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Topic #7:

Keywords: surrender . IRS standards . means test allowances . means test .

Secured Debts: Expense allowances for collateral that is to be surrendered (see also 9A)

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Case Summary In re Ellringer, 370 B.R. 905, Bankr.D.Minn., 06/20/07, 7, N/A

In re Ellringer, 370 B.R. 905 (Bankr.D.Minn. 2007)

Topics

  • 7. Secured Debts: Expense allowances for collateral that is to be surrendered (see also 9A)

    Form 22A Line: 42 :: Form 22C Line: 47

    Case Type: A - Expense Allowance allowed for items to be surrendered (Walker)



  • 26. Household Size: Live-in Relatives & Roommates

    Form 22A Line: 14b :: Form 22C Line: 16b

    Case Type: D - Roommate as household member

    The Bankruptcy Code does not define what constitutes a household. 11 U.S.C. § 101(39A)(A) defines the "median family income" as "the median family income both calculated and reported by the Bureau of the Census." This calculation uses the Census Bureau's definition of household. Thus, the Census Bureau provides the most appropriate definition of "household" for use in the means test because it ensures that a household in the means test 911*911 Will have the same number of members as the calculation of median family income. The Census Bureau defines "household" as "all of the people, related and unrelated, who occupy a housing unit." U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY (2004), http://www.census.gov/population/ www/cps/cpsdef.html. A housing unit is a house, apartment, group of rooms or single room that is intended for occupancy as a separate living quarters. Id. Households may be either family or nonfamily. Id. Family households include the householder and all the other people in the living quarters who are related to the householder by birth, marriage, or adoption. Id. A nonfamily household consists of a householder living alone, or a householder who shares the home exclusively with people to whom he or she is not related. Id. If Congress had intended to limit household size to only household members related by blood, marriage or adoption, it could have done so by saying "in the case of a debtor in a family of 2. . . ." However, in recognizing that there may be reasons why two unrelated, non-dependent individuals should be treated as a household for purposes of the means test, Congress elected to use the word "household" instead of the word "family."

    The U.S. Trustee advocates using the Internal Revenue Manuel's definition of "household." The IRM does not define household, but indicates that the number of persons allowed under the national standard expenses should generally be the same as the number of dependents on the taxpayer's latest income tax return. INTERNAL REVENUE SERVICE, INTERNAL REVENUE MANUAL, § 515.1.7 (2004), available at http://www.irs.gov/irm/part5/ch15s01. html # doe182366. I decline to use the IRM definition because it applies to the allowed expenses after the debtor is already found to have above median income. The IRM definition is not used to decide the threshold question of whether a debtor has above median income for her household size.

Means Test > Expenses > Secured Debts > Loan Expense Deduction > Surrender

Secured Debts: Expense allowances for collateral that is to be surrendered (see also 9A)

42 Cases , IssueID 7

Ch 7 Means Test
Form 22A, Line 42
Ch 13 Means Test
Form 22C Line 47

Topic Description:

The means test Forms 22A (Chapter 7) and 22C (Chapter 13) allow you to deduct the full amount of secured debt payments you are currently making at the time you file your bankruptcy petition.

The question arises, what if you plan to surrender that property during the course of your bankruptcy. This issue is particularly relevant in Chapter 13 cases, where the case continues on for 3 to 5 years, and your ability to pay in the future is one of the elements the court must consider in confirming a proposed Chapter 13 plan.

In a Chapter 7 case, the issue may turn on whether the debtor has actually surrendered the property yet -- that is, if the payments are still "contractually due" at the time the means test form is filed.

This timing question can become relevant because a trustee must make the "abuse" determination (based on the means test form) within 10 days after the section 341 meeting, Meanwhile, the debtor has up to 30 days from the date of the original filing (or the date of the 341 meeting if that comes first) to state whether they intend to surrender the property, and then gets another 30 days after that to actually act on their intentions. Thus, at the time of the abuse determination, it is possible that the debts are still "contractually due."

All of this may be a moot point in many courts, however, because a judge can still find a debtor ineligible to file if the judge thinks there is an ability to pay. Some courts have allowed the deduction, under Sec. 707(b)(2), then ruled that the surrender of the property (and the removal of that debt) means that the debtor has enough funds to pay his unsecured debts and therefore will refuse to grant a discharge of those debts based on the "totality of the circumstances" Sec. 707(b)(3).

Lines of Cases:

A:

Expense Allowance allowed for items to be surrendered (Walker)

B::

Expense allowance NOT allowed for items to be surrendered (Skaggs)

C:

Expense allowance allowed unless property has ACTUALLY been surrendered (Singletary)

D:

No "phantom expenses allowed"

E:

"Everything else..."

Topic Background / Overview:

Section 707(b)(2)(A)(iii) provides: “[t]he debtor's average monthly payments on account of secured debts shall be calculated as the sum of ...(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition.”

Section 704(b)(1) provides that the United States Trustee “shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, file with the court a statement as to whether the debtor’s case would be presumed to be an abuse...”.

Section 521(a)(2)(A) requires a debtor to file a statement of intention within 30 days of the earlier of the petition date and the date of the meeting of creditors.

Section 521(a)(2)(B) then requires that the debtor perform that expressed intention within 30 days after filing the statement
of intention.

From In re Perelman, ED NY October, 30 2009

**************************

In delineating the nature and extent of secured debt payments deductions under the Means-Test, § 707(b)(2)(A)(iii) reads in full as follows:

[t]he debtor's average monthly payments on account of secured debts shall be calculated as the sum of

(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition; and

(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under chapter 13 of this title, to maintain possession of the debtor's primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor's dependents, that serves as collateral for secured debts;

divided by 60.

