Update to Means Test Bankruptcy Petition Form

The Means Test, a form within the Chapter 7 bankruptcy petition was updated on December 19, 2008. This change is very minor. In a nutshell, a check box and Part 1C was added for debtors who are entitled to claim the Reservists and National Guard exclusion. Below is the Committee Note provided by the US Bankruptcy Court regarding this change:

Form 22A

The Chapter 7 form is amended to implement the temporary exclusion from Means Testing created by the National Guard and Reservists Debt Relief Act of 2008. That law amended Section 707(b)(2)(D) for a period of three years by adding a new Subsection (ii) to provide a temporary exclusion from the application of the Means Test for certain members of the National Guard and reserve components of the Armed Forces. The new temporary exclusion would last for the period that the qualifying debtor is on active duty or is performing a homeland defense activity, and for 540 days thereafter.

Because the exclusion for Reservists and National Guard members applies only for a defined period of time, it may expire during the course of the Chapter 7 case filed by a debtor initially entitled to the exclusion. For that reason, a new check box is added to the top of the form that states that the “presumption is temporarily inapplicable.” A debtor who is entitled to claim the Reservists and National Guard exclusion at the commencement of the Chapter 7 case may check that box.

The new exclusion applies only to a debtor who satisfies all of the requirements of Section 707(b)(2)(D)(ii), and its expiration date depends on facts specific to each debtor. Therefore, in a joint case in which the exclusion in Part 1C is claimed by either or both filers, each joint filer must complete a separate statement. If only one joint debtor qualifies for the exclusion in Part IC, the other joint debtor must complete the form.

Part 1C is added to the form to allow qualifying debtors to claim the temporary exclusion under Section 707(b)(2)(D)(ii). Debtors who declare under penalty of perjury that they satisfy all of the requirements of that provision are directed to verify their declaration in Part VIII and to check the “temporary presumption” box at the beginning of the form. They are not required to complete the remaining parts of the form for so long as the exclusion remains applicable.

A debtor who is or has been a Reservist or a National Guard member may qualify for the exclusion described in Part 1C by being called to active duty service after September 11, 2001, for a period of at least 90 days, or while performing homeland defense activity for a period of at least 90 days. After the debtor has been released from active duty or has ceased performing homeland defense activity, the exclusion applies for a period of 540 days after the release date or cessation of homeland defense activity. Under those circumstances the debtor must state the date of release from active duty or the date on which the performance of homeland defense activity terminated.

If the Reservist and National Guard exclusion terminates during the course of a Chapter 7 case – because of the expiration of the 540 day period following the release from active duty or the cessation of homeland defense activity – then the debtor may be required to complete the remaining parts of the form that are applicable to the debtor. If the exclusion terminates while a timely Motion to Dismiss under Section 707(b)(2) may still be filed, Interim Rule 1007-I(n) requires that the debtor complete the remaining parts of the form no later than 14 days after the termination. If the obligation to complete the form arises in these circumstances and the debtor has not previously completed the form, the clerk is required to give the debtor notice of the obligation.

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