*1 entered in A Order will be causing separate event mediately after Williams, Bankruptcy Rule 9021. accordance 379 S.W.2d v. damage. Orr of the ex (Mo.App.1964). One rule is that ceptions general to the to calculate repair may be used
cost of com property can be
damages when former condition at restored to its
pletely diminution value.
a cost less than its City Housing Authority Co Tull v. PAK, Debtor. In re John lumbia, (Mo.App. 691 S.W.2d v. 1985); Bell Tel. Co. Southwestern Pak, Appellant, John Co., 393, Mfg. 359 S.W.2d Rawlings v. In order to measure (Mo.App.1962).
(cid:127) repair, there must damages by the cost Corporation; Ameri eCast Settlement is less repair that the cost of be evidence Bank; Express Martha can Centurion in value. Southwest than its diminution Trustee; Bronitsky, United States Bell, at 399. ern 359 S.W.2d Trustee, Appellees. BAP No. NC-07-1201-DCaK. case, 2006 NADA
In this the December Bankruptcy No. 05-49326. $18,475 and wholesale val- retail value was $15,625. submitted ue was The evidence Panel Bankruptcy Appellate United States by Plaintiff shows that the cost to at trial of the Ninth Circuit. former condition repair the Vehicle to its $5,400. Plaintiff also submitted on Oct. 2007. Argued would be and Submitted $8,250 in testimony that an additional re- Filed Nov. engine if required could be a new pairs to run. Howev- necessary for the Vehicle
er, re- Plaintiff did not establish necessary in fact and the
pair will damages for a willing grant is not
Court required. not be Plaintiff
repair attorneys’ fees damages
also submitted $3,698 and Debtor did costs $479.65. object to the reasonableness of suggest he the fees
fees. Nor did governing under the
were not recoverable
documents, state law or the applicable Accordingly, Court Code. damages Plaintiff in the amount
awards
$9,577.65.
III. CONCLUSION above, the reasons cited
For all the Plaintiff the debt owed to
Court finds non-dischargeable Troy
Debtor Jeffries 523(a)(6). to 11
pursuant U.S.C. *2 Moran, Cooper
Cathleen Moran Law Inc., View, CA, Group, Mountain for John Pak. Rosa, CA, Meyer, August H. Pak
Michael Santa Since has found work Bronitsky, engineer, Martha Trustee. his field as a software but aas through job shop,” “contract worker O’Donnell, John M. Law Offices John no health insurance other benefits. His O’Donnell, Sacramento, CA, M. for eCast $8,666.67 gross compensation month, per *3 Corp. Settlement $104,004.04 per year. a total of DUNN, 31, CARROLL,1 2005, Before: and On October Pak filed a volun- KLEIN, Bankruptcy Judges. tary chapter petition. original His (Sched- expenses
schedules of income and J) ules I and showed net take pay home OPINION $5,530.20 per month expenses and DUNN, Bankruptcy Judge. $3,718.00, leaving monthly a net income of $1,812.20. general Pak listed unsecured appeal, In this we address one of the $172,931.24 totaling claims in his Schedule perplexing most issues that arisen in F. chapter Bankruptcy 13 under the Abuse
Prevention and Consumer Protection Act (“Form Pak filed an Official Form 22A (“BAPCPA”) of 22A”), chapter on which 7 debtors calcu- — term monthly late “current income” under 1325(b)(1)(B).2 debtor, The John Pak 101(10A) monthly expenses and recog- (“Pak”), whose income” under 707(b)(2).3 nized Since the statutory definition was less than one 101(10A) requires that current third of his actual net income available to historically, income be calculated based on creditors, pay appeals bankruptcy average gross during income received dismissing court’s order chapter his period ending six-month with the month denying case after confirmation of Pak’s prior to the month which his bank- chapter amended plan. We AFFIRM. filed, ruptcy petition was the “current
monthly income” on Pak’s
22A
Form
($2,666.67
$32,000.04
monthly, and
annual-
I. FACTS
ly)
than
was less
one third of his actual
factual background
dispute.
The
is not in
bankruptcy filing,
income at the time of his
Pak
engineer.
is a software
He was laid
employed during
because Pak was not
four
employment April
off from his
2002 and
period.
of the six months of the relevant
employment
August
did not find new
until
parties
All
agree
Pak’s annualized
2005, approximately 39 months
later.
