.jpg)
After Lanning, the same problems remain using PDI in=
At the CEB this last weekend in Riverside, the Judges stated that if there is a
lien strip involved in a case where the Chapter 13 Debtor qualifies on the means
test for a 36 month plan, they court will side with the Trustee that it should
be a 60 month plan, otherwise, in their opinion, it is basically a Chapter 7
with a lien strip.
Law Office of Catherine Christiansen
1077 E Pacific Coast Hwy #210
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Tel: (562) 361-8721
Fax: (562) 490-8572
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________________________________
To: cdcbaa@yahoogroups.com
Sent: Tue, October 12, 2010 12:09:10 PM
Subject: Re: [cdcbaa] Re: After Lanning, the same problems remain using PDI in
1325(b)(1).
Nancy:
I have almost the identical issue in Riverside. Debtor is a w-2 employee. Non-debtor spouse receives only social security. The ACP is 36 months, but, if
you use schedule I with the social security income, its a 60 month plan
according to the trustee in Riverside. Plan was confirmed back in July. There
is now a little bit of arrears and I want to modify the plan to accomodate that
and have the plan reduce to 48 months and pay the same percentage the plan would
have paid in 36 months at the higher amount at which it was confirmed. I
anticipate an objection and want to discuss ahead of time because I may want to
participate in that appeal. Please contact me off list.
Thank you,
Steve Burton
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, October 11, 2010 3:45:10 PM
Subject: RE: [cdcbaa] Re: After Lanning, the same problems remain using PDI in
1325(b)(1).
Just as a note of interest:
The jury is still out as to whether Lanning overrules Kagenveama on the
Applicable Commitment Period (ACP). I am not sure how Liz Rojas is handling this
issue but Rod Danielsons office and Kathy Dockerys office are fighting the ACP
as decided in Kagenveama. And I know that is now what your thread was addressing
directly but just as a heads up to the group our office has taken this issue
on with the help of Tara Twomey of NACBA (6:10-bk-29956) in Riverside . Thetrustee is arguing that Lanning and Tennyson have effectively overruled theholding in Kagenveama as it relates to the applicable commitment period, and we
are arguing that Lanning did not discuss applicable commitment period.
Therefore, Kagenveama as it relates to ACP has not been overruled.
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
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________________________________
From:cdcbaa@yahoogroups.com [mailto: cdcbaa@yahoogroups.com ] On Behalf Of P L
Sent: Monday, October 11, 2010 12:48 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Re: After Lanning, the same problems remain using PDI in
1325(b)(1).
Mark,
The problem is that B22C calculates a payment to general unsecured creditors
not a Plan payment. The Ch13 T has it wrong. Lanning only instructs to adjust
the B22C PDI with foreseeable changes in Income and Expenses, this may impact
the PDI number being more or less than $0 and therefore impact the plan length
pursuant to Kagenveama. As a practical matter only (not a confirmation
requirement), the plan payment will be I-J, after a plan length is determine by
B22C.
Peter
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.
________________________________
From:Mark Jessee
To: cdcbaa@yahoogroups.com
Sent: Sat, October 9, 2010 3:46:36 PM
Subject: [cdcbaa] Re: After Lanning, the same problems remain using PDI in1325(b)(1).
I did not fully grasp this string the first time I read it. Now after hours of
research I understand the issue of section 1325(1)(B)'s incongruent interplay
with sections 1325(b)(2) and 1325(b)(3). However, I still struggle with
accepting the (SV) Chapter 13 trustee argument that lines 48, 49, and 50 should
always be left blank on form B22C for an above median debtor in determining the
disposable monthly income. I had another above median case with the same trustee
this past week where form B22C was negative even without the expenses on lines
48 through 50. After initially balking at the expenses on lines 48-50 the
trustee dropped her argument that the plan had to be 60 months instead of 36
when I argued that dmi was still negative regardless of those lines and that
based upon Kagenveama the plan did not need to be 60 months. Plan was confirmed
at schedule I minus J for 36 months.
