In re Boyd

487 B.R. 669, 2013 WL 145751, 2013 Bankr. LEXIS 145
United States Bankruptcy Court, E.D. North Carolina·Decided January 14, 2013·No. No. 12-06306-8-RDD·Published·Cited by 2 cases

Opinion

ORDER

RANDY D. DOUB, Bankruptcy Judge.

Pending before the Court is the Trustee’s Motion to Dismiss filed by the Chapter 13 Trustee (the “Trustee”) on October 16, 2012, the Memorandum of Law in Sup[672] port of Trustee’s Objection to Debtors’ Confirmation and Motion to Dismiss filed by the Trustee on December 3, 2012, the Response to Trustee’s Motion to Dismiss and Request for Hearing filed by Tammy Boyd (the “Debtor”) on October 18, 2012, and the Supplemental Response to Trustee’s Objection to Confirmation and Motion to Dismiss filed by the Debtor on December 9, 2012. The Court conducted a hearing on this matter on December 10, 2012 in Raleigh, North Carolina.

The Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code on September 4, 2012. Richard M. Stearns was duly appointed as the Trustee, and has filed a Motion to Dismiss1 for failure to file a confirmable plan. The Debtor has filed the required Schedules A through J, a Statement of Financial Affairs, a master Mailing Matrix, and a Chapter 13 Statement of Income and Calculation of Commitment Period and Disposable Income (hereinafter the “B22C”). After completing Parts I and II of the B22C, the Debtor calculated her household income to be below the median family income in North Carolina for comparably sized households and listed no disposable income from B22C.

The Debtor filed a proposed Chapter 13 plan pursuant to 11 U.S.C. § 1321 (the “Plan”). The plan proposes to pay $96.00 for fifty-seven (57) months. The total of plan payments is $5,472.00. Debtor is requesting $2,800.00 in attorneys’ fees. Schedule F shows that the Debtor has approximately $4,952.38 in unsecured claims. Schedule I shows a combined average monthly income of $774.00. Schedule J shows average monthly expenses of $667.00 leaving a monthly net income of 107.00.2 The Debtor has non-exempt equity in a 2010 Hyundai Elantra of $2,975.00.3

The Debtor’s plan contains language commonly referred to as “early termination language,” and states:

This Chapter 13 Plan will be deemed complete and shall terminate and a discharge shall be entered, at the earlier of the expiration of 36 months or the payment of: (1) The following claims proposed to be paid “inside” the plan, to the extent “allowed”: (i) Arrearage claims on secured debts, (ii) Secured claims (not included those to be paid “outside” the plan), (iii) dividend 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 [673] unsecured creditors, including both priority and non-priority unsecured creditors. Joint debts secured by consumer goods shall be paid in full.

With the early termination language, the plan proposes a 0% payout to unsecured creditors. In addition, the early termination language does not provide for payments required to be made to meet the liquidation or best interest of the creditors test set out in 11 U.S.C. § 1325(a)(4).4 For the following reasons, the plan as filed cannot be confirmed.

DISCUSSION

The issue before the Court is whether this debtor, who has zero or less disposable income, as determined by Form B22C, may obtain confirmation of a Chapter 13 plan, which in effect will terminate before the respective applicable commitment period when the plan proposes to discharge substantial amounts in unsecured debt and pay only the Trustee commission and the debtor’s attorney fees.

The Court shall confirm a Chapter 13 plan if the provisions of 11 U.S.C. § 1325(a) are met. In cases where an objection to confirmation has been made by either the trustee or an unsecured creditor the court may not confirm a plan unless:

(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).

11 U.S.C. § 1325(b)(4) defines “applicable commitment period” as

(A) subject to paragraph (B), shall be—
(i) 3 years; or
(ii) not less than 5 years, if the current monthly income of the debtor and the debtor’s spouse combined, when multiplied by 12, is not less than—
(I) in the case of a debtor in a household of 1 person, the median family income of the applicable State for 1 earner;
(II) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals; or
(III) in the case of a debtor in a household exceeding 4 individuals, the highest median family income of the applicable State for a family of 4 or fewer individuals, plus $625 per month for each individual in excess of 4; and
(B) may be less than 3 or 5 years, whichever is applicable under subpara-graph (A), but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period.

The phrase “projected disposable income” is not defined in the Bankruptcy Code. The Code defines “disposable income” as “current monthly income to be received by the debtor5 ... less amounts [674] reasonably necessary to be expended ...” 11 U.S.C. § 1325(b)(2). The phrase “amounts reasonably necessary to be expended” includes the full amount needed for “maintenance or support,” for a debtor whose income is below median for his or her state, but for an above-median-income debtor, only certain expenses are included. Hamilton v. Lanning, — U.S.-, 130 5.Ct. 2464, 2470, 177 L.Ed.2d 23 (2010).

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In re Boyd, 487 B.R. 669, 2013 WL 145751, 2013 Bankr. LEXIS 145 (N.C. 2013).

487 B.R. 669 (In re Boyd) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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