“current
income” was below the
During
period
that he was unem-
median
for a
California household
ployed, Pak
savings, unemploy-
lived on
person.
of one
ment benefits and distributions from his
2006,
14,
401K
He
April
also accumulated substan-
On
States
United
(“UST”)
tial unsecured debt.
Trustee
filed a motion to dismiss
Carroll,
17, 2005,
Bankruptcy Judge
appeal
1.
Peter H.
Hon.
arises was filed after October
California, sitting
for the Central District of
provisions.
the effective date of most BAPCPA
designation.
3.Form 22 was known as Form B22 in the
indicated,
“Code,”
2. Unless otherwise
all
preceding
interim
the effective date of the
chapter and section references are to the fed-
jurisdictions
Some
continue
official Forms.
Code,
§§
eral
11 U.S.C.
101—
to refer to the official Form as Form B22.
1532,
BAPCPA,
109-8,
as amended
Pub.L.
119 Stat.
which
case from
Dismiss”)
(“Motion
denying confirmation of the Amended
Pak’s
7 case
707(b)(3).
May-
court entered an
bankruptcy
as an abuse under
On
Plan.
18, 2006,
granted the
bankruptcy
court
the Amend-
denying
order
confirmation of
decision,
published
Dismiss in a
Motion to
ed Plan on December
2006.
(Bankr.N.D.Cal.
Pak,
In re
payments based on his net in- §§ pursuant to 28 1334 and U.S.C. come, as reflected on his Amended Sched- (b)(2)(L). jurisdic- We have J, payments I total ules his would § pursuant tion to 28 U.S.C. $35,629.20 over the life of a 36 month Express American Bank and Centurion III.ISSUE Corporation (collectively, eCast Settlement in bankruptcy Whether the court erred Trustee, Creditors”), “Objecting concluding that Pak’s Amended Plan was objected and the UST each to confirmation confirmable, committing all not as not Plan, arguing of the Amended “projected disposable pay Pak’s income” to Amended Plan failed to commit all of Pak’s creditors, required pursuant unsecured as payment income” to 1325(b)(1)(B). §to Pak of unsecured claims. countered requirements Plan met “the the Amended statutory in that more than his IV.STANDARD OF REVIEW disposable income for 36 months [was] statutory review con We issues plan.”
committed to the law, including struction and conclusions of giving parties opportunities interpretation provisions to of the Bank
After Code, hearing argu- ruptcy brief the issues and oral de novo. Ba Einstein/Noah (In W., L.P.), ment, gel its v. re bankruptcy Corp. court issued Smith BCE (9th Cir.2003); Men memorandum of decision on December 319 F.3d (Bankr. (In Mendez), dez v. 367 B.R. published Salven (9th 2007). N.D.Cal.2006), 109,113 sustaining objections to and BAP Cir. added.) (Emphasis
V. DISCUSSION thorny issues of appeal This raises argues Pak in effect that the statutory construction. Since the Trustee court applying erred not the term “dis- Objecting objected to and the Creditors posable as defined Plan, confirmation of Pak’s Amended 1325(b)(2)4 “plain consistent with its statutory battleground immediate view, meaning.” In Pak’s the addition of 1325(b)(1)(B), provides: which “projected” If the trustee or the holder of an allowed 1325(b)(1)(B) come” in mul- adds mere objects claim unsecured the confirma- tiplier, based on the number of months plan, tion of the then the court applicable within the commitment period unless, approve the effec- (in case, months), to determine the plan— tive date minimum amount that a pay debtor must his unsecured creditors (B) plan provides that all of the 1325(b)(1)(B) satisfy order to condi- projected disposable income to tion to confirmation. applicable be received in the commit- period ment beginning on the date that Statutory begins payment
the first
is due under the
*5
language
by
with a review of the
used
applied
payments
will be
to make
unsecured creditors
in
Congress
under the
the current version of the law.