In my review of case law I am not finding anything that specifically addresses
this issue. In Re Martinez 418 B.R. 347 (9th Cir BAP) 2009 holds that entirely
undersecured trust deeds that are lien stripped cannot be claimed, because they
are a phantom expenses not actually an expense necessary for the support of the
debtor or his dependants. This was based upon the Ninth Circuit's Ransom, 577
F.3d 1026 decision holding that in order to claim a vehicle ownership expense on
B22C, there had to actually be one. The U.S. Supreme Court in Lanning, does not
really address this issue, nor in my view does it completely overturn
Kagenveama. Kagenveama's mechanical approach is still where we start, but in
unusual circumstances can adjust projected disposable income for one time
circumstances like Lanning's lump sum severance payment. The BAP in Martinez
points out that Kagenveama did not really delve into what were legitimate
expenses necessary for support although in reviewing Kagenveama's form B22C,
clearly lines 48-50 were necessary to for the resultant dmi calculation to be
negative.
I understand that necessary expenses for secured arrears listed on line 48, back
due priority taxes on line 49 and trustee fees on line 50 are all paid through
the plan and the debtor cannot count them twice in determining the amount of the
plan payment. To me it seems it would not be good faith for a debtor to propose
such a plan. However, I do not see how 1328(b)(3) requires them to be backed out
on form B22C to determine pdi such that it is a 60 month plan instead of 36months. Section 1325(b)(3) holds that determining dmi for an above median debtor
is based upon Section 707(b)(2)(A) & (B) plus section 1325(b)(2)(A)(ii). Section
707(b)(2)A(ii)(III) allows for administrative expenses. Section
707(b)(2)A(iii)(II) clearly incorporates necessary secured creditor payments for
home and car arrears. Section 707(b)(2)A(iv) clearly includes payments onpriority claims. Under the plain language of the statute these expenses are part
of determining dmi. There is nothing in the statute that says if these expenses
exist they must be backed out for determining dmi under Section 1325(b)(3).Unlike claiming car ownership expenses or mortgage payments on lien stripped
second trust deeds that do not exist, these are actual expenses that exist and
must be paid by the debtors. Just because these are paid through the plan
instead of directly by the debtor it should not change the analysis under
Section 1325(b)(3). If it is a negative number, Kagenveama's analysis that it
does not need to be a 60 month plan should apply. Following the plain language
of 1325(b)(3) does not seem to lead to an absurd result.
Can anyone direct me to case law authority which address these arguments?
Mark Jessee
>
> AMI Above Median Income
>
> PDI Projected Disposable Income
>
> BMI Below Median Income
>
> PDI Projected Disposable Income
>
> Thanks for asking. I am sure a lot did not know or figure it out.
>
>
>
>robert90701@...
> Sent: Tuesday, July 13, 2010 12:48 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
>
>
> Please, what is AMI PDI and BMI PDI?
>
>
>
> In a message dated 7/13/2010 8:58:18 A.M. Pacific Daylight Time,
>petermlively2000@... writes:
>
>
>
> Lanning adjustment of AMI PDI doesn't solve the problem that AMI PDI is a>measure of only general unsecured creditor value and BMI PDI is a measure of
>Plan Base. The only way to make 1325(b)(1)(B) function is a non-aburd way is to
>treat PDI as a Plan Base measure for both AMI & BMI. Otherwise, unsecured>creditors must be fully paid before any other plan use for BMI debtors.
>
>
>
> 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.
>
>
>
>
>
>
>
> ________________________________
>
>
> To: cdcbaa@yahoogroups.com
> Sent: Tue, July 13, 2010 8:12:05 AM
> Subject: RE: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> But didnt Lanning say that in the AMI cases you only abandon the B22 if
>there are unusual circumstances looking forward? Not USUAL!
>
>
>
>
>
Of P
>L
> Sent: Tuesday, July 13, 2010 8:01 AM
> To: cdcbaa@yahoogroups. com
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> My understanding is that the Chapter 13 Trustees and judges are using PDI as a
>measure of ability to pay or a plan payment, not a measure of what goes to the
>unsecured creditors. Above-median- income debtors (arguably Chapter 13 only)
>start with Form B22C Disposable Income, but abandon that number and use Schedule
>I - J.
>
>
> 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.
>
>
>
>
>
>
>
> ________________________________
>
>
> To: cdcbaa@yahoogroups. com
> Sent: Mon, July 12, 2010 4:57:50 PM
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> This stuff is really hard.
>
>
>
> So in my above-median income debtor, I still need to use the PDI on Form 22C as
>the minimum that the unsecureds will get, and my debtor will have to pay above
>and beyond that in order to pay down mortgage arrears. In other words, we are
>still filling up the champagne glasses from the bottom up, or no?
