In Re Stewart
AMENDED MEMORANDUM OPINION
Emily Hawkins (“Hawkins”), an unsecured creditor,
1
mоved to dismiss the debtors’ (the “Stewarts”) bankruptcy case un
Having listened to testimony and argument from both parties and considered the record, including relevant documents from the docket and relevant legal authorities, I deny Hawkins’s motion to dismiss under § 707(b)(2) and § 707(b)(3)(B) for the following reasons.
Background
The Stewarts filed their chapter 7 bankruptcy petition on July 2, 2008. Consistent with § 521(a)(2)(A) and Rule 1007(b)(4) [Interim], the Stewarts filed a “Chapter 7 Statement of Current Monthly Income and Means-Test Calculation” (“Original Form B22A”) and a “Statement of Intention(s) Per 11 U.S.C. § 521(a)” (“Statement of Intent”).
The Stewarts indicated on the Original Form B22A that, based on their calculations, the presumption of abuse under § 707(b)(2) did not arise. 4 On the Originаl Form B22A, they listed current monthly income of $5,815, which resulted in an annualized current income of $69,780. Although their annualized current monthly income exceeded the applicable median family income of $53,236 for a household of two in Oregon, 5 their deductions resulted in a monthly disposable income of - $4,653.42, or a 60-month disposable income of -$279,205.20, thereby demonstrating that they qualified for chapter 7 relief.
In calculating their monthly disposable income for § 707(b)(2) purposes, on line 42
The Stewarts represented on their petition that their debts were primarily consumer debts. They listed on their schedules $522,000 in secured debt and $369,960 in general nonpriority unsecured debt. 7 The Stewarts’ only secured debt was the mortgage on their former residence. The Stewarts’ general unsecured debt consisted mainly of credit card debt and debt for building materials and contraсtor services. They listed an average monthly income of $5,380 on their Schedule I and average monthly expenses of $4,357 on their Schedule J.
Olga Stewart, who started her employment as a traveling registered nurse on July 14, 2008, reported a gross income of $4,507 on Schedule I. The Stewarts included a car rental stipend of $650 and a housing stipend of $1,350 from Olga Stewart’s employer in calculating their average monthly income on Schedule I. The Stew-arts did not list the monthly mortgage payment on their Schedule J; in fact, they did not include rent or a mortgage payment as an expense. They noted, however, that they would have a monthly housing expense of approximately $1,350 after five months. To date, the Stewarts have not amended their Schedule I and Schedule J.
Four days after the § 341(a) meeting on August 1, 2008, the United States Trustee filed a statement pursuant to § 704(b)(1), indicating that the case was not presumed to be an abuse under § 707(b)(2).
Hawkins soon thereafter filed what I have interpreted as a motion to dismiss under § 707(b) (“Motion to Dismiss”). She asserted that, as they intended to surrender the residence and no longer occupied it, the Stewarts inappropriately included the monthly mortgage payment in calculating their monthly disposable income. Hawkins contended that, by reducing their housing expense to the amount allowed under the Internal Revenue Service (“IRS”) local standards (“Local Standards”), the Stewarts would have substantial monthly disposable income with which to fund а chapter 13 plan. She also argued that, given the totality of their actual financial circumstances, granting the Stew-arts relief would be an abuse of chapter 7. 8
The Stewarts filed an “Amended Chapter 7 Statement of Current Monthly Income and Means-Test Calculation” (“Amended Form B22A”) several weeks before the January 12, 2009 final evidentiary hearing on the Motion to Dismiss. On
Several hours after the final evidentiary hearing, the Stewarts filed a “Second Amended Chapter 7 Statement of Current Monthly Income and Means-Test Calculation” (“Second Amended Form B22A”). 11 The Second Amended Form B22A reflected an increased current monthly income of $6,294, which resulted in an annualized current income of $75,528. The Second Amended Form B22A also listed an increased deduction of $1,558 for federal, state and local taxes. The monthly mortgage payment remained the same. The net result of the Second Amended Form B22A was to reduce the Stewarts’ monthly disposable income to -$1,050.65, and their 60-mоnth disposable income to - $63,039.