11 U.S.C. § 707(b)(2)(A)(iii).

There is a split of the authority in the decided cases on the meaning of this provision.

The split revolves over whether this provision reflects the debtor's present financial position (that is, at the time a debtor files the Chapter 7 petition), or the debtor's anticipated future financial position.

The vast majority of courts to consider this issue have concluded that the plain language of the statute permits a Chapter 7 debtor to deduct payments on secured debt even when the debtor plans to surrender post-petition the collateral underlying that debt. See, e.g., Morse v. Rudler (In re Rudler), 576 F.3d 37 (1st Cir. 2009); In re Norwood-Hill, 403 B.R. 905 (Bankr. M.D. Fla. 2009); In re Stewart, 410 B.R. 912 (Bankr. D. Or. 2009); In re Harvey, 407 B.R. 867 (Bankr. W.D. Va. 2009); In re Ralston, 400 B.R. 854 (Bankr. M.D. Fla. 2009); In re Parada, 391 B.R. 492, 496-98 (Bankr. S.D. Fla. 2008); Lynch v. Haenke, 395 B.R. 346 (E.D.N.C. 2008); In re Makres, 380 B.R. 30 (Bankr. N.D. Okla. 2007); In re Galyon, 366 B.R. 164 (Bankr. N.D. Okla. 2007); Stapleton v. Mundy (In re Mundy), 363 B.R. 407 (Bankr. M.D. Pa. 2007); In re Hayes, 376 B.R. 55 (Bankr. D. Mass. 2007). In re Maya, 374 B.R. 750 (Bankr. S.D. Cal. 2007); In re Benedetti, 372 B.R. 90 (Bankr. S.D. Fla. 2007); In re Kelvie, 372 B.R. 56, 60-62 (Bankr. D. Idaho 2007); Fokkena v. Hartwick, 373 B.R. 645, 653-655 (D. Minn. 2007); In re Longo, 364 B.R. 161 (Bankr. D. Conn. 2007); In re Harwick, 359 B.R. 16 (Bankr. D. N.H. 2007); In re Randle, 358 B.R. 360 (Bankr. N.D. Ill. 2006), aff'd, 2007 WL 2668727 (N.D. Ill. 2007); In re Simmons, 357 B.R. 480, 483-86 (Bankr. N.D. Ohio 2006); In re Nockerts, 357 B.R. 497, 497-505 (Bankr. E.D. Wis. 2006); In re Walker, 2006 WL 1314125 (Bankr. N.D. Ga. 2006).

On the other side of the fence is a minority line of cases espousing the view that a debtor may not deduct payments on secured debt, if the debtor has stated an intent to surrender the collateral. See In re Naut, 2008 WL 191297 (Bankr. E.D. Pa. 2008); In re Burden, 380 B.R. 194 (Bankr. W.D. Mo. 2007); In re Masur, 2007 WL 3231725 (Bankr. D.S.D. 2007); In re Skaggs, 349 B.R. 594 (Bankr. E.D. Mo. 2006); In re Harris, 353 B.R. 304 (Bankr. E.D. Okla. 2006); In re Ray, 362 B.R. 680 (Bankr. D.S.C. 2006). We are persuaded that the majority view best comports with the statutory language of § 707(b)(2)(A)(iii)(I) and is not at odds with the legislative intent of the Means-Test for purposes of determining eligibility for Chapter 7 relief.[1]

***********************END of In Re Perleman excerpt...


Good background of the Means Test "presumption of abuse" found in Ninth Circuit Egebjerg case:
----
"PRESUMPTIONS" BEFORE BAPCPA:
Prior to BAPCPA, there was a presumption "in favor of granting the relief requested by the Debtor." 11 U.S.C. § 707(b) (2004). This presumption could be overcome if the court found that "granting of relief would be a substantial abuse" of Chapter 7. Id. (emphasis added). Courts looked to the "totality of the circumstances" to make this substantial abuse determination. ...

BAPCPA produced a sea change.
"PRESUMPTIONS" UNDER BAPCPA
There is now no presumption favoring Chapter 7 relief, but an emphasis on repaying creditors as much as possible. H.R.Rep. No. 109-31, pt. 1 at 2 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89.

BAPCPA introduced a mathematical formula, commonly referred to as the "means test," to determine whether a debtor's financial circumstances create a presumption against granting relief under Chapter 7. 11 U.S.C. § 707(b)(2) (2008).

A presumption of abuse may be rebutted if the debtor demonstrates "special circumstances" such as "a serious medical condition or a call or order to active duty in the Armed Forces." § 707(b)(2)(B).

Even if a debtor's financial situation does not create a presumption of abuse (or if the presumption is rebutted), the bankruptcy court may still dismiss the petition if the debtor filed the petition in bad faith or if the "totality of the circumstances" demonstrates "abuse" of Chapter 7. § 707(b)(3); Blausey v. U.S. Trustee, 552 F.3d 1124, 1127 n. 1 (9th Cir.2009).

