount of the non-filing spouse's income that was not regularly paid for the household expenses of the debtor or the debtor's dependents. The form requires that the alternative uses of the spouse's income be specified.
Part V of the form provides for a calculation of the means test's deductions from the debtor's CMI, as described above in §C.
Part VI provides for a determination of whether the debtor's CMI, less the allowed deductions, gives rise to a presumption of abuse under §707(b)(2)(A). Depending on the outcome of this determination, the debtor is directed to check the appropriate box at the beginning of the form and to sign the verification in Part VIII. Part VII allows the debtor to claim additional deductions, as discussed above in §C.5.
2. Chapter 11
The Chapter 11 form is the simplest of the three, since the means-test deductions of §707(b)(2) are not employed in determining the extent of an individual Chapter 11 debtor's disposable income. Section 1129(a)(15) requires payments of disposable income “as defined in section 1325(b)(2),” and that paragraph allows calculation of disposable income under judicially-determined standards, rather than pursuant to the means test deductions, specified for higher income Chapter 13 debtors by §1325(b)(3). However, §1325(b)(2) does require that CMI be used as the starting point in the judicial determination of disposable income, and so the Chapter 11 form requires this calculation (in Part I of the form), as described above, together with a verification (in Part II).
3. Chapter 13
Like the Chapter 7 form, the form for Chapter 13 debtors contains a number of special provisions. The upper right corner of the first page includes check boxes requiring the debtor to state whether, under the calculations required by the statement, the applicable commitment period under §1325(b)(4) is three years or five years and whether §1325(b)(3) requires the means-test deductions to be used in determining the debtor's disposable income. The check box is intended to inform standing trustees and other interested parties about these items, but does not prevent the debtor from arguing that the calculations required by the form do not accurately reflect the debtor's disposable income.
Part I is a report of income to be used for determining CMI. In the absence of full payment of allowed unsecured claims, §1325(b)(4) imposes a five-year applicable commitment period—rather than a three-year period—if the debtor's annualized CMI is not less than a defined median state income. For this purpose, as under §707(b)(7), §1325(b)(4) requires that the CMI of the debtor's spouse be combined with the debtor's CMI, but, unlike §707(b)(7), no exception is made for spouses who are legally separated or living separately. Accordingly, the report of income in Part I directs a combined reporting of the income of both spouses in all cases of married debtors.
Part II computes the applicable commitment period by annualizing the income calculated in Part I and comparing it to the applicable state median. The form allows debtors to contend that the income of a non-filing spouse should not be treated as CMI and permits debtors to claim a deduction for any income of a non-filing spouse to the extent that this income was not regularly paid for the household expenses of the debtor or the debtor's dependents (with the alternative uses specified). The debtor is directed to check the appropriate box at the beginning of the form, stating the applicable commitment period. The check box does not prevent a debtor from proposing an applicable commitment period of less than three or five years in conjunction with a plan that pays all allowed unsecured claims in full.
Part III compares the debtor's CMI to the applicable state median, allowing a determination of whether the means-test deductions must be used, pursuant to §1325(b)(3), in calculating disposable income. For this purpose, since §1325(b)(3) does not provide for including the income of the debtor's spouse, the form directs a deduction of the income of a nonfiling spouse that was not contributed to the household expenses of the debtor or the debtor's dependents. Again, the debtor is directed to check the appropriate box at the beginning of the form, indicating whether the means test deductions are applicable. If so, the debtor is directed to complete the remainder of the form. If not, the debtor is directed to complete the verification in Part VII but not complete the other parts of the form.
Part IV provides for calculation of the means-test deductions provided in §707(b)(2), described above in §C, as incorporated by §1325(b)(3) for debtors with CMI above the applicable state median.