Upon the Stewarts’ filing of the Second Amended Form B22A, I took the matter under submission. This Memorandum Opinion constitutes my findings of fact and conclusions of law, which I make under Fed.R.Civ.P. 52(a), applicable in this contested matter under Fed. R. Bankr.P. 7052 and 9014. I have jurisdiction to resolve this matter under 28 U.S.C. §§ 1334(b), 157(a), 157(b)(1), and 157(b)(2)(A) and (O). Discussion
Under § 707(b)(1), I may dismiss a case if I determine that the granting of relief would be an abuse of the provisions of chapter 7.
12
Section 707(b) sets forth two
As noted above, § 707(b)(2) provides a mathematical formula — the means test — to determine whether a debtor has sufficient monthly disposable income with which to repay at least a significant portion оf his or her debts. 13 Id. If the debtor has sufficient monthly disposable income to pay some or all of his or her debts, the ease may be presumed to be an abuse of chapter 7, justifying dismissal or, if the debtor consents, conversion to chapter 11 or chapter 13.
Even if no presumption of abuse arises under § 707(b)(2), or the debtor manages to rebut the presumption of abuse, I must consider under § 707(b)(3) whether the case is nonetheless an abuse of chapter 7 because either the debtor filed the case in bad faith or the totality of the circumstances of the debtor’s financial situation demonstrates abuse.
In re Sorrell,
The standards regarding dismissal under § 707(b)(2) and (b)(3) are different. With respect to dismissal under § 707(b)(2), in this case, I must interpret § 707(b)(2)(A)(iii)(I). Specifically, are the Stewarts entitled to deduct secured debt payments from their current monthly income in calculating their disposable monthly income under the means test set forth in § 707(b) (2) (A) (i), notwithstanding then-surrender of the collateral?
As to dismissal under § 707(b)(3)(B), I must decide whether the Stewarts financial situation demonstrates abuse in the totality of the circumstances.
A. § 707(b)(2)
Hawkins contends that the Stew-arts initially passed the means test only by including the mortgage payment for their surrendered residence in calculating then-monthly disposable income. Although she acknowledges that the Stewarts are entitled to deduct housing expenses, Hawkins argues that deducting the monthly mortgage payment is inappropriate, as it is not reasonable and necessary under § 707(b)(2).
Hawkins asserts that the monthly mortgage payment is unreasonable because the Stewarts lack the means to make the mortgage payment. She contends that the mortgage payment is unnecessary because the Stewarts no longer occupy the residence, having moved to the U.S. Virgin Islands.
The issue before me regarding the Motion to Dismiss under § 707(b)(2) centers on the interpretation of § 707(b)(2)(A)(iii)(I). Section 707(b)(2)(A)(iii)(I) provides, in relevant part:
(iii) The debtor’s average monthly payments on account of secured debts shall be calculated as the sum of—
(D the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition....
Hawkins cites to § 707(b)(2)(A)(ii)(V) as the basis for excluding the monthly mortgage payment in the Stewarts’ means test calculations. Her rebanee on this рrovision is misplaced in this context. 15
Section 707 (b)(2)(A)(ii)(V) allows a debtor to deduct expenses for utilities and other non-mortgage housing expenses in excess of the Local Standards, based on his or her actual expenses for home energy costs.
16
See In re Simmons,
Hawkins also argues that the monthly mortgage payment exceeds the amount allowed under the Local Standards. The Stewarts, she asserts, only should be permitted to deduct the amount set under the Local Standards. I note that the Stewarts took no deduction for mortgage expenses under the Local Standards.
17
The Stew-
1. Split in authority in interpreting § 707(b) (2) (A) (iii) (I)
Interpreting a statute begins with its language,
Hughes Aircraft Co. v. Jacobson,
A split in authority has developed among courts interpreting § 707(b)(2)(A)(iii)(I).
See, e.g., In re Makres,
Although most courts on either side of the split agree that interpretation of § 707(b)(2)(A)(iii)(I) is governed by the plain language of the statute, their interpretations differ.
See id.
at 33.
See also In re Hayes,
Under the minority view, “[a debtor’s] schedules and statements [together] form the basis from which the Court should determine whether a debt is ‘scheduled as contractually due.’ ”
In re Skaggs,
Focusing on the phrase, “contractually due,” without considеring the import of the term “scheduled” and the phrase “in each of the 60 months following the date of the petition” “miss[es] the actual meaning and intent of § 707(b)(2),” the primary purpose of which was to ensure that those debtors who can repay their debts do so.