  • Type A = Expense Allowance allowed for items to be surrendered (Walker)
  • Type B = Expense allowance NOT allowed for items to be surrendered (Skaggs)
  • Type C = Expense allowance allowed unless property has ACTUALLY been surrendered (Singletary)
  • Type D = No "phantom expenses allowed"
  • Type E = "Everything Else"
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Cases for Zip , California Northern District Bankruptcy Court

Ninth Circuit Cases

• In re Amidon

Bankr.D.Idaho - 423 BR 546 - 2010-02-02 - 13 , Above

Google ID#: 2271405625684984071
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• American Express Bank FSB v. Smith (In re Smith)

9th Cir BAP - 418 BR 359 - 2009-10-05 - 13 , Above

Google ID#: 15767277680773420728
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

may a debtor "deduct" secured debt payments not being paid because the property has been surrendered? We part company with several of our colleagues and conclude that debtors may not take those deductions

• In re Stewart

Bankr. D. Or. - 410 B.R. 912 - 2009-03-16 - 7 , Above

Google ID#: 7449625859088396537
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Maya

Bankr.S.D.Cal - 374 B.R. 750 - 2007-08-13 - 7 , N/A

Google ID#: 10337240499298205817
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

Other Circuits

• In re Altman

Bankr. M.D. Ga. - No.: 09-70328-JTL - 2009-12-18 - ,

Google ID#: 4812171712323132764
(Type D : No "phantom expenses allowed" )

Effectively the court would not allow a phantom expense deduction. It said that while the debtor could technically deduct the amount, it would not grant the discharge.

"In calculating monthly income under the means test, the plain language of Section 707(b)(2)(A)(iii)(I) allows debtors to deduct payments due on secured debts notwithstanding the debtor's intention to surrender the collateral. However, despite finding that a presumption of abuse does not arise in the instant case, the court may still find the case abusive pursuant to Section 707(b)(3) [totality of the circumstances]."

• In re Perelman

Bankr.E.D. N.Y. - 419 BR 168 - 2009-10-30 - 7 , Above

Google ID#: 805944261602764290
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

above-median debtor in a Chapter 7 case is allowed under the Means-Test to take deductions for payments on secured debt when the debtor states an intent to surrender the underlying collateral

• In re Dionne

Bankr.E.D.Wis. - 402 B.R. 883 - 2009-08-28 - 13 , Above

Google ID#: 8964621909514876220
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• Morse v. Rudler (In re Rudler)

1st Cir. - 576 F.3d 37 - 2009-08-05 - 7 , Above

Google ID#: 7083943896071638723
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Turner

7th Cir. - 574 F.3d 349 - 2009-07-20 - 13 , Above

Google ID#: 8584063775086879974
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

For some purposes—for example, determining whether the debtor is eligible for a Chapter 13 bankruptcy—his financial situation on the date of the filing of the declaration of bankruptcy will govern, in order that the right procedural vehicle (for example, whether it should be Chapter 13 or Chapter 7) can be determined at the outset. . In re Pearson, 773 F.2d 751, 756-58 (6th Cir. 1985); In re Scovis, 249 F.3d 975, 981-82 (9th Cir. 2001).

• In re Norwood-Hill

Bankr. M.D. Fla. - 403 B.R. 905 - 2009-03-19 - 7 , Above

Google ID#: 1639579893995382333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"This Case involves the Trustee's objection to the Debtor's deductions on Form 22A of secured payments on real property that is being surrendered. Upon review, the Court finds that as the Means Test operates as a mechanical test, § 707(b)(2)(A)(iii)(I) does not require a forward looking assessment of the secured payments a debtor will actually make on contractually required payments in all 60 months following the date of the petition. Instead, the Court takes the view that the plain language of § 707(b)(2)(A)(iii)(I) was meant to create a "snapshot" of a debtor's finances as of the petition date and does not factor into consideration a debtor's future intentions. Accordingly, the Debtor is entitled to deduct the real property that is being surrendered."

• In re Burbank

Bankr.D.R.I. - 401 B.R. 67 - 2009-02-24 - 13 , Above

Google ID#: 9979261307469184644
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Crawley

Bankr. E.D. Va. - 412 B.R. 777 - 2009-02-23 - 7 ,

Google ID#: 808310298614178507
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

the debtors, in performing their means test calculations, are entitled to deduct the average of the payments that would be contractually due, as of the filing date of the petition, for the subsequent 60 months on the four mortgages, notwithstanding their stated intent to surrender both houses.

• In re Goble

Bankr.SD Ohio - 401 B.R. 261 - 2009-02-17 - 7 ,

Google ID#: 11760670167634927513
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Although debtor is allowed to deduct surrendered home on means test form 22C, ability to pay a Chapter 13 plan relevant in determining whether to deny discharge under 702(b)(3). Reduced mortgage payments sufficient for finding of abuse under 703(b)(3). Good history of Sixth Circuit law on 703(b)(3) "totality of circumstances" cases.

• In re Ralston

Bankr. M.D. Fla. - 400 B.R. 854 - 2009-02-10 - 7 , Above

Google ID#: 12339235281904750333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Ralston

Bankr. M.D.Fla. - 400 B.R. 854 - 2009-02-10 - 7 , Above

Google ID#: 12339235281904750333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

The court found debtor's case to NOT be presumptively abusive, saying, "As the function of the Means Test is to be a mechanical formula for establishing a presumptive bar to obtaining relief in a Chapter 7 case, it is fitting that the deductions should be bright line measurements. Otherwise, courts would have to consider the facts and circumstances of each case, including post-petition events, such as the surrender of collateral, when conducting a Means Test analysis under Chapter 7."

• In re Rahman

Bankr. E.D.N.Y. - 400 B.R. 362 - 2009-01-23 - 13 , Above

Google ID#: 3065986901827612531
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

Debtor tried to amend his Chapter 13 plan without also amending his means test deductions.

The court said, "Pursuant to [Section 1325(b) and 707(b)(2)], the court must look at a debtor's stated intentions of record as they exist on the date of confirmation to determine what expenses are 'reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor during the Chapter 13 plan."

The court sustained the Trustee's objection to confirmation of this new plan.