Part V provides for four adjustments required by special provisions affecting disposable income in Chapter 13. First, §1325(b)(2) itself excludes from the CMI used in determining disposable income certain “child support payments, foster care payments, [and] disability payments for a dependent child.” Because payments of this kind are included in the definition of CMI in §101(10A), a line entry for deduction of these payments is provided. Second, a line entry is provided for deduction of contributions by the debtor to certain retirement plans, listed in §541(b)(7)(B), since that provision states that such contributions “shall not constitute disposable income, as defined in section 1325(b).” Third, the same line entry also allows a deduction from disposable income for payments on loans from retirement accounts that are excepted from the automatic stay by §362(b)(19), since §1322(f) provides that for a “loan described in section 362(b)(19) . . . any amounts required to repay such loan shall not constitute ‘disposable income’ under section 1325.” Finally, §1325(b)(3) requires that deductions from income for above-median income debtors be determined not only in accordance with the means test deductions, set out in subparagraph (A) of §707(b)(2), but also in accordance with subparagraph (B), which sets out the grounds for rebutting a presumption of abuse based on a demonstration of additional expenses justified by special circumstances. Part V includes an entry line for such additional expenses, with a warning that the debtor will be required (as provided by §707(b)(2)(B)) to document the expenses and provide a detailed explanation of the special circumstances that make them reasonable and necessary.
The Chapter 13 form does not provide a deduction from disposable income for the Chapter 13 debtor's anticipated attorney fees. No specific statutory allowance for such a deduction exists, and none appears necessary. Section 1325(b)(1)(B) requires that disposable income contributed to a Chapter 13 plan be used to pay “unsecured creditors.” A debtor's attorney who has not taken a security interest in the debtor's property is an unsecured creditor who may be paid from disposable income.
Part VI allows the debtor to declare expenses not allowed under the form without deducting them from CMI, as described above in §C.5.
(Added Oct. 17, 2005; amended Jan. 1, 2008.)
For Committee Notes on Rules—2005 for form 22B, see note set out under form 22A.
For Committee Notes on Rules—2005–2008 for form 22B, see note set out under form 22A.
(Added Oct. 17, 2005; amended Oct. 1, 2006; Jan. 1, 2008.)
For Committee Notes on Rules—2005 for form 22C, see note set out under form 22A.
For Committee Notes on Rules—2006 Amendment for form 22C, see note set out under form 22A.
For Committee Notes on Rules—2005–2008 Amendment for form 22C, see note set out under form 22A.
(Added Oct. 17, 2005; amended Oct. 1, 2006; Dec. 1, 2007.)
The form is new. Sections 727(a)(11) and 1328(g)(1), which were 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), require the debtor to complete an instructional course concerning personal financial management as a condition for receiving a discharge. The completed form, when filed by the debtor, will signal the clerk that this condition has been satisfied.
The form is amended to direct each individual debtor, including both spouses in a joint case, to file a separate certification and to provide the certificate number of the certificate of completion issued to the debtor by the approved personal financial management counselor. The form also is amended to include the deadlines for filing the certification in cases under chapters 7 and 13 and to instruct the debtor that the form is not to be used to file the certificate provided by the debtor's prepetition credit counselor.
[The 2005–2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.]
The form was issued in 2005. Sections 727(a)(11), 1141(d)(3) and 1328(g)(1), which were 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), require individual debtors to complete an instructional course concerning personal financial management as a condition for receiving a discharge. The completed form will signal the clerk that this condition has been satisfied. Each individual debtor, including both spouses in a joint case, must file a separate certification and provide the certificate number of the certificate of completion issued to the debtor by the approved personal financial management counselor. Instructions are included that state the deadlines for filing the certification in chapter 7, chapter 11 in which §1141(d)(3) applies, and chapter 13 cases, and remind the debtor that the form is not to be used for filing a certification of prepetition credit counseling.
(Added Oct. 17, 2005; amended Dec. 1, 2007.)
This form is new. Rule 8001, as amended in 2005, requires that any certification of an appeal, bankruptcy court judgment, order, or decree directly to the United States Court of Appeals by all the appellants and appellees (if any) acting jointly be filed on this form.
[The 2005–2007 Committee Note incorporates the Committee Note previously published in 2005.]
This form was issued in 2005. Rule 8001 requires that any certification of an appeal, bankruptcy court judgment, order, or decree directly to the United States Court of Appeals by all the appellants and appellees (if any) acting jointly be filed on this form.