Skaggs,
Under the majority view, epitomized by
In re Walker,
“Scheduled” means “ ‘to plan for a certain date,’ ” while “as contractually due,” means that “the debtor is legally obligated under the contract ... to make a payment in a certain amount ... for a set number of months into the future.”
Walker,
A debtor’s surrender of the collateral does not affect his or her ability to take the deduction under the means test, which provides an historical “snapshot” of the debtor’s financial circumstances averaged over a period of six months prepetition. As Walker reasons:
The use of the phrase “contractually due” also indicates an intent to permit a deduction for all secured debts, regardless of whether ... the collateral is surrendered. The surrender of the collateral does not change the fact that the payments are “contractually due.” When a debtor files the bankruptcy petition, the debtor is contractually due for payments on the outstanding secured debts for the length of the contract. The debtor’s contractual liability for the debt is not eliminated upon the surrender of thе collateral. At the earliest, it may be eliminated by the entry of the discharge. At the latest, the contractual obligation may never actually be eliminated, but instead, the creditor would merely be enjoined from collecting the debt from the debtor in personam. In other words, nothing the debtor does or does not do changes the fact that scheduled payments remain contractually due.
Even if the debtor does surrender the collateral, the surrender of the collateral does not change the fact that the payments are “scheduled as contractually due to a secured creditor.” Following the surrender of the collateral, the creditor remains a secured creditor at least until the collatеral has been liquidated and the proceeds are applied to satisfy the debt.
Id.
at *4 (citations omitted).
See also Haar,
2. Section 707(b)(2)(A)(iii)(I), interpreted according to its terms, allows the Stewarts to deduct debt payments on their surrendered residence
Based on my review of both the majority and minority decisions, I conclude that the majority view provides a better reasoned analysis that comports with the plain meaning approach to statutory construction.
The minority’s interpretation of § 707(b)(2)(A)(iii)(I) does not accord with the plain meaning approach. As the court in
In re Randle
pointed out, the plain language of the statute “does not say that the debtor can deduct this amount only if she intends to keep the collateral post-petition. It does not say that the debtor can deduct this amount only if she intends to continue making the payments due post-petition.”
By conditiоning the debtor’s use of the deduction under § 707(b)(2)(A)(iii)(I) on whether he or she retains the collateral and actually makes payments on it, the minority is inserting language into the statute which is at variance with its plain meaning.
See Simmons,
I agree with the majority that under a plain reading of its language, § 707(b)(2)(A)(iii)(I) allows debtors, when calculating their monthly disposable income under the means test, to deduct from their current monthly income the average payments on debts secured by collaterаl that they surrender. Reading the words in § 707(b)(2)(A)(iii)(I) as a whole, I find that the statute does not require debtors to retain the collateral and actually make payments on secured debts “as a prerequisite to allowing the deduction.”
18
Benedetti,
Accordingly, I find that the Stewarts appropriately may deduct thеir monthly mortgage expense under § 707(b)(2)(A)(iii)(I) in calculating their monthly disposable income. At the time they filed their chapter 7 petition, the
Deducting the mortgage payment from their current monthly income, as allowed under § 707(b)(2) (A) (iii) (I), I determine that the Stewarts have a negative disposable income. Accordingly, no presumption of abuse arises under § 707(b)(2)(A), and I deny the Motion to Dismiss under § 707(b)(2).
B. Dismissal based on the totality of the circumstances under § 707(b)(3)(B)
Section 707(b)(3) provides, in relevant part:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in subparagraph (A)(i) of such paragraph does not arise or is rebutted, the court shall consider—
(B) the totality of the circumstances ... of the debtor’s financial situation demonstrates abuse.
Section 707(b)(3)(B) does not provide any guidance as to the factors to consider in evaluating the totality of the debtor’s financial circumstances.
