In re Kramer

495 B.R. 121, 2013 WL 3712410, 2013 Bankr. LEXIS 2805
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJuly 12, 2013
DocketNo. 12-17674-FJB
StatusPublished
Cited by4 cases

This text of 495 B.R. 121 (In re Kramer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kramer, 495 B.R. 121, 2013 WL 3712410, 2013 Bankr. LEXIS 2805 (Mass. 2013).

Opinion

MEMORANDUM OF DECISION ON TRUSTEE’S OBJECTION TO CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN

FRANK J. BAILEY, Bankruptcy Judge.

The chapter 13 trustee has objected to confirmation of the debtors’ Chapter 13 [122]*122Plan. The basis of the objection is that the debtors have deducted from their income scheduled payments on their second mortgage that they have no intention of paying under the plan, that without this deduction the debtors’ projected disposable income exceeds the amount of the plan payment, and that consequently the plan fails to direct all available projected disposable income to payment of creditors. This presents the question of whether the Court should adopt a mechanical or a forward-looking approach to a chapter 13 debtor’s projected disposable income deduction for contractually scheduled payments on a secured debt where the debtor’s chapter 13 plan provides that no such payments will actually be made. For the reasons set forth below, the Court will adopt the forward-looking approach, disallow the debtors’ deduction for payments on their second mortgage from calculation of their projected disposable income, and sustain the Trustee’s objection.

I. FACTS AND PROCEDURAL HISTORY

On September 20, 2012, Ross Kramer and Susan Kramer (“the Debtors”) filed a bankruptcy petition and plan under chapter 13 of the Bankruptcy Code, thereby commencing the present case. The Debtors own real property at 33 Littlemore Road, Framingham, Massachusetts, which is valued at $230,500.00. This property is encumbered by a first-position mortgage to Everhome Mortgage Co. and a second, junior mortgage to Bank of America. The value of the property is less than the outstanding balance of $233,554.00 on the Ev-erhome mortgage loan.

The Debtors’ chapter 13 plan proposes a monthly payment of $1,200.00 for a term of 60 months. With these funds, the trustee would pay two priority claims totaling $15,000.00, an administrative claim for Debtors’ counsel’s fee of $2,431.00, the chapter 13 trustee’s fee, and a 24.59% dividend to general unsecured creditors. The Debtors would continue making payments on the unmodified, secured claims of Ever-home Mortgage Co., Fifth Third Bank (a secured ear loan), and Eastern Bank (a secured car loan). The Debtors would strip off the junior, Bank of America mortgage lien, cease regular payments on the loan it secures, and treat Bank of America entirely as a general unsecured creditor.

With their bankruptcy petition, the Debtors filed a Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (Form B22C) which stated their monthly disposable income as $653.29. The Debtors included in the calculation of their disposable income a deduction of $813.00 per month, representing scheduled payments on the Bank of America mortgage loan. On November 21, 2012, Carolyn Bankowski, the chapter 13 trustee (“the Trustee”), filed an Objection to Confirmation of Debtor’s Chapter 13 Plan, arguing that the Debtors are not entitled to deduct scheduled payments on their second mortgage from their monthly disposable income if they do not actually intend to make such payments under their chapter 13 plan. The Trustee further argued that by claiming this impermissible deduction, the Debtors had understated their projected disposable income, and consequently the Plan did not satisfy the best efforts test of 11 U.S.C. § 1325(b)(1)(B). After a hearing, the parties briefed the issue, and the Trustee’s objection is now ripe for disposition.

II. POSITIONS OF THE PARTIES

The Debtors claim that they may deduct payments on the Bank of America mortgage loan in the calculation of their projected disposable income under 11 U.S.C. [123]*123§ 707(b)(2)(A)(iii)(I), which provides for the deduction of payments scheduled as contractually due to secured creditors. While the Debtors intend to cease those payments under their chapter 13 plan, they cite to Morse v. Rudler (In re Rudder), 576 F.3d 37 (1st Cir.2009), where the First Circuit Court of Appeals held that the plain language of 11 U.S.C. § 707(b)(2)(A)(iii)(I) entitled a chapter 7 debtor to deduct mortgage payments on his home from his monthly income, despite his intent to surrender that home to the mortgagee. Id. at 52. The Debtors cite further to In re Marshall, 407 B.R. 1 (Bankr.D.Mass.2009), where the court applied the same reasoning developed in Rudler to facts similar to those of the instant case, holding that a chapter 13 debtor could deduct from his projected disposable income payments on a mortgage he intended to strip off. Id. at 8. The Debtors would have this Court follow Marshall and overrule the objection of the Trustee.

The Trustee argues that the Debtors’ deduction is impermissible in light of the United States Supreme Court’s rulings in Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), and Ransom v. FIA Card Services, —U.S.-, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011). In Lanning, the Court held that changes in a chapter 13 debtor’s income or expenses known at the time of confirmation should be taken into account when determining that debtor’s projected disposable income. Lanning at 2478. In Ransom, the Court held that a chapter 13 debtor could not claim the statutory standard expense for car ownership expenses where the debtor had no such expenses in reality. Ransom at 721. Taken together, the Trustee claims that these cases indicate that the Debtors are not entitled to claim a deduction from their projected disposable income for payments scheduled as contractually due to secured creditors where the Debtors do not intend to actually make those payments under their chapter 13 plan.

III. DISCUSSION

A court may not approve a chapter 13 plan over the Trustee’s objection unless the plan provides that all of the “debtor’s projected disposable income to be received” during the term of the plan “will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B) (2012). Disposable income is defined by the Bankruptcy Code as “current monthly income received by the debtor ... less amounts reasonably necessary to be expended.” 11 U.S.C. § 1325(b)(2) (2012). For debtors who, like the Kramers, earn an income greater than the state median income for a household of their size, “reasonably necessary” expenses are those allowable under 11 U.S.C. § 707(b)(2)(A)-(B), the chapter 7 means test. 11 U.S.C. § 1325(b)(3) (2012). Such expenses include a deduction for payments scheduled as contractually due to secured creditors. 11 U.S.C. § 707(b)(2)(A)(iii)(I) (2012).

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Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 121, 2013 WL 3712410, 2013 Bankr. LEXIS 2805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kramer-mab-2013.