During a Chapter 13 bankruptcy you pay your creditors in accordance with your ability to pay. Some creditors receive 100% of the debt, and others may receive a small sum or nothing at all. The Bankruptcy Code establishes a priority of debt repayment.
Administrative claims must be paid 100% and include your filing fee, the trustee’s compensation (3% to 10% of each monthly payment), and your attorney’s fees. Other debts must be paid 100% during the debtor’s bankruptcy including alimony and child support, most tax debts, and mortgage arrears if you intend to keep you home.
The lowest category of debt repayment is unsecured creditors. The amount paid to unsecured creditors (e.g. medical bills, credit cards, and unsecured personal loans) is determined by several factors including (1) the amount of your nonexempt assets; (2) your disposable income; and (3) the length of your plan.
The length of your plan and amount of your disposable income are largely determined by the Bankruptcy Means Test. The Means Test was the subject of a recent United States Supreme Court case: Hamilton, Chapter 13 Trustee v. Lanning. The issue in Hamilton is how a bankruptcy court calculates your ability to pay creditors during the bankruptcy case.
The 2005 changes to the Bankruptcy Code included a requirement that Chapter 13 debtors commit all “projected disposable income” to the repayment plan. Confusion arose over whether Congress meant to determine this amount through a mechanical approach, by averaging the debtor’s income for the past six months, or whether the determination is “forward looking” and should consider the debtor’s future ability to pay.
Justice Samuel Alito, writing for an 8-1 majority, said the “forward looking” approach is correct. The forward-looking approach starts with the debtor’s average monthly disposable income for the past six months multiplied by the number of months in a debtor’s plan. This figure is ordinarily the debtor’s projected disposable income. However, in some cases, the Court has authority to review the debtor’s actual and present monthly income in order to calculate the debtor’s ability to pay debts during the plan period.
The Hamilton case will have great impact on Chapter 13 bankruptcy cases and places the power to determine a fair and affordable Chapter 13 payment plan in the hands of the bankruptcy court judges. If you are in need of bankruptcy relief, but fear that you will be forced to pay a monthly sum you can’t afford, get the facts from the experienced bankruptcy attorneys at Haines and Krieger. Bankruptcy is not a debtor’s prison and has helped millions get a fresh financial start. Contact us today for a free consultation.