Robbins v. Denzin (In re Denzin)

534 B.R. 883
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedAugust 6, 2015
DocketCase No. 15-10277-RGM
StatusPublished
Cited by3 cases

This text of 534 B.R. 883 (Robbins v. Denzin (In re Denzin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robbins v. Denzin (In re Denzin), 534 B.R. 883 (Va. 2015).

Opinion

MEMORANDUM OPINION

Robert G. Mayer, United States Bankruptcy Judge

The question presented in this chapter 7 case is whether the debtors may claim their two mortgage debts as expenses in their chapter 7 means test calculation when they intend to surrender the property. The trustee and the debtors agree that if the debtors may claim the two mortgage debts then there is no presumption of abuse under 11 U.S.C. § 707(b)(2); otherwise, there is a presumption of abuse.1 This question was previously decided by this court.2 In re Crawley, 412 B.R. 777 (Bankr.E.D.Va.2009); In re Demesones, 406 B.R. 711 (Bankr.E.D.Va. [885]*8852008). The United States Trustee urges the court to overrule these decisions in light of the Court of Appeals’ decision in Morris v. Quigley (In re Quigley), 673 F.3d 269 (4th Cir.2012). Quigley rests principally on Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), but also Ransom v. FIA Card Services, N.A., 562 U.S. 61, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011). All three are chapter 13 cases.

Lanning addressed the question the proper calculation of the debtor’s “projected disposable income.” Id. 560 U.S. at 510,130 S.Ct. at 2469. “Projected disposable income” in § 1325(b)(1)(B) is not defined although “disposable income” is defined in § 1325(b)(2), for purposes of § 1325(b) only, as the current monthly income received by the debtor less amounts reasonably necessary to be expended. Current monthly income, in turn, is defined in § 101(10A). It is the debtor’s average monthly income for the six months preceding the filing of the petition.3 The definition makes no adjustment for unusually high or low income received during the six-month period. The six-month average may be, but is not necessarily, helpful in determining what an individual can reasonably be expected to earn on a regular basis during the three or five years of a chapter 13 plan. In Lanning the debtor received a one-time buyout payment during the six-month period. The chapter 13 trustee averaged the one-time buyout payment into the debtor’s regular monthly income and computed a chapter 13 plan payment that the debtor would not be able to sustain.

The Supreme Court focused on the adjective modifying “disposable income,” the word “projected.” It held that, “While a projection takes past events into account, adjustments are often made based on other factors that may affect the final outcome.” Lanning, 560 U.S. at 514, 130 S.Ct. at 2472. If there are known or virtually certain changes in the debtor’s income from the six-month average, the changes are to be taken into account in determining the debtor’s chapter 13 plan payment. The six-month average is the starting point in chapter 13.

[A] court ... should begin by calculating disposable income, and in most cases, nothing more is required. It is only in unusual cases that a court may go further and take into account other known or virtually certain information about the debtor’s future income or expense.

Id. 560 U.S. at 519,130 S.Ct. at 2475. It is a two-step process. First, the disposable income is calculated. Second, the disposable income is projected into the future and any appropriate adjustment is made.

Ransom, also a chapter 13 case, addressed the expense side of the debtor’s budget. The debtor sought to take the ownership allowance from the National Standards for a car that was fully paid. This would have been entirely appropriate had the car not been fully paid.4 The Supreme Court focused on the adjective to National Standard, “applicable.” It held [886]*886that where there was no car loan to be paid, the National Standard was not applicable.

In Quigley, the chapter 13 debtor had three secured debts she was not going to pay. Two were secured by ATVs which she was going to surrender. The third was a note she co-signed that was secured by a truck she neither owned or drove. She calculated her expenses by including the contractually due payments to determine the amount of her chapter 13 plan payment. This would have been proper had she intended to pay the secured debts during her plan. The Court of Appeals held that the three payments could not be included as expenses.

Quigley flows naturally from Lanning and Ransom. All three cases were chapter 13 cases determining the proper amount of the chapter 13 plan payment. All three involved pre-petition income (Lanning) or expenses (Ransom and Quigley) that the debtors knew at the confirmation hearing were different from their pre-petition income or expenses. In Lanning, it was known that the buyout bonus was a one-time payment that would overstate the debtor’s post-confirmation income. In Ransom and Quigley, it was known there was no car payment (Ransom) or that the secured debts would not be paid by the debtor post-confirmation (Quigley). Had the income or expense been included in the calculation of the chapter 13 plan payment, either the plan would have failed because the plan payment would have been too high, or the Congressional objective of reducing abuse by requiring debtors to pay their “projected disposable income” in the chapter 13 plan would have been frustrated. The proper analysis is a forward-looking analysis. “Projected disposable income” is, as the Supreme Court held, a projection of future income. The analysis is founded on the adjective “projected” in § 1325(b)(1)(B). It achieves the Congressional objective of assuring chapter 13 debtors are making their best efforts in repaying their debts.

The means test for chapter 7 eligibility serves a different purpose. It is designed to distinguish the honest but unfortunate debtor who is entitled to chapter 7 relief from the honest but less unfortunate debtor who is capable of repaying all or part of his debts and who is not entitled to chapter 7 relief. The chapter 7 means test looks to a debtor’s hypothetical budget. Basically, it blends uniform allowable expenses taken from the National Standards and Local Standards prepared by the Internal Revenue Service with contractual loan payments and various other modifications. 11 U.S.C. § 707(b)(2)(A). If the resulting monthly calculation multiplied by 60 is more than $12,475 or, if less, the greater of 25% of the debtor’s nonpri-ority unsecured claims or $7,475, there is a presumption of abuse in proceeding under chapter 7.

If a prospective chapter 7 debtor satisfies the § 707(b)(2) means test, he must also satisfy a second test to qualify for chapter 7, § 707(b)(3). The second test also seeks to distinguish debtors who could pay their creditors in whole or in part and direct them to chapter 13, from those who cannot and may enter chapter 7. Section 707(b)(3) requires that the petition be filed in good faith and that the totality of the debtor’s circumstances not demonstrate abuse. • The second test looks at the debtor’s actual post-petition income and expenses — rather than the blend of hypothetical and actual income and expenses— as well as other factors.

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Related

In re Lopez
574 B.R. 159 (E.D. California, 2017)
Robbins v. Hall (In re Hall)
569 B.R. 58 (W.D. Virginia, 2017)
In re Jackson
537 B.R. 238 (E.D. North Carolina, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robbins-v-denzin-in-re-denzin-vaeb-2015.