• In re Thomas

6th Cir. BAP - 395 B.R. 914; 922 - 2008-10-31 - 13 , Above

Google ID#: 4370764116317866832
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

This Panel concurs with the decisions cited above to the extent they find that the means test is a mechanical, formulaic approach that as applied is no different in chapter 7 than it is in chapter 13. The Panel has not located any clearly expressed legislative intention that secured debt expenses deducted from the means test in chapter 7 should be different from secured debt expenses deducted from the disposable income test in chapter 13. Therefore, a chapter 13 debtor may deduct, for purposes of determining disposable income under § 1325(b)(2), payments for collateral the debtor intends to surrender.

However, this holding does not resolve all of the issues in this case. The surrender issue is only relevant to a determination of the Debtors' disposable income under § 1325(b)(2). This Panel finds that disposable income must then be compared to the Debtors' projected disposable income, as reflected in Debtors' income and expenses as of the effective date of the plan, as required by § 1325(b)(1)(B). This view is consistent with a growing body of case law holding that "projected disposable income" is forward looking and must be based on anticipated income over the life of the plan. See In re Petro, 395 B.R. 369 (6th Cir. BAP 2008)

• In re Demesones

Bankr. E.D. Virgina - 406 B.R. 711 - 2008-10-24 - 7 ,

Google ID#: 4327275822432141120
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"The means-test calculation includes other expenses that will not be actually incurred. Congress intended to bring uniformity to the means-test calculation under § 707(b)(2) by using the Internal Revenue Service's National Standards and Local Standards as part of a standard measure for eligibility. Congress intended to exclude some actual expenses from the means test because they are not included in the IRS' hypothetical expenses. Conversely, Congress knew that some IRS hypothetical expenses not actually made by debtors would be included in the means-test calculations. A uniform standard helps some and hurts some, but it brings uniformity to the analysis. The point of § 707(b)(2) was to create a quick, easy and definitive test to distinguish between honest but unfortunate debtors and abusive filers."

• In re Quigley

Bankr. N.D. W.Va. - 391 B.R. 294 - 2008-06-20 - both ,

Google ID#: 9953746054741102119
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Smale

Bankr. D. Del. - 390 B.R.111 - 2008-06-09 - 7 ,

Google ID#: 2272180096590785537
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Anderson

Bankr.S.D.Ohio - 383 B.R. 699 - 2008-03-21 - 13 , Above

Google ID#: 14340211352286646854
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"contractually incurred secured debt scheduled on Schedule D relating to collateral being surrendered under a Chapter 13 plan may be deducted under § 707 (b)(2)(A)(iii)(I) in calculating disposable income."

• In re Walker

Bankr.N.D.Ga. - 383 B.R. 830 - 2008-03-05 - 7 , N/A

Google ID#: 3258113653371681599
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Guerriero

Bankr.D.Mass. - 383 B.R. 841 - 2008-02-04 - 7 , Above

Google ID#: 1324332859883820332
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Parada

Bankr. S.D. Fla. - 391 B.R. 492 - 2008-01-10 - 7 , Above

Google ID#: 10342378496353401273
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In Re Hayes

Bankr.D.Mass. - 376 B.R. 55 - 2007-09-26 - 7 , N/A

Google ID#: 10582860080042851874
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Osborne

Bankr.W.D.N.Y. - 374 B.R. 68 - 2007-08-28 - 7 , N/A

Google ID#: 12824762139872264574
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Randle

N.D.Ill. - 2007 WL 2668727 - 2007-07-20 - 7 , N/A

Google ID#: ://scholar.google.com/scholar_case?about=11463996531297768659
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Debtor could claim mortgage expense notwithstanding her intent to surrender. The district court concluded that the debtor’s mortgage payments “were still contractually due . . . even if [she] had not been paying [the] monthly mortgage payments,” and that her filing of a Statement of Intent to surrender was “not an actual surrender.”

• In re Benedetti

Bankr.S.D.Fla. - 372 B.R. 90 - 2007-07-13 - 7 , N/A

Google ID#: 6413066156221483498
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Using a "snapshot" view of the Debtor's expenses on the date of filing makes sense 97 in the context of a Chapter 7 case. The application of the provisions of section 707(b)(2) involves an evaluation of the Debtor's financial condition on the petition date such that a post-petition surrender of collateral is irrelevant and inconsequential.

• In re Ellringer

Bankr.D.Minn. - 370 B.R. 905 - 2007-06-20 - 7 , N/A

Google ID#: 334875251260235756
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Palm

Bankr.D.Kan. - 2007 WL 1772174 - 2007-06-19 - 7 , N/A

Google ID#:
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Augenstein

Bankr.N.D.Ohio - Case No. 06-13867 - 2007-06-14 - 7 , N/A

Google ID#:
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

a Chapter 7 debtor who has stated an intention to surrender the collateral securing the debt may nonetheless deduct payments secured by that property

• In re Mundy

Bankr.M.D.Pa. - 363 B.R. 407 - 2007-03-01 - 7 , N/A

Google ID#: 3257683270260224116
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Ray

Bankr.D.S.C. - 362 B.R. 680 - 2007-02-28 - 7 , N/A

Google ID#: 4856243550408387828
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

with the phrase “amounts scheduled as contractually due” Congress contemplated a forward looking calculation requiring consideration of events contemplated in the debtors’ Statement of Intent.

