Coop v. Frederickson (In Re Frederickson)

375 B.R. 829, 58 Collier Bankr. Cas. 2d 719, 2007 Bankr. LEXIS 3151, 2007 WL 2752769
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedSeptember 24, 2007
Docket07-6025EA
StatusPublished
Cited by55 cases

This text of 375 B.R. 829 (Coop v. Frederickson (In Re Frederickson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coop v. Frederickson (In Re Frederickson), 375 B.R. 829, 58 Collier Bankr. Cas. 2d 719, 2007 Bankr. LEXIS 3151, 2007 WL 2752769 (bap8 2007).

Opinions

MAHONEY, Bankruptcy Judge.

This appeal was filed by the Chapter 13 trustee from an order of the bankruptcy court1 overruling the trustee’s objection to confirmation of the debtor’s plan of reorganization. It concerns the interpretation of the phrases “projected disposable income” and “applicable commitment period” in 11 U.S.C. § 1325(b)(1)(B) as it was amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”). The question before us is whether, to obtain confirmation of a Chapter 13 plan, an “above-median debtor” whose disposable income is negative when calculated per the statutory requirements must propose a plan that runs five years? The bankruptcy judge confirmed a 48-month plan. For the reasons stated below, we affirm.

I. Standard of Review

The findings of fact are uncontested and no review thereof is sought by the parties. The bankruptcy court’s statutory interpretation is a conclusion of law, which is reviewed de novo. Colsen v. United States (In re Colsen), 446 F.3d 836, 839 (8th Cir.2006); Banks v. Griffin (In re Griffin), 352 B.R. 475, (8th Cir. BAP 2006).

II. Background and Discussion

The essence of Chapter 13 is a debtor’s ability to repay, through a confirmed plan, at least some of his or her debts over time. In the pre-BAPCPA world, the “disposable income” used for plan payments was initially calculated by subtracting “reasonable” expenses reported on Schedule J from the income reported on Schedule I. If the trustee or a creditor objected, the court would determine the' amount that would be allowed as “reasonable” expenses to be used in the calculation. 11 U.S.C. § 1325(b)(2) (2004). That “disposable income” was to be used to make plan payments to cover administrative, secured, priority, and general unsecured claims. The BAPCPA amendments modified the definition to state that disposable income “means current monthly income received by the debtor” less reasonably necessary expenditures for the living expenses of the [831]*831debtor and any dependents, and certain charitable contributions. 11 U.S.C. § 1325(b)(2). “Current monthly income” is a defined term (11 U.S.C. § 101(10A)) which Chapter 13 debtors calculate by using Official Form 22C, the Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income. It averages a debtor’s income over the six months preceding the bankruptcy filing and uses national and local Internal Revenue Service allowable expense standards. The “disposable income” determined from Form 22C is to be used solely to pay unsecured claims. This method provides an extended view of the debtor’s financial history. The pre-BAPC-PA method provides a snapshot of the debtor’s current financial situation.

The debtor in this case filed his Chapter 13 petition, schedules, Form 22C, and proposed plan on December 13, 2006. Form 22C showed that his annualized income was above the applicable median family income for the state of Arkansas, so he is what is known in modern bankruptcy parlance as an “above-median debtor.” The Form 22C also showed that the debtor’s monthly expenses exceed his current monthly income by $95.49, resulting in negative disposable income. Nevertheless, the debtor proposes to make plan payments of $600 per month. This incongruity arises from the different sources for and function of the figures used in the schedules and on Form 22C. In contrast to the Form 22C numbers, the schedules filed with the petition show a lower average monthly income and much lower average monthly expenses, with the result that the debtor has an actual monthly surplus of $600 with which to make plan payments.

In his plan, the debtor proposes to pay $600 per month for 48 months. Administrative costs, secured debt, arrearage on long-term debt, and priority tax claims will be paid through the plan, with a pro rata distribution of approximately 75 percent to unsecured creditors. The trustee objected to the duration of the plan, arguing that 11 U.S.C. § 1325(b)(4) requires the term of the plan to be 60 months because this is an above-median debtor.

After a hearing, the bankruptcy court overruled the objection, finding that under the circumstances of this case — the circumstances being the negative disposable income — the Bankruptcy Code does not require the debtor to pay into the plan for five years. The bankruptcy court reasoned that the introductory clause of 11 U.S.C. § 1325(b)(4) says “for purposes of this subsection” the applicable commitment period is either three years or five years, and the “for purposes of this subsection” language can only refer to subsection (b), which addresses what a plan must contain to withstand objection to confirmation. One thing a plan must contain is a provision to apply all of the debtor’s projected disposable income to payments to unsecured creditors. However, if there is no projected disposable income, then subsection (b)(4) and the applicable commitment period do not even come into play. The bankruptcy court quoted In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006), saying “there is no reason to extend plans artificially if there is no requirement that debtors pay a dividend to unsecured creditors over time.” In re Frederickson, 368 B.R. 825, 831 (Bankr.E.D.Ark.2007) (quoting Alexander, 344 B.R. at 751).

On that basis, the bankruptcy court ruled that an above-median debtor who has no disposable income according to Form 22C can.propose a confirmable plan with a length of less than five years if the other statutory requirements are met. 368 B.R. at 831.

The parties in the present case agree that because the disposable income calcu[832]*832lated on Form 22C is negative, the debtor is not required to make any payments of “projected disposable income” to unsecured creditors under the plan and the court so found. However, the Trustee takes the position that the disposable income calculation provides a number that is only the minimum amount the debtor must pay to the unsecured creditors. According to the Trustee, because the debtor is “above median,” the debtor must stay in the plan for five years and pay into the plan the monthly amount shown as available from deducting “reasonable” expenses as initially shown on Schedule J, or as determined by the court, from the actual income of the debtor on the petition date or the confirmation date. The Trustee points to no statutory authority for such a suggestion, but relies on the assumption that the intent of Congress was to require debtors to pay more to unsecured creditors than was the case prior to the amendments.

To determine if this 48-month plan is confirmable, we must discuss “projected disposable income” and the “applicable commitment period,” both of which are referred to in 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
375 B.R. 829, 58 Collier Bankr. Cas. 2d 719, 2007 Bankr. LEXIS 3151, 2007 WL 2752769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coop-v-frederickson-in-re-frederickson-bap8-2007.