In re Talley,
The Ninth Cirсuit considers six nonexclusive factors in evaluating the totality of the circumstances under § 707(b)(3):
(1) Whether the debtor has a likelihood of sufficient future income to fund a Chapter 11, 12 or 13 plan which would pay a substantial portion of the unsecured claims;
(2) Whether the debtor’s petition was filed as a consequence of illness, disability, unemployment, or some other calamity;
(3) Whether the schedules suggest the debtor obtained cash advancements and consumer goods on credit exceeding his or her ability to repay them;
(4) Whether the debtor’s proposed family budget is excessive or extravagant;
(5) Whether the debtor’s statement of income and expenses is misrepresenta-tive of the debtor’s financial condition; and
(6) Whether the debtor has engaged in eve-of-bankruptcy purchases.
Price v. United States Trustee (In re Price),
Among the six
Price
factors, the Ninth Circuit has determined that the debtor’s ability to pay his or her debts is of primary importance.
Id.
at 1140. Thus, “a debtor’s ability to pay his debts will, standing alone, justify a section 707(b) dismissal.”
Id.
(quoting
Zolg v. Kelly (In re Kelly),
Although
Price
concerned interpretation of pre-BAPCPA § 707(b), the first factor retains its importance in a determination of abuse under current § 707(b)(3).
See In re McUne,
Hawkins advances arguments on the first and sixth Price factors. I addrеss her arguments in reverse order.
With respect to the sixth Price factor, based on the Stewarts’ testimony, I find Hawkins’s argument unavailing. Hawkins alleges that the Stewarts took a month-long “exotic vacation” and two trips between Oregon and the Virgin Islands, and purchased expensive new wardrobes, all immediately before their bankruptcy filing. At the final evidentiary hearing, Joshua Stewart testified that the Stewarts had spent less than $1,000 on their entire trip to Thailand; they spent $3 to $5 a day for a “hut on a beach” and between 50 cents and $1 per meal. Olga Stewart testified that she and Joshua vacationed in Thailand in April 2008, three months before they filed their chapter 7 petition. She also testified that it was not until June 2008, when the Stewarts began recеiving calls from one of their creditors, that they contemplated filing for bankruptcy. As to the Stewarts’ alleged purchase of new wardrobes, Hawkins provided no evidence, aside from her testimony, to establish that the Stewarts engaged in such purchases.
As to the first Price factor, Hawkins contends that the Stewarts should not include their monthly mortgage payment as a deduction in calculating their monthly disposable income. Instead, Hawkins claims, the Stewarts should be allowed $1,800 for housing and utilities, as established under the Local Standards.
Eliminating the $3,589 monthly mortgage payment, using the $1,800 as the allowed IRS deduction for housing and utilities, and keeping remaining deductions the same, the Stewarts have monthly expense deductions totaling $5,554.75. My calculations are as follows:
Part V. Calculation of Deductions from income
Subpart A: Deductions under Standards for IRS
19A National Standards: food, clothing and other items_$961
19B National Standards: health care_$114
20A Local Standards: housing and utilities; non-mortgage expenses_$505
20B Local Standards: housing and utilities; mortgage/rent expense_$1,800
22A Local Standards: transportation; vehicle operation/public transportation _expense_$211
25 Other Necessary Expenses: taxes_$1,558
33 TOTAL EXPENSES ALLOWED UNDER IRS STANDARDS$5,149
Subpart C: Deductions for Debt Payment_
44 Payments on prepetition priority claims_$10.75
45 Chapter 13 administrative expenses_$395
46 TOTAL DEDUCTIONS FOR DEBT PAYMENT $405.75
Subpart D: Total Deductions from income
TOTAL OF ALL DEDUCTIONS ALLOWED UNDER § 707(B)(2). $5,554.75
Under the first
Price
factor, the Stew-arts must have a likelihood of sufficient future income to fund a plan that would pay a significant portion of their unsecured claims.
When the debtor is an individual in chapter 11, the plan must provide for payment of all or such portion of earnings from personal services performed by the debtor or other of the debtor’s future income to creditors under the plan as is necessary for its execution. 11 U.S.C. § 1123(a)(8). 20
In order for the plan to be confirmed оver an unsecured creditor’s objection, an individual debtor in chapter 11 either must pay all unsecured claims in full or propose a plan that devotes an amount equal to five years’ [60 months] worth of his or her projected disposable income to unsecured creditors. 11 U.S.C. § 1129(a)(15).