• In re Sorrell

Bankr.S.D.Ohio - 359 B.R. 167 - 2007-01-26 - 7 , N/A

Google ID#: 10954965718446510864
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Nockerts

Bankr.E.D.Wis. - 357 B.R. 497 - 2006-12-14 - 7 , N/A

Google ID#: 11105860880297690118
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Singletary

Bankr.S.D.Tex. - 354 B.R. 455 - 2006-10-19 - 7 , N/A

Google ID#: 3272073387974371431
(Type C : Expense allowance allowed unless property has ACTUALLY been surrendered (Singletary) )

A motion to dismiss under Section 707(b)(2) must be made no later than 30 days after the filing of the Section 704(b)(1) Statement of Presumed Abuse.

• In re Hartwick

Bankr.D.Minn. - 352 B.R. 867 - 2006-10-13 - 7 , N/A

Google ID#: 12395869896431254649
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Harris

Bankr.E.D.Okla. - 353 B.R. 304 - 2006-10-13 - 7 , N/A

Google ID#: 18378876260506570681
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Skaggs

Bankr.E.D.Mo. - 349 B.R. 594 - 2006-08-18 - 7 , N/A

Google ID#: 4047009656958785514
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Harvey

Bankr - 407 B.R. 867 - - 7/20/2009 , 7

Google ID#: 10329263106868761719
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

The Fourth Circuit has not yet spoken to the issue presented in this case, and the lower courts are not in agreement. The majority of courts within this circuit hold that a debtor may deduct payments on debts secured by property that he or she intends to surrender. ....This Court finds the majority interpretation persuasive.

• In re Stenstrom

Bankr. C.D. - 439 B.R. 494 - - 3/25/2010 ,

Google ID#: 17536097840277864651
(Type E : )

Debtor's disclaimer of interest in vehicles was treated as a surrender of collateral would be treated.

"For purposes of determining the debtor's projected disposable income, her disclaimer of interest in and liability for the motor home must be treated the same as a surrender of collateral. The debtor forthrightly admits that the co-debtor has exclusive possession, use and enjoyment of the motor home and sloe responsibility for the debt service payments and all other expenses associated therewith. Although her legal liability still exists, the debtor pays nothing."

• In re Amidon

Bankr.D.Idaho - 423 BR 546 - 2010-02-02 - 13 , Above

Google ID#: 2271405625684984071
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Altman

Bankr. M.D. Ga. - No.: 09-70328-JTL - 2009-12-18 - ,

Google ID#: 4812171712323132764
(Type D : No "phantom expenses allowed" )

Effectively the court would not allow a phantom expense deduction. It said that while the debtor could technically deduct the amount, it would not grant the discharge.

"In calculating monthly income under the means test, the plain language of Section 707(b)(2)(A)(iii)(I) allows debtors to deduct payments due on secured debts notwithstanding the debtor's intention to surrender the collateral. However, despite finding that a presumption of abuse does not arise in the instant case, the court may still find the case abusive pursuant to Section 707(b)(3) [totality of the circumstances]."

• In re Perelman

Bankr.E.D. N.Y. - 419 BR 168 - 2009-10-30 - 7 , Above

Google ID#: 805944261602764290
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

above-median debtor in a Chapter 7 case is allowed under the Means-Test to take deductions for payments on secured debt when the debtor states an intent to surrender the underlying collateral

• American Express Bank FSB v. Smith (In re Smith)

9th Cir BAP - 418 BR 359 - 2009-10-05 - 13 , Above

Google ID#: 15767277680773420728
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

may a debtor "deduct" secured debt payments not being paid because the property has been surrendered? We part company with several of our colleagues and conclude that debtors may not take those deductions

• In re Dionne

Bankr.E.D.Wis. - 402 B.R. 883 - 2009-08-28 - 13 , Above

Google ID#: 8964621909514876220
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• Morse v. Rudler (In re Rudler)

1st Cir. - 576 F.3d 37 - 2009-08-05 - 7 , Above

Google ID#: 7083943896071638723
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Turner

7th Cir. - 574 F.3d 349 - 2009-07-20 - 13 , Above

Google ID#: 8584063775086879974
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

For some purposes—for example, determining whether the debtor is eligible for a Chapter 13 bankruptcy—his financial situation on the date of the filing of the declaration of bankruptcy will govern, in order that the right procedural vehicle (for example, whether it should be Chapter 13 or Chapter 7) can be determined at the outset. . In re Pearson, 773 F.2d 751, 756-58 (6th Cir. 1985); In re Scovis, 249 F.3d 975, 981-82 (9th Cir. 2001).

• In re Norwood-Hill

Bankr. M.D. Fla. - 403 B.R. 905 - 2009-03-19 - 7 , Above

Google ID#: 1639579893995382333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"This Case involves the Trustee's objection to the Debtor's deductions on Form 22A of secured payments on real property that is being surrendered. Upon review, the Court finds that as the Means Test operates as a mechanical test, § 707(b)(2)(A)(iii)(I) does not require a forward looking assessment of the secured payments a debtor will actually make on contractually required payments in all 60 months following the date of the petition. Instead, the Court takes the view that the plain language of § 707(b)(2)(A)(iii)(I) was meant to create a "snapshot" of a debtor's finances as of the petition date and does not factor into consideration a debtor's future intentions. Accordingly, the Debtor is entitled to deduct the real property that is being surrendered."

• In re Stewart

Bankr. D. Or. - 410 B.R. 912 - 2009-03-16 - 7 , Above

Google ID#: 7449625859088396537
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Burbank

Bankr.D.R.I. - 401 B.R. 67 - 2009-02-24 - 13 , Above

Google ID#: 9979261307469184644
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Crawley

Bankr. E.D. Va. - 412 B.R. 777 - 2009-02-23 - 7 ,

Google ID#: 808310298614178507
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

the debtors, in performing their means test calculations, are entitled to deduct the average of the payments that would be contractually due, as of the filing date of the petition, for the subsequent 60 months on the four mortgages, notwithstanding their stated intent to surrender both houses.