>
>
>
> Holly Roark
>
> CDCA
>
> holly@roarklawoffic es.com
>
> On Mon, Jul 12, 2010 at 12:35 PM, P L > wrote:
>
> PDI under 1325(b)(2) used in Chapter 11 and for below-median- income Chapter 13
>debtor follows the preBAPCPA concept of calculating a plan payment; defining
>Disposable Income as reducing income by household/living expenses only.
>1325(b)(2) does not reduce CMI by administrative, secured arrears and priority
>unsecured claims (other typical plan payment recipients). This "Disposable>Income" is a measure of what plan payment a debtor can afford.
>
>
>
>
> PDI under the Chapter 7 Means Test and under 1325(b)(3) with reference to
>707(b)(2) defines Disposable Income as reducing CMI by household/living expenses
>(albeit standardized) and also by secured arrears and priority unsecured claims.
>This "Disposable Income" is a measure of what [general] unsecured creditors
>should receive.
>
>
>
>
> Unfortunately, defining Disposable Income in two entirely different ways and
>requiring its use in one 1325(b)(1)(B) formula doesn't work.
>
>
>
>
> BAPCPA changed 1325(b)(1)(B) by inserting "to unsecured creditors" between
>"will be applied to make payment" and "under the plan" with the obvious
>intention that [general] unsecured creditors receive the PDI; Disposable Income
>being calculated under 1325(b)(3) and 707(b)(2).
>
>
>
>
> BAPCPA neglected to change the definition of Disposable Income calculated under
>1325(b)(2) to include reductions of CMI by administrative expenses, secured
>arrears and priority unsecured claims. The absurd result of using this PDI in
>1325(b)(1)(B) being that below-median- income debtors must pay all that they can
>afford to [general] unsecured creditors before any PDI can be used for other
>plan purposes.
>
>
>
>
> Alternatively, ignoring the addition of "to unsecured creditors" between "will
>be applied to make payment" and "under the plan" and interpreting PDI as a>measure of what a debtor can afford to pay makes 1325(b)(3) superflous.
>
>
>
>
> Lanning's instructions to adjust PDI by foreseeable changes in income and>expenses does not resolve the problem that the statute defines Disposable Income
>in two incompatible ways for use in the same test.
>
>
>
>
> Kagenveama (and the dissent in Lanning) got it right when focusing on
>1325(b)(1)(B) using 1325(b)(3) as a calculation of what [general] unsecured
>creditors should get, if anything. Kagenveama is still applicable post Lanning,
>if 1325(b)(1)(B) PDI goes to only [general] unsecured creditors.
>
>
>
>
> The courts using PDI under 1325(b)(1)(B) with Disposable Income being
>calculated under 1325(b)(2) as a measure of what total monthly amount debtor can
>afford to pay also got it right. However, when applying this approach and using
>Disposable Income calculated under 1325(b)(3), these courts must ignore that
>BAPCPA's added the phrase "to unsecured creditors" to 1325(b)(1)(B) and must
>also adjust Disposable Income from a calculation of what [general] unsecured
>creditors should receive, to become a measure of ability to pay; this usually
>means ignoring Form B22C's Disposable Income and using Schedule I - J in its
>place.
>
>
>
>
> 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.
>
>
>
>
>
>
>
> --
> Holly Roark
> holly@roarklawoffic es.com
> www.roarklawoffices .com
> Central District of California
> Consumer Bankruptcy Attorney
>
At the CEB this last weekend in Riverside, the Judges stated that if there is a lien strip involved in a case where the Chapter 13 Debtor qualifies on the means test for a 36 month plan, they court will side with the Trustee that it should be a 60 month plan, otherwise, in their opinion, it is basically a Chapter 7 with a lien strip.
The post was migrated from Yahoo.
Mark,
to general unsecured creditors
not a Plan payment. The Ch13 T has it wrong. Lanning only instructs to adjust
the B22C PDI with foreseeable changes in Income and Expenses, this may impact
the PDI number being more or less than $0 and therefore impact the plan length
pursuant to Kagenveama. As a practical matter only (not a confirmation
requirement), the plan payment will be I-J, after a plan length is determine by
B22C.