21
The
Based on the record before me, Hawkins has not established that the Stewarts have sufficient excess incomе to fund a chapter 11 plan that would pay a substantial portion of their unsecured debt, i.e., more than pennies on the dollar, over the term of a five-year plan.
Given these circumstances, I do not find that the first Price factor has been satisfied and I conclude that in the totality of the circumstances, dismissal of the Stew-arts chapter 7 case is not appropriate under § 707(b)(3).
Conclusion
Based on the foregoing analysis and review of the record before me, I deny the Motion to Dismiss. The court will enter an order consistent with the conclusions reached in this Memorandum Opinion.
Notes
. The Stewarts scheduled Hawkins as a general unsecured creditor with a $19,168 contingent claim, based on claim(s) arising from her short-sale purchase of the Stewarts’ condominium unit.
. Unless otherwise indicated, all chapter, section and rule references are to the federal Bankruptcy Code, 11 U.S.C. §§ 101-1532, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, as enacted and promulgated as of October 17, 2005, the effective date of most of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8, 110 Stat. 23 ("BAPCPA”).
. Hawkins actually filed an objection to the chapter 7 trustee's motion to settle and compromise a dispute with the Stewarts regarding their claimed exemptions and a pre-petition payment to their parents. At the preliminary hearing on October 22, 2008, I decided to treat Hawkins's objection as a motion to dismiss the case under § 707(b) and to abate consideration of approval of the proposed settlement.
. BAPCPA amended § 707(b), which governs dismissal of chapter 7 cases.
Fokkena v. Hartwick,
Section 707(b)(2) provides a complex mathematical formula, commonly known as the "means test,” which "gauges a debtor’s ability to repay his or her debts by measuring how much disposable income the debtor will have each month, after the deduction of allowable expenses.”
In re Lindstrom,
.Section 707(b)(7) provides a "safe harbor” for debtors whose annualized current monthly income (i.e., the debtor’s current monthly income, as defined under § 101(10A), multiplied by 12) is equal to or less than the median family income for a family the size of the debtor’s household in the applicable state. In that instance, the presumption of abuse does not arise, and the debtor is not required to complete thе means test. Here, the Stew-arts’ annualized current monthly income exceeded the applicable median family income for a household of two in Oregon, requiring the Stewarts to complete the means test calculations.
.The Stewarts indicated on their Statement of Financial Affairs that they last occupied the residence in April 2008. They noted on their schedules that they were moving to the U.S. Virgin Islands as of the petition date and listed on their petition a street address in the U.S. Virgin Islands.
. This amount does not include the $72,000 unsecured portion of the secured mortgage creditor's claim, as listed by the Stewarts on their Schedule D.
. Hawkins did not make this argument in the Motion to Dismiss, but at the final evidentiary hearing on January 12, 2009.
. The Stewarts adjusted their expenses in the Amended Form B22A to reflect a deduction for taxes “withheld from Olga's pay.” Memorandum in Response to 707(b) Motion Filed by Creditor at 2, docket no. 32. The Stewarts explained that, at the time they filed their bankruptcy petition, Olga Stewart had obtained employment as a traveling nurse in the U.S. Virgin Islands. Memorandum in Response to § 707(b) Motion Filed by Creditor at 2, docket no. 32. Because they did not know how much of her income would be taxed, the Stewarts did not list a deduction for taxes in the Original Form B22A. Memorandum in Response to § 707(b) Motion Filed by Creditor at 2, docket no. 32. Upon determining her tax withholding, they modified their expenses in their Amended Form B22A.
. The Stewarts filed the Amended Form B22A to reflect their actual monthly mortgage payments. In the Original Form B22A, they included the entire mortgage balance averaged over 60 months, believing that the terms of the mortgage required a balloon payment in full or a refinance after completion of the construction of their residence. Memorandum in Response to 707(b) Motion Filed by Creditor at 1, docket no. 32. The Stewarts later discovered that the mortgage had a 30-year term, which called for interest-only payments of $3,589 per month for the first five years of the term. Memorandum in Response to 707(b) Motion Filed by Creditor at 2, docket no. 32. They adjusted the mortgage payment in the Amended Form B22A accordingly-
. At the final evidentiary hearing, I advised the parties that I would not issue a ruling until the Stewarts filed another amended Chaptеr 7 Statement of Current Monthly Income and Means-Test Calculation, as the Amended Form B22A inappropriately included postpetition rather than prepetition tax withholding as an expense.