1325(b)(2)
(A)
provides:
average monthly
4. Section
the
...
income from
(or
all sources that the debtor receives
in a
subsection,
purposes
For
of this
joint case the debtor and the debtor’s
"disposable income” means current month-
receive)
spouse
regard
without
to whether
(other
ly
by
income received
the debtor
income,
such income is taxable
derived dur-
support payments,
than child
care
foster
ing
period ending
the 6-month
on—
payments,
disability payments
or
for a de-
(i)
day
the last
of the calendar month
pendent
ap-
child made in accordance with
immediately preceding the date of the
plicable nonbankruptcy law
extent
commencement of the case if the debtor
reasonably necessary
expended
to be
files the schedule of current income re-
child)
reasonably
such
less amounts
neces-
521(a)(l)(B)(ii);
quired by section
or
sary
expended—
to be
(ii) the date on which current income is
(A)(i)
support
for the maintenance or
of the
by
purposes
determined
the court for
of
debtor,
dependent
a
debtor or
of the
or
this title if the debtor does not file the
support obligation,
for a domestic
required by
schedule of current income
payable
first becomes
after the date the
521(a)(l)(B)(ii);
section
and
filed;
petition is
and
(B)
any
paid by any entity
includes
amount
(ii)
(that
for charitable
contributions
(or
joint
than the
a
other
debtor
in
case
meet the definition of
contri-
"charitable
regu-
spouse),
debtor and the
debtor's
on
548(d)(3))
bution” under section
to a
expenses
lar basis for the household
qualified religious
entity
or charitable
or
(and
dependents
debtor or the debtor's
in a
(as
organization
defined in section
joint
spouse
if
case
debtor’s
not other-
548(d)(4)) in an
amount
to exceed 15
dependent),
wise a
but excludes benefits
percent
gross
of
income
of
debtor for
Act,
Security
pay-
received under the Social
year
in which the
are
contributions
to victims war
ments
of
crimes or crimes
made; and
against humanity on
of
account
their status
business,
(B)
engaged
if the debtor is
in
crimes,
payments
as victims of
and
such
payment
expenditures necessary
(as
victims of international
terrorism
de-
continuation, preservation,
opera-
18)
and
fined in section 2331 of title
or domestic
(as
tion of such business.
defined in section 2331
title
terrorism
18)
The term "current
income” itself is
on account of their status as victims of
101(10A)
defined in
as:
such terrorism.
in
amendments
to the
Code.
starting point
discerning congres-
BAPCPA,
statutory-
existing
“projected disposable
intent
is the
Before
sional
text,
Hughes
Co. v. Jacob-
see
derived from’ income not
income ‘was
Aircraft
son,
432, 438[, 119 S.Ct.
525 U.S.
maintaining or
reasonably necessary for
(1999), and not the
The term subsection, ‘disposable come” is not new with the BAPCPA income’ (B) provides: in the case of a debtor in a household Section individuals, 2, 3, highest or 4 medi- reasonably necessary ex- Amounts to be family applicable an State income of (2) pended paragraph be deter- shall family for a of the same number or fewer subparagraphs mined in accordance with individuals; or (A)and (B) 707(b)(2), of section if the debt- (C) in the case of a debtor in a household income, monthly or has current when mul- individuals, exceeding highest 4 medi- tiplied by greater than— family applicable income of State (A) individuals, in a in the case of debtor household family for a of 4 or fewer family person, the plus per of 1 median income of $525 month for each individual earner; applicable of 4. State for 1 excess
263
”),
...
means
but
the words
less the definition applies
“projected
to
appear only
place
income”
at one other
disposable
it has no meaning.
1325(b),
part
phrase “projected
of the
Kagenveama,
In re
2006 Bankr.LEXIS
disposable income.” This has led some
However,
*5.
the Kagenveama
courts to conclude that
‘disposable
“[i]f
court explicitly recognized
incongruous
‘projected
income’ is not linked to
disposa
results from its
“project-
just
ble income’ then it is
a floating defini
disposable
ed
income.”
apparent purpose.”
tion with no
In re
are,
Alexander,
(Bankr.
course,
practical
There
344 B.R.
difficul-
E.D.N.C.2006). See, e.g., Coop v.
ties with the
Freder
conclusion that
(In
Frederickson),
ickson
re
B.R.
disposable
necessarily
income” is
de-
(8th
2007);
Kolb,
Cir. BAP
In re
366 B.R.
by
fined
“current
income.” The
(Bankr.S.D.Ohio 2007);
Hanks,
In
most obvious
historical current
(Bankr.D.Utah 2007);
Care
taken
Congress modify
was
as shown on Debtor’s B22C form is a
the old definition of disposable income
purposes
Given the stated
$4.04.
replace
it with one
upon
BAPCPA,
based
it is both ironic and unfortu-
*7
“current
income.” This is
nate
this Debtor with resources
clear;
there can be no doubt
it.
about
pay
available to
unsecured creditors will
Section
states what the defini-
required
not be
to do so in this case.