• In re Goble

Bankr.SD Ohio - 401 B.R. 261 - 2009-02-17 - 7 ,

Google ID#: 11760670167634927513
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Although debtor is allowed to deduct surrendered home on means test form 22C, ability to pay a Chapter 13 plan relevant in determining whether to deny discharge under 702(b)(3). Reduced mortgage payments sufficient for finding of abuse under 703(b)(3). Good history of Sixth Circuit law on 703(b)(3) "totality of circumstances" cases.

• In re Ralston

Bankr. M.D. Fla. - 400 B.R. 854 - 2009-02-10 - 7 , Above

Google ID#: 12339235281904750333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Ralston

Bankr. M.D.Fla. - 400 B.R. 854 - 2009-02-10 - 7 , Above

Google ID#: 12339235281904750333
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

The court found debtor's case to NOT be presumptively abusive, saying, "As the function of the Means Test is to be a mechanical formula for establishing a presumptive bar to obtaining relief in a Chapter 7 case, it is fitting that the deductions should be bright line measurements. Otherwise, courts would have to consider the facts and circumstances of each case, including post-petition events, such as the surrender of collateral, when conducting a Means Test analysis under Chapter 7."

• In re Rahman

Bankr. E.D.N.Y. - 400 B.R. 362 - 2009-01-23 - 13 , Above

Google ID#: 3065986901827612531
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

Debtor tried to amend his Chapter 13 plan without also amending his means test deductions.

The court said, "Pursuant to [Section 1325(b) and 707(b)(2)], the court must look at a debtor's stated intentions of record as they exist on the date of confirmation to determine what expenses are 'reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor during the Chapter 13 plan."

The court sustained the Trustee's objection to confirmation of this new plan.

• In re Thomas

6th Cir. BAP - 395 B.R. 914; 922 - 2008-10-31 - 13 , Above

Google ID#: 4370764116317866832
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

This Panel concurs with the decisions cited above to the extent they find that the means test is a mechanical, formulaic approach that as applied is no different in chapter 7 than it is in chapter 13. The Panel has not located any clearly expressed legislative intention that secured debt expenses deducted from the means test in chapter 7 should be different from secured debt expenses deducted from the disposable income test in chapter 13. Therefore, a chapter 13 debtor may deduct, for purposes of determining disposable income under § 1325(b)(2), payments for collateral the debtor intends to surrender.

However, this holding does not resolve all of the issues in this case. The surrender issue is only relevant to a determination of the Debtors' disposable income under § 1325(b)(2). This Panel finds that disposable income must then be compared to the Debtors' projected disposable income, as reflected in Debtors' income and expenses as of the effective date of the plan, as required by § 1325(b)(1)(B). This view is consistent with a growing body of case law holding that "projected disposable income" is forward looking and must be based on anticipated income over the life of the plan. See In re Petro, 395 B.R. 369 (6th Cir. BAP 2008)

• In re Demesones

Bankr. E.D. Virgina - 406 B.R. 711 - 2008-10-24 - 7 ,

Google ID#: 4327275822432141120
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"The means-test calculation includes other expenses that will not be actually incurred. Congress intended to bring uniformity to the means-test calculation under § 707(b)(2) by using the Internal Revenue Service's National Standards and Local Standards as part of a standard measure for eligibility. Congress intended to exclude some actual expenses from the means test because they are not included in the IRS' hypothetical expenses. Conversely, Congress knew that some IRS hypothetical expenses not actually made by debtors would be included in the means-test calculations. A uniform standard helps some and hurts some, but it brings uniformity to the analysis. The point of § 707(b)(2) was to create a quick, easy and definitive test to distinguish between honest but unfortunate debtors and abusive filers."

• In re Quigley

Bankr. N.D. W.Va. - 391 B.R. 294 - 2008-06-20 - both ,

Google ID#: 9953746054741102119
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Smale

Bankr. D. Del. - 390 B.R.111 - 2008-06-09 - 7 ,

Google ID#: 2272180096590785537
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Anderson

Bankr.S.D.Ohio - 383 B.R. 699 - 2008-03-21 - 13 , Above

Google ID#: 14340211352286646854
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

"contractually incurred secured debt scheduled on Schedule D relating to collateral being surrendered under a Chapter 13 plan may be deducted under § 707 (b)(2)(A)(iii)(I) in calculating disposable income."

• In re Walker

Bankr.N.D.Ga. - 383 B.R. 830 - 2008-03-05 - 7 , N/A

Google ID#: 3258113653371681599
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Guerriero

Bankr.D.Mass. - 383 B.R. 841 - 2008-02-04 - 7 , Above

Google ID#: 1324332859883820332
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Parada

Bankr. S.D. Fla. - 391 B.R. 492 - 2008-01-10 - 7 , Above

Google ID#: 10342378496353401273
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In Re Hayes

Bankr.D.Mass. - 376 B.R. 55 - 2007-09-26 - 7 , N/A

Google ID#: 10582860080042851874
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Osborne

Bankr.W.D.N.Y. - 374 B.R. 68 - 2007-08-28 - 7 , N/A

Google ID#: 12824762139872264574
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Maya

Bankr.S.D.Cal - 374 B.R. 750 - 2007-08-13 - 7 , N/A

Google ID#: 10337240499298205817
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Randle

N.D.Ill. - 2007 WL 2668727 - 2007-07-20 - 7 , N/A

Google ID#: ://scholar.google.com/scholar_case?about=11463996531297768659
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Debtor could claim mortgage expense notwithstanding her intent to surrender. The district court concluded that the debtor’s mortgage payments “were still contractually due . . . even if [she] had not been paying [the] monthly mortgage payments,” and that her filing of a Statement of Intent to surrender was “not an actual surrender.”