Peter
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: Sat, October 9, 2010 3:46:36 PM
Subject: [cdcbaa] Re: After Lanning, the same problems remain using PDI in1325(b)(1).
I did not fully grasp this string the first time I read it. Now after hours of
research I understand the issue of section 1325(1)(B)'s incongruent interplay
with sections 1325(b)(2) and 1325(b)(3). However, I still struggle with
accepting the (SV) Chapter 13 trustee argument that lines 48, 49, and 50 should
always be left blank on form B22C for an above median debtor in determining the
disposable monthly income. I had another above median case with the same trustee
this past week where form B22C was negative even without the expenses on lines
48 through 50. After initially balking at the expenses on lines 48-50 the
trustee dropped her argument that the plan had to be 60 months instead of 36
when I argued that dmi was still negative regardless of those lines and that
based upon Kagenveama the plan did not need to be 60 months. Plan was confirmed
at schedule I minus J for 36 months.
In my review of case law I am not finding anything that specifically addresses
this issue. In Re Martinez 418 B.R. 347 (9th Cir BAP) 2009 holds that entirely
undersecured trust deeds that are lien stripped cannot be claimed, because they
are a phantom expenses not actually an expense necessary for the support of the
debtor or his dependants. This was based upon the Ninth Circuit's Ransom, 577
F.3d 1026 decision holding that in order to claim a vehicle ownership expense on
B22C, there had to actually be one. The U.S. Supreme Court in Lanning, does not
really address this issue, nor in my view does it completely overturn
Kagenveama. Kagenveama's mechanical approach is still where we start, but in
unusual circumstances can adjust projected disposable income for one time
circumstances like Lanning's lump sum severance payment. The BAP in Martinez
points out that Kagenveama did not really delve into what were legitimate
expenses necessary for support although in reviewing Kagenveama's form B22C,
clearly lines 48-50 were necessary to for the resultant dmi calculation to be
negative.
I understand that necessary expenses for secured arrears listed on line 48, back
due priority taxes on line 49 and trustee fees on line 50 are all paid through
the plan and the debtor cannot count them twice in determining the amount of the
plan payment. To me it seems it would not be good faith for a debtor to propose
such a plan. However, I do not see how 1328(b)(3) requires them to be backed out
on form B22C to determine pdi such that it is a 60 month plan instead of 36months. Section 1325(b)(3) holds that determining dmi for an above median debtor
is based upon Section 707(b)(2)(A) & (B) plus section 1325(b)(2)(A)(ii). Section
707(b)(2)A(ii)(III) allows for administrative expenses. Section
707(b)(2)A(iii)(II) clearly incorporates necessary secured creditor payments for
home and car arrears. Section 707(b)(2)A(iv) clearly includes payments on
priority claims. Under the plain language of the statute these expenses are part
of determining dmi. There is nothing in the statute that says if these expenses
exist they must be backed out for determining dmi under Section 1325(b)(3).Unlike claiming car ownership expenses or mortgage payments on lien stripped
second trust deeds that do not exist, these are actual expenses that exist and
must be paid by the debtors. Just because these are paid through the plan
instead of directly by the debtor it should not change the analysis under
Section 1325(b)(3). If it is a negative number, Kagenveama's analysis that it
does not need to be a 60 month plan should apply. Following the plain language
of 1325(b)(3) does not seem to lead to an absurd result.
Can anyone direct me to case law authority which address these arguments?
Mark Jessee
>
> AMI Above Median Income
>
> PDI Projected Disposable Income
>
> BMI Below Median Income
>
> PDI Projected Disposable Income
>
> Thanks for asking. I am sure a lot did not know or figure it out.
>
>
>
>robert90701@...
> Sent: Tuesday, July 13, 2010 12:48 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
>
>
> Please, what is AMI PDI and BMI PDI?
>
>
>
> In a message dated 7/13/2010 8:58:18 A.M. Pacific Daylight Time,
>petermlively2000@... writes:
>
>
>
> Lanning adjustment of AMI PDI doesn't solve the problem that AMI PDI is a>measure of only general unsecured creditor value and BMI PDI is a measure of
>Plan Base. The only way to make 1325(b)(1)(B) function is a non-aburd way is to
>treat PDI as a Plan Base measure for both AMI & BMI. Otherwise, unsecured>creditors must be fully paid before any other plan use for BMI debtors.