“disposable
tion of
income” is “for the
Id. at *5-7.
purpose
subsection”;
of this
nowhere
view,
else,
In
1325(b)(1)(B),
holdings
other than in
our
consistent with the
Section
do the words
ap-
income”
most courts that have considered the
pear
issue,6
in the referenced subsection.
Congress’
Un-
retention of the term
See,
06-34841-H3-13,
e.g.,
McCarty,
(Bankr.
In re
“projected”
but
1325(b)(1)(B)
in one section of
statute
language
It
ambiguous.
does
§in
is
Jass,
another.”);
B.R.
In re
340
omits it in
of mindless
neatly into the role
not fit as
(Bankr.D.Utah 2006)(“the
411,
Court
415
“plain meaning” decisions
multiplier as the
every
import to
give meaning
must
following
suggest, for the
reasons.
would
statute”).
word in a
First,
“projected
“projected”
neither
nor
essentially
“projected”
The term
in the Bank-
income” is defined
disposable
calculate,
forward-looking.
It means “to
Yet,
the addition of
ruptcy Code.7
fu
(something
predict
income” in estimate or
“projected”
ture)
1325(b)(1)(B)
data or trends.”
present
it
based on
§
from “dis-
differentiates
Heritage
American
Col
income,”
(quoting
in Id.
as
defined
posable
(4th ed.2002)).
1325(b)(2).
It
Dictionary 1115
interpret
lege
§
it otherwise
To
See,
pre-BAPCPA.
See
e.g.,
interpreted
BFP was so
meaning.
to rob it of
tends
(In Anderson),
531,
v.
re
Corp., 511 U.S.
Anderson
Satterlee
v. Resolution Trust
(9th Cir.1994).8
355,
1757,
n.
Treat
537,
L.Ed.2d 556 F.3d
114 S.Ct.
future-oriented also is
intentionally
ing “projected”
as
(1994)(“Congress acts
3956,
(B)
*1-2,
property
to be distribut-
at *4-5
the value of
2006 Bankr.LEXIS
(Bankr.D.Alaska
2006);
Casey,
pro-
In re
ed under the
is not less than
Dec.
(as
(Bankr.E.D.Wash.2006);
jected disposable
In re
of the debtor
bankruptcy court faced
cluded,
Form B22C re-
13 debtors’
$3,625.63
always
starting
Form
will
income” of
B22C
flected
into wheth-
month,
point
inquiry
for the Court’s
proposed
debtors
per
but the
only
complying
er the debtor is
creditors
pay their unsecured
$790.00
require-
income”
in their
a month
1325(b)(1)(B).
The Court vrill
ment of
objected to confirmation of
trustee
resulting
that the number
from
presume
plan, arguing that because
debtors’
pay
Form B22C is
proposing
were not
debtors
disposable income” unless
debtor
$3,625.63
their unsecured
each month to
has been a substan-
creditors,
satisfy the
can show that there
plan did not
their
in circumstances such that
change
tial
test
1325(b)(1)(B).
contained in Form B22C
the numbers
argued
The debtors
*10
addition,
are not
projec-
commensurate with a fair
In
treating “projected disposa-
tion
budget
of the debtor’s
in the future.
ble income” as no more than a multiple of
“disposable income”
application
distorts
at
Id.
