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Lanning
Here is a nice case decided one week before Lanning in which the Bankruptcy Court determined that even using the "forward looking" approach used by the 10th Circuit in Lanning, affirmed by the SC in Hamilton v. Lanning, the bankruptcy court does not have discretion to count SSI benefits (or by implication other income excluded from teh definition of CMI) as part of PDI. However, court said that SSI benefits (or other excludable income) could be used to establish feasibility. In Re: MARY ELLEN BARTELINI, Case No. 09-61399. United States Bankruptcy Court, N.D. New York (June 2, 2010).
>
> My two cents from a newbie:
>
> The Lanning decision says that "a court taking the forward-looking approach 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 expenses."
>
> But although the court discussed pre-BAPCPA practice with respect to using Schedules I and J to calculate disposable monthly income, the court did not explicitly alter the BAPCPA definitions of CMI or DMI. So it seems to me that the exclusions from DMI (including Social Security benefits), and the expense allowance limitations used in calculating CMI and DMI, would still apply. I don't think the court intended to give bankruptcy courts discretion to: (i) include forms of income which were explicitly excluded by Congress from the definitions of CMI and DMI, or, (ii) take into account "actual expenses" in excess of the allowable limitations set forth in the definitions of CMI and DMI.
>
> My take is that you still use B22C to calculate DMI. Then, if there is "known or virtually certain information" which causes the result of the DMI calculation to be higher than "Projected DMI," the Debtor can propose (and bankruptcy court can confirm) a plan based upon "Projected DMI." It might be possible to use I and J to calculate "Projected DMI" in some cases. But it seems to me that if there is excludable income (such as SS benefits) on Schedule I, or unallowable expenses (such as rent higher than allowance) on Schedule J, then Debtor should calculate "Projected DMI" by preparing an alternate Form B22C which substitutes a "known or virtually certain" projection in place of a six month average for the affected line items.
>
> Alternatively, if there is "known and virtually certain information" which causes the result of the DMI calculation to be lower than "Projected DMI," then the Trustee or a creditor can object to a proposed plan which uses DMI and request the use of "Projected DMI" instead.
>
> --- In cdcbaa@yahoogroups.com, "James T. King" wrote:
> >
> > But it sounds like that stepping stone is actually ignored where there
> > are ANY change in future income or expenses. AND, if that is the case
> > do we even have the exclusion of Social Security from the "forward
> > looking" scrutiny of PDI?
> >
> >
> >
> > Of P L
> > Sent: Tuesday, June 08, 2010 8:56 AM
> > To: cdcbaa@yahoogroups.com
> > Subject: [cdcbaa] Lanning
> >
> >
> >
> >
> >
> > Aside from the court "taking liberties with the text in light of the
> > outcome" [Scalia dissent at page 13] by throwing out the statutory
> > definition of "Disposable Income" like some silly Miranda right, the
> > most disappointing part of the decision is footnote 2's reference to
> > Form B22C as the "means test"
> >
> >
> >
> > Act II, Scene I. Given 707(b)(3)'s totality of circumstances ability to
> > pay review, the logical next step is the melding of Chapter 7 & 13 into
> > one Means Test which is based upon a judicial determination of all
> > foreseeable income and expenses over the ACP, without any of the
> > protections Congress added to the definition of CMI and reductions of
> > CMI under 1322(b)(2), (b)(3) and 707(b)(2). This essentially means
> > there is no use for Forms B22A and B22C since Lanning suggests that the
> > "means test" (not distinguished from Ch7 and Ch13) is merely a stepping
> > stone on the path of determining a debtor's ability to pay actual
> > foreseeable dispoable income during a future 3 to 5 year period of
> > servitude to creditors.
> >
> >
> >
> > Peter M. Lively, JD/MBA
> > Law Office of Peter M. Lively * Personal Financial Law Center I
> > 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> > Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> > A-Bankruptcy-Attorney.com
> > Personal Financial Law Center II - Costa Mesa, CA
> >
> >
> >
> > THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
> > WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,
> > CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE
> > READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR
> > AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT,
> > YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING
> > OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
> > COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY
> > TELEPHONE. THANK YOU.
> >
>
The post was migrated from Yahoo.
