In Re Alexander

344 B.R. 742, 56 Collier Bankr. Cas. 2d 427, 2006 Bankr. LEXIS 1272, 2006 WL 1876527
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedJune 30, 2006
Docket18-03296
StatusPublished
Cited by153 cases

This text of 344 B.R. 742 (In Re Alexander) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Alexander, 344 B.R. 742, 56 Collier Bankr. Cas. 2d 427, 2006 Bankr. LEXIS 1272, 2006 WL 1876527 (N.C. 2006).

Opinion

ORDER

J. RICH LEONARD, Bankruptcy Judge.

These cases are before the court on the debtors’ objections to the trustee’s motions for confirmation. On April 27, 2006, the court conducted a hearing on these matters in Wilson, North Carolina. Because resolution of the issues before the court will directly impact the functioning of Chapter 13, the court opened the hearing to all interested Chapter 13 debtors, trustees, and creditors in the district and authorized the filing of briefs before and after the hearing. 1

In this district, after reviewing a debt- or’s petition, schedules, statements, proposed plan, and information provided at the § 341 meeting, the trustee will move for confirmation of a plan that he asserts is consistent with the requirements of Chapter 13. The motion may or may not incorporate all of the provisions from the debt- or’s proposed plan. The debtor is free to object to the trustee’s motion as is any other party in interest.

In the subject cases, the debtors propose plans with fixed durations subject to early termination. The early termination would take effect once the allowed secured claims, priority claims, and administrative claims required to be paid inside the plan are paid in full plus payment of any required dividend to non-priority, unsecured creditors. The proposed plans include the following language:

*745 This Chapter 13 plan will be deemed complete and shall terminate and a discharge shall be entered, at the earlier of, the expiration of said duration [the estimated proposed duration of the plan] or the payment in full of: (1) The following claims, proposed to be paid “inside” the plan, to the extent “allowed”: (1) Ar-rearage claims on secured debts, (ii) Secured claims (not including those to be paid “outside” the plan), (iii) Unsecured priority claims, (iv) Cosign protect claims (only where the Debtor proposes such treatment), plus (2) The required divided to unsecured, non-priority creditors, if any is required by 11 U.S.C. 1325(b). (For purposes of 11 U.S.C. 1325(b)(1)(B), “unsecured creditors” shall be deemed to mean all unsecured, creditors, including both priority and non-priority unsecured creditors.)

In the motions for confirmation filed by the Chapter 13 trustee in these cases, the above language is not incorporated. The debtors, therefore, object to the trustee’s motions for confirmation in these cases. The debtors assert that, in formulating a plan, they must estimate how much will be due and allowed on secured, priority, and administrative claims. The debtors, however, contend that claims are often filed and allowed in amounts less than estimated. The debtors argue that, by failing to include the possibility of early termination in the motions for confirmation, the trustee is requiring a fixed duration based upon a “pot plan” formula approach, disregarding the possibility that some claims might be allowed for less than anticipated.

The trustee asserts that, by including the early termination provisions in their proposed plans, the debtors are attempting to end the plans sooner than the applicable commitment period without full payment to unsecured creditors. The trustee contends that the applicable commitment period functions as a temporal period of either 3 or 5 years depending upon a debtor’s current monthly income. 11 U.S.C. § 1325(b)(4). “Applicable commitment period” and “current monthly income” are new terms under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The trustee argues that, based upon the plain language of 11 U.S.C. § 1325(b)(4)(B), the only way a plan can be shorter than the applicable commitment period is if all allowed unsecured claims are paid in full over a shorter period of time. The debtors disagree with the trustee’s interpretation of “applicable commitment period” and assert that the term functions as a multiplier rather than as a period of time.

While the trustee made no specific objection to the debtors’ calculations of disposable income under BAPCPA, he frowns upon the outcome resulting from those calculations, disagrees with the debtors’ interpretation of “projected disposable income,” and asserts that the debtors are violating the good faith requirement under § 1325(a)(3) by not proposing plans that make substantial contributions to unsecured creditors for the applicable commitment period.

Calculation of “Disposable Income”

Disposable income is now defined as “current monthly income ... other than child support payments, foster care payments, or disability payments for a dependent child ... less amounts reasonably necessary to be expended.... ” 11 U.S.C. § 1325(b)(l)(2). Current monthly income is a new term under BAPCPA defined as “the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor’s spouse receive)” during the 6-month period preceding the commencement of the *746 case or a date upon which the current income is determined by the court. 11 U.S.C. § 101(10A)(A). CMI excludes “benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism ... or domestic terrorism ...” 11 U.S.C. § lOl(lOAXB).

Prior to the passage of BAPCPA, in order to arrive at a disposable income figure for any Chapter 13 debtor, one would subtract monthly expenses reported on Schedule J from monthly income reported on Schedule I. The court had discretion regarding whether the listed expenses were reasonably necessary for the support of the debtor and any dependents. Now, there is a bifurcated process that hinges upon whether a debtor’s current monthly income is above or below the median family income for a similarly-sized household. In addition to Schedule I and J, Interim Rule 1007(b)(6) of the Federal Rules of Bankruptcy Procedure requires a debtor to file a statement of current monthly income prepared on the official form, known as “Form B22C, Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income.” The debtor reports her current monthly income in Part I of Form B22C and determines whether her currently monthly income is above or below the median family income in Part II of Form B22C. If a debtor’s currently monthly income, multiplied by 12, is greater than the median family income of similarly-sized households, then “amounts reasonably necessary to be expended” are determined in accordance with § 707(b)(2)(A) and (B). 11 U.S.C. § 1325

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Cite This Page — Counsel Stack

Bluebook (online)
344 B.R. 742, 56 Collier Bankr. Cas. 2d 427, 2006 Bankr. LEXIS 1272, 2006 WL 1876527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alexander-nceb-2006.