>
>
>
> 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.
>
>
>
>
>
>
>
> ________________________________
>
>
> To: cdcbaa@yahoogroups.com
> Sent: Tue, July 13, 2010 8:12:05 AM
> Subject: RE: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> But didnt Lanning say that in the AMI cases you only abandon the B22 if
>there are unusual circumstances looking forward? Not USUAL!
>
>
>
>
>
Of P
>L
> Sent: Tuesday, July 13, 2010 8:01 AM
> To: cdcbaa@yahoogroups. com
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> My understanding is that the Chapter 13 Trustees and judges are using PDI as a
>measure of ability to pay or a plan payment, not a measure of what goes to the
>unsecured creditors. Above-median- income debtors (arguably Chapter 13 only)
>start with Form B22C Disposable Income, but abandon that number and use Schedule
>I - J.
>
>
> 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.
>
>
>
>
>
>
>
> ________________________________
>
>
> To: cdcbaa@yahoogroups. com
> Sent: Mon, July 12, 2010 4:57:50 PM
> Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
>1325(b)(1).
>
>
>
> This stuff is really hard.
>
>
>
> So in my above-median income debtor, I still need to use the PDI on Form 22C as
>the minimum that the unsecureds will get, and my debtor will have to pay above
>and beyond that in order to pay down mortgage arrears. In other words, we are
>still filling up the champagne glasses from the bottom up, or no?
>
>
>
> Holly Roark
>
> CDCA
>
> holly@roarklawoffic es.com
>
> On Mon, Jul 12, 2010 at 12:35 PM, P L > wrote:
>
> PDI under 1325(b)(2) used in Chapter 11 and for below-median- income Chapter 13
>debtor follows the preBAPCPA concept of calculating a plan payment; defining
>Disposable Income as reducing income by household/living expenses only.
>1325(b)(2) does not reduce CMI by administrative, secured arrears and priority
>unsecured claims (other typical plan payment recipients). This "Disposable>Income" is a measure of what plan payment a debtor can afford.
>
>
>
>
> PDI under the Chapter 7 Means Test and under 1325(b)(3) with reference to>707(b)(2) defines Disposable Income as reducing CMI by household/living expenses
>(albeit standardized) and also by secured arrears and priority unsecured claims.
>This "Disposable Income" is a measure of what [general] unsecured creditors
>should receive.
>
>
>
>
> Unfortunately, defining Disposable Income in two entirely different ways and
>requiring its use in one 1325(b)(1)(B) formula doesn't work.
>
>
>
>
> BAPCPA changed 1325(b)(1)(B) by inserting "to unsecured creditors" between
>"will be applied to make payment" and "under the plan" with the obvious
>intention that [general] unsecured creditors receive the PDI; Disposable Income
>being calculated under 1325(b)(3) and 707(b)(2).
>
>
>
>
> BAPCPA neglected to change the definition of Disposable Income calculated under
>1325(b)(2) to include reductions of CMI by administrative expenses, secured
>arrears and priority unsecured claims. The absurd result of using this PDI in
>1325(b)(1)(B) being that below-median- income debtors must pay all that they can
>afford to [general] unsecured creditors before any PDI can be used for other
>plan purposes.
>
>
>
>
> Alternatively, ignoring the addition of "to unsecured creditors" between "will
>be applied to make payment" and "under the plan" and interpreting PDI as a>measure of what a debtor can afford to pay makes 1325(b)(3) superflous.
>
>
>
>
> Lanning's instructions to adjust PDI by foreseeable changes in income and>expenses does not resolve the problem that the statute defines Disposable Income
>in two incompatible ways for use in the same test.
>
>
>
>
> Kagenveama (and the dissent in Lanning) got it right when focusing on
>1325(b)(1)(B) using 1325(b)(3) as a calculation of what [general] unsecured
>creditors should get, if anything. Kagenveama is still applicable post Lanning,
>if 1325(b)(1)(B) PDI goes to only [general] unsecured creditors.
>
>
>
>
> The courts using PDI under 1325(b)(1)(B) with Disposable Income being
>calculated under 1325(b)(2) as a measure of what total monthly amount debtor can
>afford to pay also got it right. However, when applying this approach and using
>Disposable Income calculated under 1325(b)(3), these courts must ignore that
>BAPCPA's added the phrase "to unsecured creditors" to 1325(b)(1)(B) and must
>also adjust Disposable Income from a calculation of what [general] unsecured
>creditors should receive, to become a measure of ability to pay; this usually
>means ignoring Form B22C's Disposable Income and using Schedule I - J in its
>place.
