No commitment to future repayment efforts, job seeking outside your field, or agreement to extended payment plans required to discharge student loans in bankruptcy cases.

Discharging student loans in bankruptcy: Susan Krieger is a 53 year old woman living in rural Illinois with her daughter and her 75 year-old mother.  She has not worked since 1986, and between 1978 and 1986 never earned more than $12,000 a year.  In 2001, she incurred some $26,000 in student loans to receive training as a paralegal, but never found work in that field despite job search efforts.  She is too poor to move, lacks internet access, and her 10 year-old car needs repairs.  Her mother and daughter receive only a few hundred dollars a month in government assistance.  In 2012, she filed a Chapter 7 bankruptcy case and sought a discharge of her student loans.

In the 7th Circuit (which includes Illinois), as in the 9th Circuit (which includes California), the standard for determining the dischargeability of student loans in bankruptcy is the so-called “Brunner Test,” which requires:

1. The debtor cannot maintain, based on current income and expenses, a minimal standard of living for the debtor and dependents if forced to pay off student loans;
2. Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and
3. The debtor has made good faith efforts to repay the loans.

In Ms Krieger’s case, the lender agreed that requirement #1 was met, but argued that #2 and #3 were not.  The Bankruptcy Court found in Ms Krieger’s favor.  The lender appealed to the U.S. District Court, which reversed.  On April 10, 2013, the Seventh Circuit reversed the District Court decision and reinstated that of the Bankruptcy Court (Susan M. Krieger v. Educational Credit Management Corp, 7th Cir., 2013).

In reaching its decision, the Court first held that the District Court had erred in holding that “good faith” (requirement #3) entails commitment to future efforts to repay.  If this were true, “no educational loan could ever be discharged, because it is always possible to pay in the future should prospects improve.”  The Court pointed out that the Bankruptcy Code allows for discharge where there is “undue hardship,” and one ought not allow caselaw such as Brunner to supersede the statute itself.

As to requirement #2, the Court held that Ms Krieger need not be required to seek employment in fields paying less than paralegal work, nor need she be required to accept a 25-year payment plan.  The likely indefinite persistence of her circumstances is a finding of fact made by the Bankruptcy Court judge, and without clear error, the Court declined to overturn that finding.

As a 7th Circuit case, Krieger has no binding authority over 9th Circuit courts.  However, it represents a reason to be optimistic that as people bring more and more cases seeking to discharge student loans in bankruptcy, we may see a gradual relaxing of the very harsh requirements of the Brunner test.

Section 109(e) of the Bankruptcy Code provides what are known as the “debt limits” for Chapter 13 bankruptcy cases. It provides that only a person whose debts are less than a certain amount may file a Chapter 13 case.

As of April 1, 2013, those limits have changed. For cases filed April 1, 2013 and later, the limits are now $1,149,525.00 for secured debt (up from $1,081,400.00) and $383,175.00 for unsecured debt (up from $360,475.00).

Usually, secured debts are mortgages and car loans, which are “secured” by the house or car. Unsecured debts are basically everything else. If you have debts in either category over the limits, you are ineligible to file a Chapter 13 Case.

The 109(e) debt limits play somewhat more of a role here in the San Francisco Bay Area than they do in other parts of the country, due to the comparably high housing values and mortgages. This increase in the limit should prevent a significant number of people from being forced into a different chapter.

If you are considering filing a bankruptcy case, but have debts that are still higher than the new limits, you should speak with a qualified attorney about your alternatives.

A debtor-friendly decision on 401(k) contributions in bankruptcy came out of Washington state last week, but it requires some background to explain:

The Chapter 13 Means Test

One of the factors determining the size of your Chapter 13 Plan payments is your income; the more money you make, the more money your unsecured creditors need to be paid. The process of arriving at that number is called the Chapter 13 Means Test.

In the Chapter 13 Means Test, you start by taking your average income for the past 6 complete months. Then you subtract amounts that the government thinks people nationally and in your area spend on necessities, as well as amounts that you specifically spend on necessities (e.g. income tax, health insurance, mortgage, etc.). The result is your Disposable Monthly Income (“DMI”), the minimum amount that, based on this analysis, your unsecured creditors must receive per month through your plan.