• In re Benedetti

Bankr.S.D.Fla. - 372 B.R. 90 - 2007-07-13 - 7 , N/A

Google ID#: 6413066156221483498
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

Using a "snapshot" view of the Debtor's expenses on the date of filing makes sense 97 in the context of a Chapter 7 case. The application of the provisions of section 707(b)(2) involves an evaluation of the Debtor's financial condition on the petition date such that a post-petition surrender of collateral is irrelevant and inconsequential.

• In re Ellringer

Bankr.D.Minn. - 370 B.R. 905 - 2007-06-20 - 7 , N/A

Google ID#: 334875251260235756
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Palm

Bankr.D.Kan. - 2007 WL 1772174 - 2007-06-19 - 7 , N/A

Google ID#:
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Augenstein

Bankr.N.D.Ohio - Case No. 06-13867 - 2007-06-14 - 7 , N/A

Google ID#:
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

a Chapter 7 debtor who has stated an intention to surrender the collateral securing the debt may nonetheless deduct payments secured by that property

• In re Mundy

Bankr.M.D.Pa. - 363 B.R. 407 - 2007-03-01 - 7 , N/A

Google ID#: 3257683270260224116
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Ray

Bankr.D.S.C. - 362 B.R. 680 - 2007-02-28 - 7 , N/A

Google ID#: 4856243550408387828
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

with the phrase “amounts scheduled as contractually due” Congress contemplated a forward looking calculation requiring consideration of events contemplated in the debtors’ Statement of Intent.

• In re Sorrell

Bankr.S.D.Ohio - 359 B.R. 167 - 2007-01-26 - 7 , N/A

Google ID#: 10954965718446510864
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Nockerts

Bankr.E.D.Wis. - 357 B.R. 497 - 2006-12-14 - 7 , N/A

Google ID#: 11105860880297690118
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Singletary

Bankr.S.D.Tex. - 354 B.R. 455 - 2006-10-19 - 7 , N/A

Google ID#: 3272073387974371431
(Type C : Expense allowance allowed unless property has ACTUALLY been surrendered (Singletary) )

A motion to dismiss under Section 707(b)(2) must be made no later than 30 days after the filing of the Section 704(b)(1) Statement of Presumed Abuse.

• In re Hartwick

Bankr.D.Minn. - 352 B.R. 867 - 2006-10-13 - 7 , N/A

Google ID#: 12395869896431254649
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

• In re Harris

Bankr.E.D.Okla. - 353 B.R. 304 - 2006-10-13 - 7 , N/A

Google ID#: 18378876260506570681
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Skaggs

Bankr.E.D.Mo. - 349 B.R. 594 - 2006-08-18 - 7 , N/A

Google ID#: 4047009656958785514
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Masur

Bankr. D S.D. - 2007 WL 3231725 - 0000-00-00 - 7 ,

Google ID#: 11760670167634927513
(Type B : Expense allowance NOT allowed for items to be surrendered (Skaggs) )

• In re Harvey

Bankr - 407 B.R. 867 - - 7/20/2009 , 7

Google ID#: 10329263106868761719
(Type A : Expense Allowance allowed for items to be surrendered (Walker) )

The Fourth Circuit has not yet spoken to the issue presented in this case, and the lower courts are not in agreement. The majority of courts within this circuit hold that a debtor may deduct payments on debts secured by property that he or she intends to surrender. ....This Court finds the majority interpretation persuasive.

• In re Stenstrom

Bankr. C.D. - 439 B.R. 494 - - 3/25/2010 ,

Google ID#: 17536097840277864651
(Type E : )

Debtor's disclaimer of interest in vehicles was treated as a surrender of collateral would be treated.

"For purposes of determining the debtor's projected disposable income, her disclaimer of interest in and liability for the motor home must be treated the same as a surrender of collateral. The debtor forthrightly admits that the co-debtor has exclusive possession, use and enjoyment of the motor home and sloe responsibility for the debt service payments and all other expenses associated therewith. Although her legal liability still exists, the debtor pays nothing."