>
>
>
>
> 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.
>
>
>
>
>
>
>
> --
> Holly Roark
> holly@roarklawoffic es.com
> www.roarklawoffices .com
> Central District of California
> Consumer Bankruptcy Attorney
>
Mark,
The problem is that B22C calculates a payment to general unsecured creditors not a Plan payment. The Ch13 T has it wrong. Lanning only instructs to adjust the B22C PDI with foreseeable changes in Income and Expenses, this may impact the PDI number being more or less than $0 and therefore impact the plan length pursuant to Kagenveama. As a practical matter only (not a confirmation requirement), the plan payment will be I-J, after a plan length is determine by B22C.
Peter 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: Mark Jessee <mjessee@jesseelaw.com>To: cdcbaa@yahoogroups.comSent: Sat, October 9, 2010 3:46:36 PMSubject: [cdcbaa] Re: After Lanning, the same problems remain using PDI in 1325(b)(1).
I did not fully grasp this string the first time I read it. Now after hours of research I understand the issue of section 1325(1)(B)'s incongruent interplay with sections 1325(b)(2) and 1325(b)(3). However, I still struggle with accepting the (SV) Chapter 13 trustee argument that lines 48, 49, and 50 should always be left blank on form B22C for an above median debtor in determining the disposable monthly income. I had another above median case with the same trustee this past week where form B22C was negative even without the expenses on lines 48 through 50. After initially balking at the expenses on lines 48-50 the trustee dropped her argument that the plan had to be 60 months instead of 36 when I argued that dmi was still negative regardless of those lines and that based upon Kagenveama the plan did not need to be 60 months. Plan was confirmed at schedule I minus J for 36 months. In my review of case law I am not finding anything that
specifically addresses this issue. In Re Martinez 418 B.R. 347 (9th Cir BAP) 2009 holds that entirely undersecured trust deeds that are lien stripped cannot be claimed, because they are a phantom expenses not actually an expense necessary for the support of the debtor or his dependants. This was based upon the Ninth Circuit's Ransom, 577 F.3d 1026 decision holding that in order to claim a vehicle ownership expense on B22C, there had to actually be one. The U.S. Supreme Court in Lanning, does not really address this issue, nor in my view does it completely overturn Kagenveama. Kagenveama's mechanical approach is still where we start, but in unusual circumstances can adjust projected disposable income for one time circumstances like Lanning's lump sum severance payment. The BAP in Martinez points out that Kagenveama did not really delve into what were legitimate expenses necessary for support although in reviewing Kagenveama's form B22C, clearly lines
48-50 were necessary to for the resultant dmi calculation to be negative. I understand that necessary expenses for secured arrears listed on line 48, back due priority taxes on line 49 and trustee fees on line 50 are all paid through the plan and the debtor cannot count them twice in determining the amount of the plan payment. To me it seems it would not be good faith for a debtor to propose such a plan. However, I do not see how 1328(b)(3) requires them to be backed out on form B22C to determine pdi such that it is a 60 month plan instead of 36 months. Section 1325(b)(3) holds that determining dmi for an above median debtor is based upon Section 707(b)(2)(A) & (B) plus section 1325(b)(2)(A)(ii). Section 707(b)(2)A(ii)(III) allows for administrative expenses. Section 707(b)(2)A(iii)(II) clearly incorporates necessary secured creditor payments for home and car arrears. Section 707(b)(2)A(iv) clearly includes payments on priority claims. Under
the plain language of the statute these expenses are part of determining dmi. There is nothing in the statute that says if these expenses exist they must be backed out for determining dmi under Section 1325(b)(3). Unlike claiming car ownership expenses or mortgage payments on lien stripped second trust deeds that do not exist, these are actual expenses that exist and must be paid by the debtors. Just because these are paid through the plan instead of directly by the debtor it should not change the analysis under Section 1325(b)(3). If it is a negative number, Kagenveama's analysis that it does not need to be a 60 month plan should apply. Following the plain language of 1325(b)(3) does not seem to lead to an absurd result. Can anyone direct me to case law authority which address these arguments? Mark Jessee--- In cdcbaa@yahoogroups.com, "James T. King" <king@...> wrote:>> AMI Above Median Income> > PDI Projected Disposable Income> > BMI Below Median Income> > PDI Projected Disposable Income> > Thanks for asking. I am sure a lot did not know orcdcbaa%40yahoogroups.com" relnofollow target_blank ymailto"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of robert90701@...> Sent: Tuesday, July 13, 2010 12:48 PM> To: cdcbaa@yahoogroups.com> Subject: Re: [cdcbaa] After
