In Re Buck
443 B.R. 463
Bankr. N.D. Ga.2010Background
- Debtors filed Chapter 13 case on May 17, 2007; current monthly income above Georgia median for their household size.
- Plan proposed 60-month ACP with $340 monthly payments and 0% dividend to unsecured creditors, confirmed July 26, 2007.
- In December 2009, Debtor Buck lost employment; payments continued through June 2010; Buck stopped unemployment in July 2010.
- On July 6, 2010, Debtors filed a Modification to shorten ACP from 60 to 36 months; after payments for ~40 months, case would be ripe for discharge upon completion.
- Trustee objected to modification due to lack of amended Schedules I/J and ACP issue; Debtors filed amended schedules showing negative disposable income; after briefing, court tentatively overruled trustee but later denied modification.
- Court ultimately held § 1329 plan modifications cannot shorten ACP for above-median debtors; the plan remains 60 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ACP is a temporal requirement in modification. | Buck argues ACP can be shortened via § 1329. | Trustee relies on Tennyson and Lanning to enforce a 60-month ACP for above-median debtors. | ACP is a temporal requirement; modification cannot shorten ACP for above-median debtors. |
| Whether § 1329 incorporates § 1325(b)(1)(B) disposable income test into modifications. | § 1329 does not explicitly incorporate § 1325(b); modification may omit disposable income test. | § 1325(b) is incorporated into modifications by statutory structure and § 1325(a)(1). | § 1325(b) disposable income test is incorporated; above-median debtors cannot reduce ACP. |
| Whether a post-confirmation modification may shorten a plan's duration below the ACP for above-median debtors. | Modification should allow reducing ACP given changed circumstances. | Modification cannot shorten ACP below 60 months for above-median debtors. | Modification cannot shorten ACP below 60 months. |
| Role of Tennyson and Hamilton v. Lanning in interpreting ACP in § 1329 context. | Tennyson and Lanning support flexible income treatment and may permit modification. | Tennyson binds; Lanning does not support shortening ACP; flex in income does not alter ACP duration. | Tennyson/Lanning support ACP as temporal; cannot shorten ACP via § 1329. |
Key Cases Cited
- In re Tennyson, 611 F.3d 873 (11th Cir. 2010) (ACP is a temporal term for above-median debtors; five-year minimum to protect creditors)
- Hamilton v. Lanning, 130 S. Ct. 2464 (U.S. 2010) (flexible approach to determining projected disposable income; does not authorize ACP reduction)
- In re Keller, 329 B.R. 697 (Bankr. E.D. Cal. 2005) (pre-BAPCPA modification interpretations; disposable income test relevance)
- In re Hill, 386 B.R. 670 (Bankr. S.D. Ohio 2008) (post-BAPCPA interpretation of § 1329 applicability)
- In re Ewers, 366 B.R. 139 (Bankr. D. Nev. 2007) (pre- and post-BAPCPA views on modification without disposable income test)
- In re Ireland, 366 B.R. 27 (Bankr. W.D. Ark. 2007) (similar pre-BAPCPA modification considerations)
- In re Slusher, 359 B.R. 290 (Bankr. D. Nev. 2007) (modification scope post-BAPCPA considerations)
- In re McCully, 398 B.R. 590 (Bankr. N.D. Ohio 2008) (modification eligibility and income considerations)