418.
plan
modification provisions
1323(a)
§§
1323 and 1329.11
presents
pre-
This
Under
opposite
case
BAPCPA, nothing prevented
face of
problem:
the same
The
debtor
calculation
from proposing a plan modification
of current
that
income on Pak’s Form 22A is
would increase
plan
or
materially
payments
decrease
by
reduced
unemploy
Pak’s
upon
based
changes in the debtor’s cir-
ment
four of the six months aver
prior
plan
cumstances
confirmation.
aged into the calculation. Because the
1323(a)
Section
by
was not amended
“disposable
term
income” is included with
However,
BAPCPA.
if “projected dispos-
in
“projected
income,”
disposable
able income” is treated as an unalterable
agree
we
with the
courts in
multiple
income,”
of “disposable
as defined
Alexander,
both Jass and
(citing Weast Cir.1989)). case, was skewed (4th disposable income Pak’s 240, 243 F.2d aver- unemployment, by four months Panel, Cir- following the Seventh This de- prepetition the six months’ aged into in v. cuit, position that Powers rejected income on his of his current termination Powers), (In 622 202 B.R. re Savage appropri- court The Form 22A. (9th 1996), that but concluded BAP Cir. very substantial ately considered the changed of the debtor’s “the circumstances financial employment and change in Pak’s then be considered can financial situation period of following the extended situation discretion.” Id. of the court’s in exercise determining whether in unemployment his Saloman, 31, 41 235 F.3d v. See Barbosa Plan and declin- the Amended to confirm Witkowski, (1st Cir.2000); Matter it. AFFIRM. ing to confirm We (7th Cir.1994); v. 739, 744^6 F.3d Ledford (In Brown), 193- 219 B.R. Brown KLEIN, concurring: Bankruptcy Judge, 1998). (6th Although the BAP Cir. affirm the dis- agree I that we should preclu- not ruled on Ninth Circuit has 13 ease that was chapter missal of chapter plans, of confirmed sive effects a debtor who could the refusal of based on in that least suggest in Anderson dicta that $35,000 propose plan to plan fund a to the the Ninth Circuit was inclined $10,822.20. Conceding pays more than Anderson, 21 view. See Fourth Circuit to impossible makes it that statute at 358. F.3d answer, I indisputably correct articulate (and irrationally), if Ironically theo- affirm on a different prefer would to to ultimately were position Fourth Circuit ry. “plain meaning” courts’ and the prevail, in- I debtor, trustee upheld, come” were income” ob- chapter “disposable The pre- be creditors would and unsecured a classic problem is jection-to-confirmation chapter 13 proposing cluded from 101(10A) §§ paradox. emphasis in 1329(a) in the pursuant modifications 1325(b) income as and on historical experiencing sub- absence confirming chapter threshold changes postconfirmation, stantial income the basic objection contradicts over an pre- bankruptcy court would while the 1306(a) §§ embodied premise changed fi- considering from such cluded 1322(a)(1) funded chapter plans are preconfirmation. nancial circumstances really income that exists by future interpreting “pro- conclude We appears only thing to the runs counter provision jected disposable unambiguous about the 2005 consum- to be 1325(b)(1)(B) no way in that makes to the Code: er amendments sense. should be that more debtors policy liquidations from diverted CONCLUSION VI. plans. repayment above, discussed For all of the reasons interpreting conclude that we A 1325(b)(1)(B), disposable income” of cut- majority’s solution income,” defined Neither by allowing present Knot 1325(b)(2), ting for de- the Gordian starting point trump fact to termining “projected rigid- evidence, come,” competing solution nor subject adjustment, based ly adhering to a statutory construction of more than in chapter the reality is that *12 “disposable ignores present income” that some unsecured creditors by are animated fact in a manner that would spite bar from or a they sense that greater will have chapter capable 13 some debtors of paying leverage if they can force a debtor out of (as at chapter least as much as in while 7 bankruptcy. here) permitting to pay others less than Finally, our legal tradition requires that they
what actually pay, could entirely is a solution must be plausible based on a former, satisfactory. however, has construction of the language of the statute. advantage of being more consistent policy with the promoting of payment II through expanded use of If there anything “plain” is about the I submit there a must be better solution “disposable portion statute, income” than cutting the Gordian Knot a to achieve that, context, it is it “plain.” is not practical result, common-sense instead of Thomas, Justice writing for a unanimous applying rigidly-tunneled vision of Court, Supreme given applica- us the 1325(b) supported by invocations of ble rule of statutory construction when “plain meaning” that serve as rhetorical may beyond one look the mere of words devices to bolster unsatisfactory argument the statute: plainness “The ambiguity or unpalatable sense, result. In a statutory of language is determined however, it is a false dilemma because the itself, reference to the language specif- “either-or” choice does not account for oth- ic used, context which language is analyses. er If I must choose between and the broader context of the statute as a two, then the Gordian Knot solution that Co., whole.” Robinson v. Shell Oil 519 applied by has been a substantial number 337, 341, U.S. 117 S.Ct. 136 L.Ed.2d throughout country courts fits bet- (1997) (9-0 decision). ter with the policy of increasing pay- ments Robinson is to creditors than a consistent with the rigid analysis observa- Scalia, tion of policy. offends the Justice also writing for Court, Supreme