My two cents from a newbie:
The Lanning decision says that "a court taking the forward-looking approach 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 expenses."
But although the court discussed pre-BAPCPA practice with respect to using Schedules I and J to calculate disposable monthly income, the court did not explicitly alter the BAPCPA definitions of CMI or DMI. So it seems to me that the exclusions from DMI (including Social Security benefits), and the expense allowance limitations used in calculating CMI and DMI, would still apply. I don't think the court intended to give bankruptcy courts discretion to: (i) include forms of income which were explicitly excluded by Congress from the definitions of CMI and DMI, or, (ii) take into account "actual expenses" in excess of the allowable limitations set forth in the definitions of CMI and DMI.
My take is that you still use B22C to calculate DMI. Then, if there is "known or virtually certain information" which causes the result of the DMI calculation to be higher than "Projected DMI," the Debtor can propose (and bankruptcy court can confirm) a plan based upon "Projected DMI." It might be possible to use I and J to calculate "Projected DMI" in some cases. But it seems to me that if there is excludable income (such as SS benefits) on Schedule I, or unallowable expenses (such as rent higher than allowance) on Schedule J, then Debtor should calculate "Projected DMI" by preparing an alternate Form B22C which substitutes a "known or virtually certain" projection in place of a six month average for the affected line items.
Alternatively, if there is "known and virtually certain information" which causes the result of the DMI calculation to be lower than "Projected DMI," then the Trustee or a creditor can object to a proposed plan which uses DMI and request the use of "Projected DMI" instead.
>
> But it sounds like that stepping stone is actually ignored where there
> are ANY change in future income or expenses. AND, if that is the case
> do we even have the exclusion of Social Security from the "forward
> looking" scrutiny of PDI?
>
>
>
> Of P L
> Sent: Tuesday, June 08, 2010 8:56 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Lanning
>
>
>
>
>
> Aside from the court "taking liberties with the text in light of the
> outcome" [Scalia dissent at page 13] by throwing out the statutory
> definition of "Disposable Income" like some silly Miranda right, the
> most disappointing part of the decision is footnote 2's reference to
> Form B22C as the "means test"
>
>
>
> Act II, Scene I. Given 707(b)(3)'s totality of circumstances ability to
> pay review, the logical next step is the melding of Chapter 7 & 13 into
> one Means Test which is based upon a judicial determination of all
> foreseeable income and expenses over the ACP, without any of the
> protections Congress added to the definition of CMI and reductions of
> CMI under 1322(b)(2), (b)(3) and 707(b)(2). This essentially means
> there is no use for Forms B22A and B22C since Lanning suggests that the
> "means test" (not distinguished from Ch7 and Ch13) is merely a stepping
> stone on the path of determining a debtor's ability to pay actual
> foreseeable dispoable income during a future 3 to 5 year period of
> servitude to creditors.
>
>
>
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy-Attorney.com
> Personal Financial Law Center II - Costa Mesa, CA
>
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
> WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,
> CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE
> READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR
> AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT,
> YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING
> OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
> COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY
> TELEPHONE. THANK YOU.
>
The post was migrated from Yahoo.
You start by following the directions for Congressionalchicken soup and ifyour don't like the taste, then youadd whatever you want from the debtor's spice rackto makesomething thatfits your judicialpalate.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tue, June 8, 2010 9:13:22 AM
Subject: RE: [cdcbaa] Lanning
But it sounds like that stepping stone is actually ignored where there are ANY change in future income or expenses. AND, if that is the case do we even have the exclusion of Social Security from the forward looking scrutiny of PDI?
From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P L
Sent: Tuesday, June 08, 2010 8:56 AM
To: cdcbaa@yahoogroups. com
Subject: [cdcbaa] Lanning
Aside from thecourt "taking liberties with the text in light of the outcome" [Scalia dissent at page 13] by throwing out the statutory definition of"Disposable Income"likesome silly Miranda right, thee to Form B22C as the "meanstest"
Act II, Scene I. Given707(b)(3)'s totality of circumstances ability to pay review,the logicalnext step isthe melding of Chapter 7 & 13 into one Means Test which is based upon a judicial determination ofall foreseeableincome and expenses over the ACP, without any of the protections Congress added to the definition of CMI and reductions of CMI under 1322(b)(2), (b)(3)and 707(b)(2).This essentially means there is no use forForms B22Aand B22C since Lanning suggests that the "means test" (not distinguished from Ch7 and Ch13) is merely a stepping stone on the path of determining a debtor's ability to pay actual foreseeable dispoable income during afuture3 to 5 year period of servitude to creditors.
