In re Wise

476 B.R. 653, 2012 WL 3536469, 2012 Bankr. LEXIS 3776
CourtUnited States Bankruptcy Court, District of Columbia
DecidedAugust 16, 2012
DocketNo. 12-00262
StatusPublished
Cited by2 cases

This text of 476 B.R. 653 (In re Wise) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wise, 476 B.R. 653, 2012 WL 3536469, 2012 Bankr. LEXIS 3776 (D.C. 2012).

Opinion

MEMORANDUM DECISION RE DEBTOR’S SECOND AMENDED PLAN

S. MARTIN TEEL, JR., Bankruptcy Judge.

The debtor, Raymond Wise, Jr. has filed a second amended plan. The trustee has objected to confirmation of the plan. Wise calculated that over the plan’s applicable commitment period of 36 months, “projected disposable income,” as that term is used in 11 U.S.C. § 1325(b)(1)(B), and amounts necessary to effectuate a cure of the pre-petition arrears he owes Wells Fargo Bank, N.A. on his home mortgage would total $11,988. Wise proposes in the plan to pay that $11,988 amount via paying the trustee $333 per month for 36 months. The court will confirm the plan with a modification of the timing of the payment of the $11,988 (in order to effectuate a cure within a reasonable time of the prepetition arrears owed on Wells Fargo’s prepetition arrears claim that is secured by a mortgage on Wise’s principal residence).

I

The chapter 13 trustee has objected to confirmation of the plan, first, by invoking 11 U.S.C. § 1325(b)(1).1 By reason of the trustee having invoked § 1325(b)(1), the [656]*656plan, which does not call for unsecured claims to be paid in full, cannot be confirmed “unless, as of the effective date of the plan ... the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment ... will be applied to make payments to unsecured creditors under the plan.” Specifically, the trustee contends that Wise’s calculation that “projected disposable income” is $11,988, less amounts necessary to cure his prepetition mortgage arrears, must be adjusted in two ways:

(1) Wise’s Social Security income of $366 per month must be included as income, and
(2) the amounts required to accomplish a cure of Wells Fargo’s prepetition arrears claim under the plan must not be included as an expense.

Part III of this decision overrules that objection.

The chapter 13 trustee has also objected that the plan does not comply with 11 U.S.C. § 1322(b)(5) because the cure of Wells Fargo’s prepetition arrears claim would not be made within “a reasonable time.” In response, Wise has agreed to modify the plan to accelerate the payment of his “projected disposable income” of $11,988 by increasing payments to $699 per month for the first 15 months of the plan, which will suffice to pay the Wells Fargo arrears claim in full,2 with the balance of the $11,988 to be paid via payments of $71.58 per month for the duration of the 36-month plan. That modification provides for a cure of Wells Fargo’s pre-petition arrears claim within a reasonable time as required by § 1322(b)(5). The modification also benefits unsecured creditors because it necessarily results in the amounts that will be paid to them being paid sooner.

Nevertheless, Wise’s modification of his plan presents an additional § 1325(b)(1)(B) issue. The trustee objected at the confirmation hearing that if Wise is correct in his calculation that, before curing the pre-petition mortgage arrears, he has projected disposable income of $333 per month, then after paying $699 per month for the first 15 months of the plan to wipe out the prepetition mortgage arrears, Wise would then have $333 in monthly disposable income. Accordingly, she argues, Wise is required by § 1325(b)(1)(B) to pay $333 for the remaining 21 months of the plan. Part IV of this decision overrules that objection.

The trustee raises one other objection beyond her objections based on § 1325(b)(1)(B). She objects that 11 U.S.C. § 1325(a)(3) imposes a separate requirement that a plan be proposed in good faith, and that because Wise has an ability, by reason of his Social Security income, to pay more in plan payments than the $11,988 he is proposing, the plan is not proposed in good faith. Part V of this decision overrules that objection.

II

The parties are in agreement that if, in calculating projected disposable income over the life of the plan:

[657]*657(1) Wise’s Social Security income is excluded as income, and
(2) the amounts needed to cure Wise’s prepetition mortgage arrears debt to Wells Fargo (plus the 10% trustee commission thereon) were not included as deductions against income,

then Wise’s projected disposable income would be, on average, $333 per month, resulting in $11,988 in projected disposable income over the life of the plan.

The plan calls for the trustee to use the $11,988 in plan payments to cure the $9,147.29 in prepetition arrears owed to Wells Fargo, with the cure payments to not include postpetition interest on the arrears, and to use the remainder to pay unsecured claims. With the trustee receiving a commission of 10%, that would leave only $1,925.98 in plan payments after satisfying Wells Fargo’s prepetition arrears claim.3 Wise contends that his projected disposable income amounts to that $1,925.98 because he is allowed to deduct the amounts necessary to effectuate his prepetition mortgage arrears cure in calculating projected disposable income. That $1,925.98 will fall far short of paying allowed unsecured claims in full.

Ill

The trustee raises two objections regarding Wise’s calculation of “projected disposable income.” Neither is a sound objection.

A

First, the trustee contends that Wise’s Social Security income of $366 per month must be included in calculating “projected disposable income” to be received in the 36-month commitment period. The trustee concedes that the term “disposable income” does not include Social Security income. The term “disposable income” means “current monthly income received by the debtor” less amounts “reasonably necessary to be expended” for, among other things, the debtor’s maintenance and support.4 In turn, § 101(10A) defines “current monthly income” as average monthly income the debtor receives over a specified six-month look-back period but excludes “benefits received under the Social Security Act” (and excludes certain other income of no relevance here).5

[658]*658The term “projected disposable income” is not defined, but Hamilton v. Lanning, — U.S. -, 130 S.Ct. 2464, 2478, 177 L.Ed.2d 23, 39-40 (2010), held that “when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation.” In other words, when there are known changes that will occur in a debtor’s income, “projected disposable income” is not calculated using income in the six-month look-back period specified in the § 101(10A)(A) definition of “current monthly income” and the changed income may be utilized in arriving at a projection of “disposable income” in order to determine “projected disposable income.”6

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Cite This Page — Counsel Stack

Bluebook (online)
476 B.R. 653, 2012 WL 3536469, 2012 Bankr. LEXIS 3776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wise-dcb-2012.