unanimous that the inter- pretation the Bankruptcy Code “is a B holistic endeavor” and that provision “[a] Any solution that will be serviceable that ambiguous seem isolation is long term must meet several criteria. often clarified the remainder of the First, must, it as in the present facts of the statutory scheme—because the same ter- appeal, account for the debtor real whose minology used is elsewhere in a context income available life meaning its clear makes or because 1325(b) greater is than only permissible one meanings pro- Second, income.” it must also duces a substantive effect that is compati- account for the debtor whose income real ble with the rest of the law.” Sav. United 1325(b) is less than Ass’n v. Texas Timbers Inwood For- but pay who can enough to fund an other- Ltd., Assocs., 365, 371, est 484 U.S. wise confirmable While this second (1988) (9-0 S.Ct. L.Ed.2d deci- requirement may seem counterintuitive to sion). those who think that no trustee unse- 1325(b) cured creditor would raise a ob- This what implicates is known as the (§ 1325(b) jection applies only objection if doctrine of “whole statute” made) to a going pay recently that we have described in connec- historical between co interconnection Bankruptcy Code a different tion with Trade, and current income. v. Macke Int'l nundrum. Wechsler Inc.), Trade, (In Macke Int’l Inc. its monthly income” has most “Current 2007); (9th 2 A BAP Cir. 707(b) in connection role prominent Statutory J. Singer, Sutherland determining statutory formula Norman ed.1992). (5th § 46:5 debtor’s case under Constr. a consumer whether warranting dis- an “abuse” chapter 7 is statute,” “whole considers the one When chapter 11 or 13. *13 to or conversion missal more satisfacto- a toward resolution paths for prescribed mechanism is An elaborate ry emerge. me to to be de- monthly expenses computing monthly income. from current ducted Ill present in the particular Of interest reading on a close solution is based One 707(b) §in for mechanism context is the implicate provisions of the by statutory presumption rebutting the monthly income.” “current current demonstrating “adjustments of 1325(b) §of context The no rea- which there is monthly income for in isolation from be viewed cannot come” U.S.C. sonable alternative.” monthly income” of “current the definition 707(b)(2)(B) supplied). (emphasis § Such to 101(10A), adjustments § and the monthly income” “adjustments current expenses income” and “current “special circumstances” be based on must 707(b). of these § All three by provided The and reasonable.” “necessary and be were added to sections present purposes, for howev- point critical in 2005. integrated whole Code adjust- er, is a mechanism for is that there Moreover, requires consideration context to reflect monthly income” ing “current duty under debtor’s un- as to avoid circumstances so current 521(a)(l)(B)(ii) “a of cur- to file schedule § just results. expenditures,” current income and rent that heretofore perhaps It is natural requirements the basic discussion “special circumstances” 1325(a), pro- § and the under confirmation expense side been focused a modifying §
visions most of that is where equation because to account confirmation order after phrase “adjust- But occurs. action changes in income. monthly income” must current ments of do our to something we best
mean because A language all in a give try to effect is contemplat- I submit that what a statute. Code- “Current transitory not significant a the av- ed is that focuses on defined term wide support- The evidence change in income. for six calen- debtor’s income erage of the language of is in the ing my view bankruptcy. The defi- months before dar circumstances, 707(b)(2)(B)(i): “special § specifically cross-references nition duty in order to active 521(a)(l)(B)(ii) as ... a call duty to file a such § only look One need the Armed Forces.” and current of current income “schedule military pay at the official United States re- have been expenses,” which schedules that a call active recognize are the tables since 1984 and by quired reduction substantial duty precipitates in the figure I and J” “Schedules con- military reservist typical for a 1325(b) of this existence debate. The an intended sumer. is indicative cross-reference