All Cases A to Z

  • American Express Bank FSB v. Smith (In re Smith), 418 BR 359 , (9th Cir BAP ) 2009-10-05, #15767277680773420728
  • In re Altman, No.: 09-70328-JTL , (Bankr. M.D. Ga. ) 2009-12-18, #4812171712323132764
  • In re Amidon, 423 BR 546 , (Bankr.D.Idaho ) 2010-02-02, #2271405625684984071
  • In re Anderson, 383 B.R. 699 , (Bankr.S.D.Ohio ) 2008-03-21, #14340211352286646854
  • In re Augenstein, Case No. 06-13867 , (Bankr.N.D.Ohio ) 2007-06-14, #
  • In re Benedetti, 372 B.R. 90 , (Bankr.S.D.Fla. ) 2007-07-13, #6413066156221483498
  • In re Burbank, 401 B.R. 67 , (Bankr.D.R.I. ) 2009-02-24, #9979261307469184644
  • In re Crawley, 412 B.R. 777 , (Bankr. E.D. Va. ) 2009-02-23, #808310298614178507
  • In re Demesones, 406 B.R. 711 , (Bankr. E.D. Virgina ) 2008-10-24, #4327275822432141120
  • In re Dionne, 402 B.R. 883 , (Bankr.E.D.Wis. ) 2009-08-28, #8964621909514876220
  • In re Ellringer, 370 B.R. 905 , (Bankr.D.Minn. ) 2007-06-20, #334875251260235756
  • In re Goble, 401 B.R. 261 , (Bankr.SD Ohio ) 2009-02-17, #11760670167634927513
  • In re Guerriero, 383 B.R. 841 , (Bankr.D.Mass. ) 2008-02-04, #1324332859883820332
  • In re Harris, 353 B.R. 304 , (Bankr.E.D.Okla. ) 2006-10-13, #18378876260506570681
  • In re Hartwick, 352 B.R. 867 , (Bankr.D.Minn. ) 2006-10-13, #12395869896431254649
  • In re Harvey, 407 B.R. 867 , (Bankr ) , #10329263106868761719
  • In Re Hayes, 376 B.R. 55 , (Bankr.D.Mass. ) 2007-09-26, #10582860080042851874
  • In re Masur, 2007 WL 3231725 , (Bankr. D S.D. ) 0000-00-00, #11760670167634927513
  • In re Maya, 374 B.R. 750 , (Bankr.S.D.Cal ) 2007-08-13, #10337240499298205817
  • In re Mundy, 363 B.R. 407 , (Bankr.M.D.Pa. ) 2007-03-01, #3257683270260224116
  • In re Nockerts, 357 B.R. 497 , (Bankr.E.D.Wis. ) 2006-12-14, #11105860880297690118
  • In re Norwood-Hill, 403 B.R. 905 , (Bankr. M.D. Fla. ) 2009-03-19, #1639579893995382333
  • In re Osborne, 374 B.R. 68 , (Bankr.W.D.N.Y. ) 2007-08-28, #12824762139872264574
  • In re Palm, 2007 WL 1772174 , (Bankr.D.Kan. ) 2007-06-19, #
  • In re Parada, 391 B.R. 492 , (Bankr. S.D. Fla. ) 2008-01-10, #10342378496353401273
  • In re Perelman, 419 BR 168 , (Bankr.E.D. N.Y. ) 2009-10-30, #805944261602764290
  • In re Quigley, 391 B.R. 294 , (Bankr. N.D. W.Va. ) 2008-06-20, #9953746054741102119
  • In re Rahman, 400 B.R. 362 , (Bankr. E.D.N.Y. ) 2009-01-23, #3065986901827612531
  • In re Ralston, 400 B.R. 854 , (Bankr. M.D. Fla. ) 2009-02-10, #12339235281904750333
  • In re Ralston, 400 B.R. 854 , (Bankr. M.D.Fla. ) 2009-02-10, #12339235281904750333
  • In re Randle, 2007 WL 2668727 , (N.D.Ill. ) 2007-07-20, #://scholar.google.com/scholar_case?about=11463996531297768659
  • In re Ray, 362 B.R. 680 , (Bankr.D.S.C. ) 2007-02-28, #4856243550408387828
  • In re Singletary, 354 B.R. 455 , (Bankr.S.D.Tex. ) 2006-10-19, #3272073387974371431
  • In re Skaggs, 349 B.R. 594 , (Bankr.E.D.Mo. ) 2006-08-18, #4047009656958785514
  • In re Smale, 390 B.R.111 , (Bankr. D. Del. ) 2008-06-09, #2272180096590785537
  • In re Sorrell, 359 B.R. 167 , (Bankr.S.D.Ohio ) 2007-01-26, #10954965718446510864
  • In re Stenstrom, 439 B.R. 494 , (Bankr. C.D. ) , #17536097840277864651
  • In re Stewart, 410 B.R. 912 , (Bankr. D. Or. ) 2009-03-16, #7449625859088396537
  • In re Thomas, 395 B.R. 914; 922 , (6th Cir. BAP ) 2008-10-31, #4370764116317866832
  • In re Turner, 574 F.3d 349 , (7th Cir. ) 2009-07-20, #8584063775086879974
  • In re Walker, 383 B.R. 830 , (Bankr.N.D.Ga. ) 2008-03-05, #3258113653371681599
  • Morse v. Rudler (In re Rudler), 576 F.3d 37 , (1st Cir. ) 2009-08-05, #7083943896071638723

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When you read a case, check to make sure that the case's decision applies to your local district. Do this by looking at which court has decided the case -- either the U.S. Supreme Court, a court of appeal (listed here in large type), or a district court (listed in small type).  Your local district court judge is not bound to follow the opinion of judges from other district courts, but often they look to these cases for advice. Your local district, however, is bound  to follow decisions in cases from it governing circuit court. You'll see fairly few Supreme Court case here, but those cases are also binding on all districts."

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NO! NO! NO! This is a start for your research. New cases are constantly being decided. I update this when I have time. This is only a fraction of the actual published opinions out there. Dozens of cases are handed down nationwide every week. I catalog interesting ones when I have time. They are meant to serve as a starting point for your research -- NOT as a comprehensive listing of the current state of the law.

 

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This database does not contain every relevant case in every district on the topics covered; there are high priced services for that. This is free. It is offered to the public "as is" as an adjunct to the Nolo books, How to File Chapter 7 Bankruptcy, and Chapter 13 Bankruptcy: Keep Your Property and Repay Your Debts Over Time (10th Edition, 2010): which I co-author with attorney Stephen Elias.

This database is updated as time permits. Do not assume that it has the latest case in your district. We are still filling holes in the database -- and will always be. Use it as a place to start your reasearch, rather than the final answer to your question.

Some of these issues involve the discretion of the judge which can vary from judge to judge. So, even if you find a case just like yours where a judge went your way, as they say in the car biz, "your mileage may vary..."

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