In re Parks: Harsh Treatment for 401(k) Contributions in Bankruptcy

In August 2012, the Bankruptcy Appellate Panel (“BAP”) for the Ninth Circuit published an opinion in In re Parks. In Parks, the question was: Can a person’s ongoing 401(k) contributions be subtracted from income when calculating DMI? The BAP answered no, holding that post-petition 401(k) contributions are NOT excluded from the bankruptcy estate. Amounts that would otherwise have gone into a 401(k) must be paid to creditors, and cannot be deducted from income on the Means Test.

In re Bruce: Taking the Sting Out of Parks

In December 2012, the Bankruptcy Court for the Western District of Washington revisited the subject of 401(k) contributions and the Chapter 13 Means Test in the case of In re Bruce, and found favorably for the Debtor in two ways.

The Bruce Court’s first holding has to do with the different treatment of above and below-median debtors. You only have to go through the full Means Test process described above if your average income is above the median income for a household of your size in your state. If your income is below the median, then you are assumed not to have any disposable monthly income.

The Court held that the Parks prohibition on deducting post-petition 401(k) applies only to above-median debtors. For below-median debtors, whether those contributions are reasonable and necessary is still a question of fact for the court. And this Court, noting that modernly people primarily save for retirement not through pensions but through 401(k)s, held that these contributions were in fact reasonable and necessary.

Secondly, the Court held that when calculating income for the past 6 months, a debtor may subtract 401(k) contributions made during those 6 months. Thus, even though you can’t take future 401(k) contributions into account when calculating the Means Test, you can take past contributions in account. (Indeed, calculating it in this way may be much better for debtors as it may enable more of them to qualify for 3-year plans. But that’s a subject for a different post.)

This is a debtor-friendly decision that takes some of the sting out of Parks while still being consistent with it. As a Western District of Washington case, it’s not binding on the Northern District of California, where I practice, but the reasoning could very well be applied to cases here.  The opinion can be found here.

The appropriateness of a type of case to your particular situation is the single most important determination in filing a bankruptcy case.  From the moment you begin your conversation, your bankruptcy lawyer will be thinking about whether your situation is Chapter 7 or Chapter 13.

By numbers alone, Chapter 7 cases are more common.  They’re what you typically think of when you think about bankruptcy cases.  You file your case, and (usually) three months later, the Court issues an Order “discharging” your unsecured, non-priority debts (e.g. credit cards, personal loans, medical bills, payday loans, deficiencies on repossessed cars, second mortgages on foreclosed homes).  “Priority” debt (e.g. recent income tax) is not discharged; you still owe it at the conclusion of your case.  With secured debt (usually car loans or mortgages), you have two basic choices: keep the car or house, and keep the debt, or get rid of the car or house and get rid of the debt.  (“Redemption” is a third option, but it’s not practical in most consumer cases.)

However, in Chapter 7, if you have certain types of assets over certain amounts (which varies from state to state), the Trustee is empowered to liquidate those assets and distribute them among your creditors.

Additionally, in Chapter 7, you have to pass something called the “Means Test.”  What the Means Test basically comes down to is, if you make too much money, you can’t file Chapter 7 and have to go to Chapter 13 instead.

Chapter 13 is quite different from Chapter 7.  You propose a Plan to the Court (which the Court either rejects or “confirms”) saying you will pay a certain amount every month to a Trustee for the next five (or sometimes three) years.  The Trustee takes that money and pays off certain debts in full, such as mortgage arrears, car loan balances, and recent taxes.

As to the aforementioned unsecured, non-priority debt such as credit cards, the Trustee pays something to those creditors too, but the amount is usually less than 100%.  Whether your unsecured creditors get 1%, 100%, or somewhere in between is determined by several factors, the most significant of which is income (as determined by the Chapter 13 Means Test, a cousin to the Chapter 7 version).  Upon successful completion of your Plan, any remaining unpaid unsecured debt is discharged.