Although the calculations of support. 1325(b)(2) current U.S.C. (repealed monthly income and monthly expenses 2005). re- 101(10A) quired 707(b) §by appear innovation in 2005 for in tableau format on Form B22A for chap- First, came in parts. two the definition of ter 7 cases and Form B22C for “disposable income” was by revised substi- cases, the forms do capture “special tuting “current monthly place income” in adjustments circumstances” to income. of “income which is received the debt- Since all the requirements of various ver- or.” The friction generated intro- (known sions of Form as B22 in the duction of this disconnect present between interim preceding the effective date of the and past ignited present debate that Forms) official imposed are directly or in- seems to be boiling down to disagree- directly by statute, the statute controls ment about whether the word “projected”
whenever Form diverges from the stat- adjective is an applied to a term of art Indeed, ute. the Forms 22 resulted from income”) (“disposable *14 or instead whether 707(b)(2)(C) § the mandate in that a state- “projected” is part of an integrated term ment of “current monthly income” and the (“projected income”) with a calculations regarding the presumption of meaning different than in- abuse presented in conjunction with the come.” schedules of current income and current expenses required by § 521. Since the The second facet of the 2005 revision of statute “adjustments authorizes of current 1325(b)(2) § the was addition of the re- monthly the of statement “cur- quirement 1325(b)(3) in § that allowable rent monthly income” on a that form does expenses 1325(b)(2) § under for over-medi- not attempt capture adjustments such an income debtors be “determined in ac- does not mean that there cannot be “ad- (A) cordance (B) with subparagraphs
justments current monthly income” to 707(b)(2).” section course, Of reflect reality when “special circum- 707(b)(2)(B) § precisely is provision stances” exist. that “adjustments authorizes of current “Current monthly income” and the monthly income” based present facts. 707(b) § abuse calculations spill over to words, In other it is at plausible least a the chapter 13 plan confirmation provi- (I do pretend it per- is § sions under plan Since a fect) that “current income” 1325(a) that § satisfies the basic plan con- 1325(b) § used in adjusted can be under firmation standards not, nevertheless may 707(b)(2)(B) mechanism provided by § 1325(b), § virtue of be confirmed over to recognize substantial and non-transitory objection of the chapter 13 trustee or the changes in income. holder of an allowed unsecured claim un- objection 1325(b)(3) less It no § either the is objecting that ap- is being creditor paid in full plies only all for or over-median income debtors. disposable income” The language is certainly committed to is mandatory plan for requisite (“Amounts period. 11 over-median income U.S.C. debtors 1325(b). § 1325(b) Also since reasonably § necessary to be expended un- (2) contained a definition of der paragraph in- shall be determined come,” but until ...”), 2005 that definition fo- but a presumably court would have cused on (i.e. “income which is received determined”) discretion “may be debtor and which is not reasonably apply neces- analysis similar to other debtors. sary expended” to be for maintenance and The 1325(b)(3) more § accurate view of B in- mandatory for over-median it is
that
for under-medi-
debtors,
optional
but
construction
for the
support
come
Further
1329(a),
§
which
income debtors.
is found
above
outlined
plan
a
after
modification
provides
objection
of an
more
perhaps
It is
confirmation.
707(b)(2)(B) into
§of
incorporation
confirmation
between
any time
At
that refer
in terms
1325(b)(3) is done
§
a
payments
completion
equation.
side of
expense
only to the
trustee,
an unse-
debtor,
or
plan,
Congress
if
force
have some
That would
modifi-
may request
creditor
cured
707(b)(2)(A), which
only
imported
had
that,
possibilities,
among other
cation
It loses force
only
expenses.
with
deals
or
or extends
payments
creases
reduces
incorporation
looks at
when one
making payments.
the time
reduces
exclusively
707(b)(2)(B),
deals
which
1329(a)(1).
modifications
Such
U.S.C.
of abuse
rebutting
presumption
income.
changes in
based on
typically are
(that
only
after “current
arise
can
meet
must
a modification
While
707(b)(2)(A) ex-
netted with
1325(a),
§of
requirements
confirmation
of abuse
presumption
penses). Since
(“the
by §
incorporated
which
707(b)(2)(B) has
by §
is addressed
1325(a)
this title
of section
requirements
13, the
nothing to do with
literally
under subsection
any
modification
apply
707(b)(2)(B)into
§of
incorporation
specific
1325(b)
does
(a)”),
significant
it is
*15
provisions
mean that the
must
§
Suna
§ 1329 modifications.
apply to
not
“spe-
on
“adjustments” based
making
for
Sunahara),
(In
hara v. Burchard
being im-
is what
circumstances”
cial
2005).
