Chermack Law | Category Archives: Bankruptcy Law

Exemption from the means test for non-consumer debts

Posted on August 9, 2018 by Elizabeth Rosar Chermack

All debtors are not required to pass the means test.

11 U.S. Code Section 707(b) allows for Chapter 7 bankruptcy cases to be dismissed or converted to Chapter 11 or Chapter 13 bankruptcy if the Chapter 7 case if the Debtor’s debts are “primarily consumer debts” and if granting relief would be an “abuse” of the bankruptcy code.

If the debts are not primarily consumer debts, then typically the Debtor is not required to complete and pass the means test; even if their income is above the median income.

What is a consumer debt for bankruptcy purposes? 11 U.S. Code Section 101(8) provides that consumer debt is debt incurred by an individual for a personal, family, or household purpose. A non-consumer debt, for this exemption from the means test, typically is a business-related debt. If a debtor owned their own business and incurred a debt for that business, then that debt may be a non-consumer debt for purposes of this means test exemption.

In order to figure out if this exemption from the means test applies in your case, the Debtor will need to be able to categorize each of their debts as a “consumer” or “non-consumer” debt. It is also important to be able to document why a specific debt is a non-consumer debt. From there, the Debtor and their attorney will determine whether their debts are “primarily” consumer debts or not.

It can take quite a bit of documentation to successfully prove that this exemption from the means test applies in your bankruptcy case. It is still less documentation, though, than you would likely have to provide if you were required to submit the long form means test.

Elizabeth Rosar Chermack is a bankruptcy lawyer with an office in Burnsville, and can help you analyze whether an exemption to the bankruptcy means test applies to you. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

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Exemption from the means test for qualifying disabled veterans

Posted on June 25, 2018 by Elizabeth Rosar Chermack

Not all debtors are required to pass the means test. For example, 11 U.S. Code Section 707 provides that a disabled veteran who incurred the debts primarily while on active duty or performing a homeland defense activity may be exempt from the means test.

In order to qualify for this exemption from the means test, the Debtor must document that they meet the statutory definition of a disabled veteran. Additionally, the Debtor will need to provide documentation of the dates during which their debts were incurred (and the amount of each debt). Then the Debtor will need to document whether they were on active duty or performing a homeland defense activity during the time that those debts were incurred.

Elizabeth Rosar Chermack is a Burnsville Bankruptcy Attorney, and can help you analyze whether an exemption to the bankruptcy means test applies to you. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

Updated means test numbers – effective April 1, 2018

Posted on March 21, 2018 by Elizabeth Rosar Chermack

New means test numbers are going into effect on April 1, 2018. The median incomes for Minnesota have increased. As a result, it may now be easier for some people to qualify for Chapter 7 bankruptcy.

Below is a chart that shows the median incomes for means test purposes for bankruptcy cases filed in Minnesota effective April 1, 2018:

*Add $8,400 for each individual in excess of 4.

Note: Your income for means test purposes is determined by all income received in the 6 full months prior to filing your case. We figure out the amount of gross income that you received during those 6 months and then multiply it by 2; if the total is under the “Gross Annual Income” listed in the chart above for your household size, then there will likely not be a means test issue.

If your case is filed any time between July 1 and July 31, for example, then all gross income received from January 1 through June 30 (relevant months: January, February, March, April, May, June) will be used to calculate your gross income for means test purposes.

Elizabeth Rosar Chermack is a Minnesota Bankruptcy Attorney, and can help you analyze whether bankruptcy is the right choice for you. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

Bankruptcy and the Means Test

Posted on February 16, 2018 by Elizabeth Rosar Chermack

In my previous posts I discussed some of the distinctions between Chapter 7 and Chapter 13 bankruptcy. The means test is an important element to both Chapter 7 and Chapter 13 bankruptcy (unless you are exempt from the means test). If you do not pass the means test, you will not qualify for a Chapter 7 bankruptcy. The means test determines the length of time of your Chapter 13 plan in a Chapter 13 bankruptcy.

When new means test numbers are released, I tend to post about them on my blog. The means test numbers can be confusing. If your income is above the median income for your household size, it does not necessarily mean that you won’t qualify for a Chapter 7 bankruptcy. It also does not necessarily mean that you will be in a 5-year (instead of a 3-year) Chapter 13 plan.

