In re Barnes

528 B.R. 501, 2015 Bankr. LEXIS 1264, 2015 WL 1570229
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedMarch 17, 2015
DocketCase Number 14-11079
StatusPublished
Cited by4 cases

This text of 528 B.R. 501 (In re Barnes) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Barnes, 528 B.R. 501, 2015 Bankr. LEXIS 1264, 2015 WL 1570229 (Ga. 2015).

Opinion

ORDER

SUSAN D. BARRETT, CHIEF UNITED STATES BANKRUPTCY JUDGE

Before the Court is an Objection to Confirmation filed by the Chapter 13 Trustee (“Trustee”) arguing that the chapter 13 plan submitted by Mark C. Barnes (“Debt- or”) does not satisfy 11 U.S.C. § 1325(b)(1) because it fails to propose to pay interest on Debtor’s allowed general unsecured claims and Debtor is not committing all of his disposable income into the plan. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L) and the Court has jurisdiction under 28 U.S.C. § 1334. For the following reasons, the Trustee’s objection to confirmation is sustained.

FINDINGS OF FACT

Debtor filed his chapter 13 bankruptcy petition on June 18, 2014. Debtor’s chapter 13 plan proposes to pay $1,125.00 for 60 months and “a 100% dividend or a pro-rata share of $7,500.00, whichever is greater.” Dckt. No. 4. According to Debtor’s means test calculation, Debtor is an above median debtor with the applicable commitment period of 5 years and a monthly disposable income of $930.77. Dckt. No. 2. However, according to Debtor’s schedule J, his current monthly net income is $2,102.87, well above his proposed monthly plan payment. Dckt. No. 1. Schedule I also includes a pro rated tax refund in the amount of $935.33 per month.

This matter involves two issues. The first issue is whether Debtor is proposing to contribute all of his projected disposable income into the plan. The second issue is whether Debtor must pay interest to his unsecured creditors when his plan proposes to pay a 100% dividend to his unsecured creditors over five years, but he fails to contribute all of his projected disposable income into the plan.

CONCLUSIONS OF LAW

Section 1325(b)(1) provides:

[503]*503(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.

11 U.S.C. § 1325(b)(1). The section is in the disjunctive requiring a debtor to comply with either § 1325(b)(1)(A) or § 1325(b)(1)(B) to overcome an objection by the Trustee or an unsecured creditor. Hamilton v. Lanning, 560 U.S. 505, 508-09, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010)(“If an unsecured creditor or the bankruptcy trustee objects to confirmation, § 1325(b)(1) requires the debtor either to pay unsecured creditors in full or to pay all ‘projected disposable income’ to be received by the debtor over the duration of the plan.”)(emphasis added); In re Sampson-Pack, 2014 WL 1320371, at *2 (Bankr.D. Md. March 31, 2014)(same); In re Bailey, 2013 WL 6145819, at *1 (Bankr. E.D.Ky. Nov. 21, 2013) (same) (quoting In re Jones, 374 B.R. 469, 469 (Bankr.D.N.H. 2007)); In re Winn, 469 B.R. 628, 630 (Bankr.W.D.N.C.2012) (“Only one of the prongs [of § 1325(b)(1) ] need be met, not both.”).

The Trustee contends Debtor’s plan does not satisfy 11 U.S.C. § 1325(b)(1)(A) because the language “as of the effective date of the plan-the value of the property to be distributed” requires a present value determination which requires Debtor to pay interest on allowed unsecured claims. See In re Hight-Goodspeed, 486 B.R. 462, 464 (Bankr.N.D.Ind.2012). The Trustee also argues Debtor’s plan fails to satisfy subsection (B) because the Debtor is not proposing to pay all of his projected disposable income into his plan for the applicable commitment period.1

Conversely, Debtor contends he has satisfied both prongs of § 1325(b)(1). First, he claims he has satisfied § 1325(b)(1)(B) because his projected tax refund should not be included in the Trustee’s calculation of his projected disposable income. With the tax refund properly excluded, Debtor argues he is devoting all of his disposable income to the plan and therefore his proposal satisfies § 1325(b)(1)(B). Second, Debtor argues § 1325 (b)(1)(A) does not require him to pay interest therefore his plan is confirmable under § 1325(b)(1)(A). 11 U.S.C. § 1325 (b)(1)(B).

The Bankruptcy Code defines the term “disposable income” to mean:

current monthly income received by the debtor (other than child support payments, foster care payments, or disability payments for a dependent child made in accordance with applicable nonbank-ruptcy law to the extent reasonably necessary to be expended for such child) less amounts reasonably necessary to be expended—
(A)(i) for the maintenance or support of the debtor or a dependent of the debtor, or for a domestic support obligation, that first becomes payable after the date the petition is filed; and
[504]*504(ii) for charitable contributions (that meet the definition of “charitable contribution” under section 548(d)(3)) to a qualified religious or charitable entity or organization (as defined in section 548(d)(4)) in an amount not to exceed 15 percent of gross income of the debtor for the year in which the contributions are made; and
(B) if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business.

11 U.S.C. § 1325(b)(2). Current monthly income:

(A) means the average monthly income from all sources that the debtor receives ... without regard to whether such income is taxable income ... and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor’s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor’s spouse if not otherwise a dependent), but 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 intemation.al terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331

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Cite This Page — Counsel Stack

Bluebook (online)
528 B.R. 501, 2015 Bankr. LEXIS 1264, 2015 WL 1570229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barnes-gasb-2015.