(9th
BAP
Cir.
781-82
presumption
irrelevant
the
ported without
statute
sum,
the
the construction
In
Congress
provisions.
rebuttal
of abuse
adjust “current
ability
the
to
discerns
that
by specifying
something
meant
must have
circum-
“special
on
based
monthly income”
else,
707(b)(2)(B);
“adjust-
besides
what
§
the rele-
reading of
plausible
ais
stances”
It
valve,
it have been?
could
safety
ment”
Bankruptcy Code
the
provisions of
vant
only snippets
how
imagine
to
is difficult
down-
upward and
for both
accounts
and
adjustments
special circumstances
the
monthly
“current
adjustments to
ward
analysis
If
were
this
applicable.
would be
come.”
presented
the problem
then
applied,
to be
The debt-
be solved.
would
by
appeal
this
IY
non-transitory
and
a
has had substantial
we
upon which
alternative basis
An
a
that necessitates
in income
increase
the
on
focuses
appeal
affirm
could
707(b)(2)(B) “adjustment
of current
specified
requirements
confirmation
basic
“special circum-
on
income” based
monthly
1325(a).
§by
substantially higher
to an amount
stances”
ar-
the debtor’s
face value
Accepting at
to
$2,666.67
which he relied
upon
than the
to
$10,822.20
proposes
he
that
gument
the
Hence,
the
$10,822.20 plan.
a
propose
must do
that he
is all
plan
into the
pay
1325(b)
ob-
correctly
the
sustained
court
1325(b),
plan nevertheless
the
correctly dis-
and
to confirmation
jection
requirements
meet
confirmation
must
all
not
the
chose
debtor
the case when
missed
1325(a).
§of
into account
that
plan
took
file
another
actu-
the debtor
apparent that
it is
of current
“adjustments
Since
the appropriate
$35,000 into
about
pay
could afford
ally
income.”
plan
applicable
irrelevant,
a
during the
commitment was intended to be
it follows
period,
question
that such information
be
the
becomes whether the
considered
1325(a)
in
“good
analysis
the
faith”
plan
re-
“proposed
good
has been
faith” as
1325(a)(3).
quired
plan
confirmation.
required by §
Accordingly,
the
court’s re-
Sunahara,
As
explained
we
confirm
plan
fusal to
that
pay
would
1325(a)(3)
analysis, among
things,
other
less then one-third of what the schedules
“necessarily
of a
requires
assessment
(Schedules
of current income and expenses
debtor’s overall financial condition includ-
J)
I
suggest
and
pay, may
the debtor could
limitation,
ing, without
the debtor’s cur-
be affirmed
that the plan
basis
was
income,
disposable
rent
likelihood
not confirmable
the plan propo-
because
signifi-
income will
preponderance
nent did
a
of evi-
cantly
increase due
increased income or
dence establish that
plan
proposed
was
expenses
remaining
decreased
over the
1325(a)(3).
by §
faith”
“good
required
Sunahara,
term.”
In significant it is that in outset, Knot. Gordian As noted Congress 2005 amendments restated however, if I had to choose between the the requirement sched- debtors file a majority’s approach alternative ule of expen- “current income and current that “current monthly income” creates a ditures” in under all chapters. cases straightjaeket in which there is no flexibili- 521(a)(l)(B)(ii). U.S.C. provision ty dealing with the actual facts of a that requires case, “cur- reporting particular agree additional I would with the rent body go substantial with connection cases cut- knot. ting the schedule of current income and current expenses appears only in 7. 11 Accordingly, I concur. 707(b)(2)(C). U.S.C. Congress required
Since would not have
reporting of regarding current information if expenses such information