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Chapter 13 plan payment disposable income calculation
Kagenveama is far from nuetered, and certainly not self-nuetered, it is the stud that is keeping debtors with $0 or negative PDI from being in Chapter 13 more than 36 months (arguably less, but not worth explaining now).
Contractual note payments secured by the residence belong in the B22A & B22C reductions of CMI regardless of the ultimate intent to strip-off the lien, that is what the Code and the Form require.
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On part A, she is essentially correct in the end result and is taking the shortcut of ignoring that modification only comes after confirmation.
On part B, I deal with it by avoidingthis trustee attorney on these types of cases and sticking to cases in LA. You may need to litigate the issue before the bankruptcy judge and possible appeal a negative result.
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I think Peter Lively and others will expound on this more, but I think
Kagenveama neutered itself. It basically says somewhere in the opinion,
either implicitly or explicitly, that nothing in the opinion prevents a
Trustee or creditor from seeking to modify the plan for the reason you just
mentioned. The only thing Kagenveama really holds is regarding the length of
the plan term.
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I thought the Santa Barbara and Woodland Hills judges were taking the
position that the means test is the key to whether one files a chapter
13 or not, but that the plan payment was based on I & J. If that's the
case, the numbers on the SCMI are irrelevant.
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X-eGroups-Edited-By: easky1
I am really frustrated right now. I just had a couple Chapter 13 341
(a) meetings in Woodland Hills. Renee Sawyer takes the position that
although Form B22C applies in determining plan payment for
confirmation for an above median debtor, it is only for that instant
and that the Chapter 13 trustee can seek to modify the plan payment
immediately after confirmation to match I & J, regardless of whether
there have been any change in debtor's financial condition since the
petition was filed. Her position basically is that she does not
care what the last 6 months of income has been. If the debtor's
income one I is different than the 6 month average from line 11 in
B22C, that is a change in financial condition and grounds for
modification of the plan payment.
Furthermore, Renee takes the position that if a Lam motion is filed
by an above median debtor, the second trust deed payments cannot be
listed in the Means Test, even though they were still secured
obligations requiring payments at the time of filing. Renee
maintains that a case that was negative dmi on line 59 as a result of
listing the future payments on second trust deeds obligated to be
paid for the next 60 months at the time of filing, then becomes a
positive dmi on line 59 based upon the second trust deed payment
removal from line 47 such that it must be a five year plan and
Kagenavema cannot be used to impose a lesser term.
The trustee's position seems to completely neuter Kagenavema. How
are the rest of you dealing with these issues?
Mark Jessee
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I am really frustrated right now. I just had a couple Chapter 13 341
(a) meetings in Woodland Hills. Renee Sawyer takes the position that
although Form B22C applies in determining plan payment for
confirmation for an above median debtor, it is only for that instant
and that the Chapter 13 trustee can seek to modify the plan payment
immediately after confirmation to match I & J, regardless of whether
there have been any change in debtor's financial condition since the
petition was filed. Her position basically is that she does not
care what the last 6 months of income has been. If the debtor's
income one I is different than the 6 month average from line 11 in
B22C, that is a change in financial condition and grounds for
modification of the plan payment.
Furthermore, Renee takes the position that if a Lam motion is filed
by an above median debtor, the second trust deed payments cannot be
listed in the Means Test, even though they were still secured
obligations requiring payments at the time of filing. Renee
maintains that a case that was negative dmi on line 59 as a result of
listing the future payments on second trust deeds obligated to be
paid for the next 60 months at the time of filing, then becomes a
positive dmi on line 59 based upon the second trust deed payment
removal from line 47 such that it must be a five year plan and
Kagenavema cannot be used to impose a lesser term.
The trustee's position seems to completely neuter Kagenavema. How
are the rest of you dealing with these issues?
Mark Jessee
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