So if Chapter 13 lasts so long, and only provides a partial discharge, why would anyone chose it over Chapter 7?

For starters, people who stand to lose property in a Chapter 7 case might opt for Chapter 13 instead because you never lose property in Chapter 13.  Another reason might by that you don’t pass the means test.  However, for most Chapter 13 filers, Chapter 13 is simply better for them.  For example, if you’re behind on your mortgage payments, a Chapter 13 case enables to you to get caught up those arrears over 5 years, at 0% interest, during which time you’re protected by the Court from foreclosure.

Here’s another benefit: If you have two mortgages, and your house is worth less than the first mortgage (i.e. you are “under water” on the first), in Chapter 13 you can “strip” that second mortgage.  The second mortgage then gets treated just like other unsecured debt.

If you’re behind on your car payments, Chapter 13 gives you five years to pay off the loan in full, during which time you’re protected by the Court from repossession.  And if you’ve had the car for more than two and a half years, you can do a “cram down.”  That means you don’t pay what you owe under the contract; instead you pay what the car is worth.

If you have recent, non-dischargeable tax debt, Chapter 13 gives you five years to pay that off, too.

Thus, generally speaking, lower income, few assets, and mostly dischargeable debts are factors pointing toward a Chapter 7 case.  Higher income, mortgage arrears, and the possibility of a lien strip or a cram down are factors pointing toward a Chapter 13 case.  People trying to stop foreclosures are almost always Chapter 13 cases.

Of course, no one’s actual situation is this simple.  People’s lives are complex, and there are many more factors than the ones I’ve briefly outlined here.  It is your lawyer’s job to consider and balance those factors and to determine which Chapter (if any) stands to provide you the greater benefit.  Regardless of the complexity of your situation, at the end of an initial consultation your lawyer should be able to recommend one Chapter or the other to you.

See our other blog post for more information on the difference between Chapter 7 and Chapter 13 bankruptcy.

“Chapter 20” is the term commonly applied to situations where a debtor files a Chapter 7 bankruptcy case and then some time shortly after receiving a discharge, files a Chapter 13 case.

Why might someone do this? Here’s a common hypothetical: A debtor cannot file Chapter 13 because her unsecured debts exceed the $360,475 Chapter 13 limit. Instead, she files a Chapter 7 case and receives a discharge, reducing her unsecured debts to $0. However, she still has a second mortgage on her house, and the first mortgage is “under water.” That second mortgage was not stripped because lien stripping is not available in Chapter 7. Can she then file a subsequent Chapter 13 case (for which she now qualifies) in order to strip the second mortgage?

Some courts have responded with a no, agreeing with trustees that § 1325(a)(5)(B)(i)(I), read in conjunction with § 506(d), makes lien stripping dependent on the debtor receiving a discharge. However, this debtor has already received a discharge in her Chapter 7 case and is not entitled to a second one. Ipso facto, no discharge, no lien strip.

In an opinion issued on October 15, 2012 the case of In re North, Judge Efremsky of the United Bankruptcy Court for the Northern District of California came down on the other side of the argument, finding that permanent lien stripping is dependent not on receipt of a discharge, but on completion of the Chapter 13 Plan’s payments.

Thus, since the Chapter 7 case extinguishes the debtor’s personal liability for the second mortgage but not the creditor’s in rem rights (i.e. the lien), since and those in rem rights can be restructured in Chapter 13 (i.e. the lien stripping, which is permissible under the rationale above), at the completion of the debtor’s Plan the creditor is question has no recourse against either the person or the property. The is, for all effective purposes, gone.

Thus Chapter 20 cases, and the ability to strip liens within them, remain a powerful tool in the hands of debtors, especially in Northern California where the regularity of million-plus mortgages puts many ordinary homeowners in danger of running afoul of the debt limits. However, Chapter 20 cases are rife with other potential pitfalls, not least of which are bad faith issues, and so you should make sure you find a lawyer who knows what he or she is doing. Additionally, the Chapter 13 Trustee in the North case has indicated that she intends to appeal the decision.