Would this bapcpa decision

[kcdawg1]

in chapter 13 case apply to chapter 7 regarding 401k contributions and loan repayments.I have heard some say you can include these to reduce income and some say you cant.Thinking about filing and would file in this district.Thanks

[TEW]

No your 401K repayment is paying yourself back.

[justbroke]

in chapter 13 case apply to chapter 7 regarding 401k contributions and loan repayments.I have heard some say you can include these to reduce income and some say you cant.Thinking about filing and would file in this district.Thanks

The truth is that the BAPCPA states that contributions are "not disposable income". This has been reviewed (at the appellate level) in many circuits and they agree that contributions are not disposable income. The language is quite clear in the BAPCPA amended portion of the U.S. Bankruptcy Code. (11 USC 541)

Similarly, the repayments of loans were also protected under the BAPCPA of 2005. These are protected due to language in 11 USC 1322 which covers the Plan. Basically, the Plan can't alter the repayment of the loan, hence the loan is covered. It is also not property of the estate and does not constitute disposable income (per 11 USC 1322), when it comes to Chapter 13 Plans.

Since you seem to be filing Chapter 7 (implied by posting in the Chapter 7 area of the Forum), your loan repayments are indeed property of the bankruptcy Estate. The section mentioned about is for Chapter 13 cases and not Chapter 7 cases.

Also, you mention a "decision" but do not actually post a link or reference. I also can't tell which District you are filing in.

[albacore44]

In My original consultation with a very experienced Attorney I was told Ch-13 due to income, and 401K loan payback is not included as an expense to try and qualify for a Ch-7. Where it does come into play and help, is in Ch-13 it is included as a budget expense, and will affect the amount (% Payback) going to pay unsecured debt. Since I have a very high loan payment ($800 a month), my payback would have been below 10%.

[kcdawg1]

Sorry here's the link

http://www.gasb.uscourts.gov/pdf/05-14114.pdf

[justbroke]

http://www.gasb.uscourts.gov/pdf/05-14114.pdf

As I mentioned above, that only applies in a Chapter 13 case. The opinion and ruling that you have posted is for a Chapter 13 case.

[kcdawg1]

I know it's

for a 13,i was just wondering would that apply to a 7 also

[justbroke]

for a 13,i was just wondering would that apply to a 7 also

As I wrote above... not all of it applies to a Chapter 7. I thought it was clear, but let me make is shorter...

A 401(k) contribution is not "disposable income" for purposes of the means test in both Chapter 7 and Chapter 13. (11 USC 541) However, you can't exclude it from your "income" (CMI) calculation.

A 401(k) loan repayment is not "disposable income" for the purposes of calculating the Disposable Monthly Income (DMI) for a Chapter 13 plan. (11 USC 1322) This does not apply in a Chapter 7, so repayments are not expenses which are excluded.