If your income is above the median income for your household size, then in order to determine:

the length of your payment plan in a Chapter 13; or
whether you qualify for a Chapter 7 bankruptcy

you will need to submit the “long form” means test. The long form means test is based on IRS standards. Additionally, certain expenses in the means test are based on your actual expenses.

The means test can be very complicated. The forms themselves are not overly complicated, but the laws and standards behind the forms are. If you are submitting the long form means test, your attorney will likely require a large amount of documentation from you. Your attorney is not requiring that paperwork because they think it’s fun or because they are nosey; they are hoping to help you have the best possible chance at passing the means test.

Elizabeth Rosar Chermack is a Minnesota Bankruptcy Attorney, and can help you analyze whether Chapter 7 or Chapter 13 bankruptcy is the right choice for you. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

Chapter 13 Bankruptcy: Payment Plan

Posted on December 14, 2017 by Elizabeth Rosar Chermack

In a previous post, I stated that many people who are considering bankruptcy are hoping to file a Chapter 7 bankruptcy.

A Chapter 7 bankruptcy isn’t the best fit for all bankruptcy filers, though. In this post I will explain the basics of a Chapter 13 bankruptcy.

There are similarities between Chapter 13 bankruptcy and Chapter 7 bankruptcy. In both cases, you have to file a bankruptcy petition with the Court and you need to meet with a bankruptcy trustee as part of the process.

A Chapter 13 requires you to file additional paperwork with the Court: you need to file a Chapter 13 plan. In the Chapter 13 plan, you lay out your plan for paying back some or all of your debts during the next 3-5 years. In order to draft your Chapter 13 plan, your attorney will need information about your income and expenses, as well as your debts and assets.

The kinds of debts and amounts of debts that you have (priority debts, secured debts, unsecured debts), and your assets (Would any of them be non-exempt in a Chapter 7 bankruptcy?), as well as your income and expenses, will determine your proposed Chapter 13 payment.

Additionally, whether or not you pass the means test will determine whether your Chapter 13 plan will be a three-year or a five-year plan.

Your Chapter 13 Plan will also need to be confirmed (approved) by the bankruptcy court.

Choosing between Chapter 7 and Chapter 13 bankruptcy: liquidation and exemptions

Posted on September 25, 2017 by Elizabeth Rosar Chermack

Most people who come into my office with questions about bankruptcy and resolving their debts are familiar (on some level) with Chapter 7 bankruptcy. For most people who are considering filing bankruptcy, a Chapter 7 bankruptcy is the goal.

A Chapter 7 bankruptcy is sometimes called a “liquidation bankruptcy” but the reality is that generally people do not have things with a whole lot of value to liquidate.

When you file bankruptcy, everything that you own is “frozen” and becomes part of the bankruptcy estate. In theory, everything in the bankruptcy estate is sold and then the funds from the sale are divided up amongst your creditors. In reality, if everyone who filed bankruptcy lost EVERYTHING, there would be a lot of issues. For example, people who filed bankruptcy:

wouldn’t have vehicles to get to/from work;
wouldn’t have clothing (it’s hard to keep a job and function in society if you don’t have clothes); and
might not have a place to live.

Luckily, the bankruptcy code (and Minnesota law) protects people who file bankruptcy by allowing them to exempt certain things from the bankruptcy estate. When things are exempted from the bankruptcy estate, it means that you ultimately get to keep those assets.

As I stated above, for most people who are looking at filing bankruptcy, a Chapter 7 bankruptcy is the goal. Why is that?

It’s faster than a Chapter 13 bankruptcy; once a Chapter 7 case is filed – as long as everything goes smoothly – it is done in about 3 months.
Unlike in a Chapter 13 bankruptcy, you do not have to make monthly payments towards your debts.

Why would someone choose to file a Chapter 13 bankruptcy? Here are some of the possible reasons:

They couldn’t pass the means test
They have nondischargeable debts that they wanted to pay through a Chapter 13 plan
They had assets that wouldn’t be exempt in a Chapter 7 bankruptcy
They aren’t eligible for a Chapter 7 discharge at this time due to the date they last filed bankruptcy
They’re using the Chapter 13 payment plan to catch up on payments on a secured debt (car loan, mortgage) that they fell behind on

Elizabeth Rosar Chermack is a Burnsville Bankruptcy Attorney, and can help you analyze whether Chapter 7 or Chapter 13 bankruptcy is the right choice for you. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