Peter M. Lively, JD/MBA
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy- Attorney. com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
You start by following the directions for Congressional chicken soup and if your don't like the taste, then you add whatever you want from the debtor's spice rack to make something that fits your judicial palate. Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
From: James T. King <king@kingobk.com>To: cdcbaa@yahoogroups.comSent: Tue, June 8, 2010 9:13:22 AMSubject: RE: [cdcbaa] Lanning
But it sounds like that stepping stone is actually ignored where there are ANY change in future income or expenses. AND, if that is the case do we even have the exclusion of Social Security from the forward looking
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P LSent: Tuesday, June 08, 2010 8:56 AMTo: cdcbaa@yahoogroups. comSubject: [cdcbaa] Lanning
Aside from the court "taking liberties with the text in light of the outcome" [Scalia dissent at page 13] by throwing out the statutory definition of "Disposable Income" like some silly Miranda right, the most disappointing part of the decision is footnote 2's reference to Form B22C as the "means test"
Act II, Scene I. Given 707(b)(3)'s totality of circumstances ability to pay review, the logical next step is the melding of Chapter 7 & 13 into one Means Test which is based upon a judicial determination of all foreseeable income and expenses over the ACP, without any of the protections Congress added to the definition of CMI and reductions of CMI under 1322(b)(2), (b)(3) and 707(b)(2). This essentially means there is no use for Forms B22A and B22C since Lanning suggests that the "means test" (not distinguished from Ch7 and Ch13) is merely a stepping stone on the path of determining a debtor's ability to pay actual foreseeable dispoable income during a future 3 to 5 year period of servitude to creditors.
Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy- Attorney. comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
The post was migrated from Yahoo.
But it sounds like that stepping stone is actually ignored where there
are ANY change in future income or expenses. AND, if that is the case
do we even have the exclusion of Social Security from the "forward
looking" scrutiny of PDI?
The post was migrated from Yahoo.
Aside from thecourt "taking liberties with the text in light of the outcome" [Scalia dissent at page 13] by throwing out the statutory definition of"Disposable Income"likesome silly Miranda right, themost disappointing part of the decision is footnote2's reference to Form B22C as the "meanstest"
Act II, Scene I. Given707(b)(3)'s totality of circumstances ability to pay review,the logicalnext step isthe melding of Chapter 7 & 13 into one Means Test which is based upon a judicial determination ofall foreseeableincome and expenses over the ACP, without any of the protections Congress added to the definition of CMI and reductions of CMI under 1322(b)(2), (b)(3)and 707(b)(2).This essentially means there is no use forForms B22Aand B22C since Lanning suggests that the "means test" (not distinguished from Ch7 and Ch13) is merely a stepping stone on the path of determining a debtor's ability to pay actual foreseeable dispoable income during afuture3 to 5 year period of servitude to creditors.
Peter M. Lively, JD/MBA
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
Aside from the court "taking liberties with the text in light of the outcome" [Scalia dissent at page 13] by throwing out the statutory definition of "Disposable Income" like some silly Miranda right, the most disappointing part of the decision is footnote 2's reference to Form B22C as the "means test"
Act II, Scene I. Given 707(b)(3)'s totality of circumstances ability to pay review, the logical next step is the melding of Chapter 7 & 13 into one Means Test which is based upon a judicial determination of all foreseeable income and expenses over the ACP, without any of the protections Congress added to the definition of CMI and reductions of CMI under 1322(b)(2), (b)(3) and 707(b)(2). This essentially means there is no use for Forms B22A and B22C since Lanning suggests that the "means test" (not distinguished from Ch7 and Ch13) is merely a stepping stone on the path of determining a debtor's ability to pay actual foreseeable dispoable income during a future 3 to 5 year period of servitude to creditors.
Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
The post was migrated from Yahoo.