. Section 707(b)(1) provides, in relevant part: “After notice and a hearing, the court ... on a motion by ... any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debt- or’s consent, convert such a case to a case
. Section 707(b)(2)(A)(i) provides: "In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chаpter, the court shall presume abuse exists if the debtor’s current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of—
(I) 25 percent or the debtor's nonpriority unsecured claims in the case, or $6,575, whichever is greater; or
(II) $10,950.”
Put more simply:
If, after subtracting the allowable monthly expenses from the debtor’s [current monthly income], the amount of monthly disposable income, multiplied by 60, is greater than $10,950, then the debtor 'fails’ the Means Test. If the amount is less than $6,575, then the debtor 'passes’ the Means Test. If the amount is between $6,575 and $10,950, the debtor only fails the Means Test if the amount is greater than 25% of the debtor’s non-priority unsecured claims.
In re Ralston,
. Hawkins stated that "the allowance for housing and utilities should be the $1,500 thаt [the Stewarts] are actually paying for housing, plus a reasonable allowance for their actual utility costs." Objection Filed by Creditor ... Re: Motion to Settle and Compromise, docket no. 23. I infer from this statement that Hawkins estimated $300 in utility expenses, for a total allowance of $1,800 for both housing and utilities, which resulted in the $3,000 monthly disposable income she calculated.
. I note, however, that Hawkins’s argument as to whether the monthly mortgage payment is a reasonable and necessary expense may be relevant to determining the Motion to Dismiss under § 707(b)(3) in the totality of the circumstances, which I address below.
. Section 707(b)(2)(A)(ii)(V) provides:
In addition [to the expenses set forth under § 707(b)(2)(A)(ii)(I)], the debtor’s monthly expenses may include an allowance for housing and utilities, in excess of the allowance specified by the Local Standards for housing and utilities issued by the Internal Revenue Service, based on the actual expenses for home energy costs if the debtor provides documentation of such actual expenses and demonstrates that such actual expenses are reasonable and necessary, (emphasis added).
.The Local Standard for mortgage/rent expense is $1,187. The Stewarts’ monthly mortgage expense of $8,666.67 on their Original Form B22A, and $3,589 on their Amended Form B22A and Second Amended Form B22A exceed this amount. Based on the formula set forth under line 20B, "Local Stan
. Some courts in the majority believe that the issue of whether "scheduled as” should be given its ordinary, common meaning or a bankruptcy-specific meaning is a distinction without a difference, because, under either interpretation, the scheduling of a secured debt does not change the fact that the payments on the secured debt are contractually due.
See Lindstrom,
. Under § 109(e), only an individual with regular income and such individual's spouse that owe, as of the petition date, noncontin-gent, liquidated, unsecured debts that aggregate less than $336,900, may file a chapter 13 case. According to their schedules, the Stew-arts have $645 in unsecured priority debt, $72,000 in the unsecured portion of the secured mortgage creditor’s claim, and $369,960 in unsecured nonpriority debt for total unsecured debt of $442,605.
See Scovis v. Henrichsen (In re Scovis),
. Section 1123 provides, in relevant part:
(a) Notwithstanding any otherwise applicable nonbankruptcy law, a plan shall— (8) in a case in which the debtor is an individual, provide for the payment to creditors under the plan of all or such portion of earnings from personal services performed by the debtor after the cоmmencement of the case or other future income of the debtor as is necessary for the execution of the plan.
To be consistent with §§ 707 and 1322, § 1128(a)(8) was added to make it clear that an individual debtor in chapter 11 must use his or her future income to fund payments to creditors under a chapter 11 plan. 7 Collier on Bankruptcy ¶ 1123.01[8] (15th ed. rev. 2009).
.Section 1129(a) provides, in relevant part:
(15) In a case in which the debtor is an individual and in which the holder of an allowed unsecured claim objects to the confirmation of the plan—
(B) the value of the property to be distributed under the plan is not less than the projected disposable income of the debtor (as defined in section 1325(b)(2))to be received during the 5-year period beginning on the date that the first payment is due under the plan, or during the period for which the plan provides payments, whichever is longer.