New means test numbers – effective May 1, 2017

Posted on April 26, 2017 by Elizabeth Rosar Chermack

On April 1, 2017, new median incomes for means test purposes took effect. I posted about it here: http://chermacklaw.com/updated-means-test-numbers-effective-april-1-2017/

On May 1, 2017, new IRS expense figures and Administrative Expenses Multipliers will take effect. You can find more information about this here:

https://www.justice.gov/ust/means-testing/20170501

Elizabeth Rosar Chermack is a Minnesota bankruptcy lawyer with an office located in Burnsville. Her office is close to Savage, Shakopee, Apple Valley, Farmington, and Lakeville. She can represent you in your bankruptcy matter. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Elizabeth Rosar Chermack, Attorney at Law, is a debt relief agency helping people to file for bankruptcy relief under the bankruptcy code.

Updated means test numbers – effective April 1, 2017

Posted on March 21, 2017 by Elizabeth Rosar Chermack

New means test numbers are going into effect on April 1, 2017. The median incomes for Minnesota have increased. As a result, it may now be easier for some people to qualify for Chapter 7 bankruptcy.

Here is a link to the updated median incomes for the means test:

https://www.justice.gov/ust/eo/bapcpa/20170401/bci_data/median_income_table.htm

Elizabeth Rosar Chermack is a Burnsville Bankruptcy Attorney, and can represent you in your bankruptcy matter. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Elizabeth Rosar Chermack, Attorney at Law, is a debt relief agency helping people to file for bankruptcy relief under the bankruptcy code.

Negotiating with Creditors

Posted on November 28, 2016 by Elizabeth Rosar Chermack

What do you do if you cannot afford to pay your creditors back in full, but it also doesn’t make sense to file bankruptcy? For example, if you owe $2,000 to a creditor, but you can’t afford to pay them in full – what do you do? In that situation, it really wouldn’t make sense to file bankruptcy, but that $2,000 debt is still out there and you need to figure out a plan so you can move forward with your life.

In that case, you are most likely going to need to negotiate with the creditor. Many times people are so overwhelmed by their debts (especially when they know they cannot afford to pay them in full), that they try to put off dealing with them. That is very understandable; especially when you have tried to contact your creditors on your own and the creditors aren’t willing to work with you. It can also be difficult to negotiate with a creditor once they’ve started garnishing your wages. Some creditors will refuse to negotiate once they have a wage garnishment in place. It can also be difficult to negotiate with a creditor on your own, because unfortunately many creditors and collections agencies can be quite intimidating when you are talking with them on the phone about your own debts.

If you are in a situation where you think it makes sense to consider negotiating with your creditors, it might make sense to consult with an attorney about your options, so you can figure out a plan to deal with your debts and move forward with your life. You will also want to talk with your “tax person” (your accountant or CPA) about what impact negotiating with your creditors may have on your tax liability.

Elizabeth Rosar Chermack is a Burnsville Attorney, and can discuss your options with you in regards to negotiating with your creditors. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

If I file bankruptcy in Minnesota, can I keep my car?

Posted on December 1, 2014 by Elizabeth Rosar Chermack

When potential clients ask me questions about filing bankruptcy, one of their first few questions to me usually has to do with whether they can keep their car if they file bankruptcy.

In order to answer that question, I need to get more information from them:

1) What other assets do they have? This will help me figure out whether we will be using the Minnesota exemptions or the federal exemptions. I explain the difference between the two types of exemptions during an initial consultation.

2) How much is their car worth? To figure out the value of their car, I have them look up the private party (not trade-in or retail value) on the Kelley Blue Book website.

3) Do they owe money on a car loan? If yes, which bank do they owe, AND how much do they owe? The reason for this question is two-fold. First, it helps me determine how much equity (if any) they have in the car. Second, we can talk about what might happen with their car loan after they file bankruptcy.

I can’t make any promises to potential clients or to blog readers, but I can say that clients do not typically lose their car after filing bankruptcy unless they have wanted to surrender (lose/get rid of) their car. Now if someone called my office and they owned (outright – no loan against it) a brand new car, they could very well “lose” their car by filing bankruptcy. However, it is not very common for people in that situation to be thinking about filing bankruptcy.

Elizabeth Rosar Chermack is a Minnesota Bankruptcy Attorney, and can represent you in your bankruptcy matter. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Elizabeth Rosar Chermack, Attorney at Law, is a debt relief agency helping people to file for bankruptcy relief under the bankruptcy code.