Lanning, the same problems remain using PDI in 1325(b)(1).> > > > > > Please, what is AMI PDI and BMI PDI?> > > > In a message dated 7/13/2010 8:58:18 A.M. Pacific Daylight Time, petermlively2000@... writes:> > > > Lanning adjustment of AMI PDI doesn't solve the problem that AMI PDI is a measure of only general unsecured creditor value and BMI PDI is a measure of Plan Base. The only way to make 1325(b)(1)(B) function is a non-aburd way is to treat PDI as a Plan Base measure for both AMI & BMI. Otherwise, unsecured creditors must be fully paid before any other plan use for BMI debtors. > > > 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. > > > > > > > ________________________________> > > From: James T. King <king@...>> To:
The post was migrated from Yahoo.
Please, what is AMI PDI and BMI PDI?
In a message dated 7/13/2010 8:58:18 A.M. Pacific Daylight Time,
petermlively2000@yahoo.com writes:
Lanning adjustment of AMI PDI doesn't solve the problem that AMI PDI is ameasure of only general unsecured creditor value and BMI PDI is a measureof Plan Base. The only way to make 1325(b)(1)(B) function is a non-aburdway is to treat PDI as a Plan Base measure for both AMI & BMI. Otherwise,unsecured creditors must be fully paid before any other plan use for BMI
debtors.
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-A-BankrupA-B
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.
Sent: Tue, July 13, 2010 8:12:05 AM
Subject: RE: [cdcbaa] After Lanning, the same problems remain using PDI in 1325(b)(1).
But didnt Lanning say that in the AMI cases you only abandon the B22 if
there are unusual circumstances looking forward? Not USUAL!
Of P L
Sent: Tuesday, July 13, 2010 8:01 AM
To: cdcbaa@yahoogroups. com
Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in 1325(b)(1).
My understanding is that the Chapter 13 Trustees and judges are using PDIas a measure of ability to pay or a plan payment, not a measure of what
goes to the unsecured creditors. Above-median- income debtors (arguably
Chapter 13 only) start with Form B22C Disposable Income, but abandon that number
and use Schedule I - J.
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.
____________________________________
To: cdcbaa@yahoogroups. com
Sent: Mon, July 12, 2010 4:57:50 PM
Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in 1325(b)(1).
This stuff is really hard.
So in my above-median income debtor, I still need to use the PDI on Form
22C as the minimum that the unsecureds will get, and my debtor will have to
pay above and beyond that in order to pay down mortgage arrears. In otherwords, we are still filling up the champagne glasses from the bottom up, or
no?
Holly Roark
CDCA
_holly@roarklawoffic es.com_ (mailto:holly@roarklawoffices.com)
On Mon, Jul 12, 2010 at 12:35 PM, P L wrote:
PDI under 1325(b)(2) used in Chapter 11 and for below-median- income
Chapter 13 debtor follows the preBAPCPA concept of calculating a plan payment;
defining Disposable Income as reducing income by household/living expensesonly. 1325(b)(2) does not reduce CMI by administrative, secured arrears and
priority unsecured claims (other typical plan payment recipients). This
"Disposable Income" is a measure of what plan payment a debtor can afford.PDI under the Chapter 7 Means Test and under 1325(b)(3) with reference to707(b)(2) defines Disposable Income as reducing CMI by household/living
expenses (albeit standardized) and also by secured arrears and priority
unsecured claims. This "Disposable Income" is a measure of what [general]unsecured creditors should receive.
Unfortunately, defining Disposable Income in two entirely different ways
and requiring its use in one 1325(b)(1)(B) formula doesn't work.
BAPCPA changed 1325(b)(1)(B) by inserting "to unsecured creditors" between"will be applied to make payment" and "under the plan" with the obvious
intention that [general] unsecured creditors receive the PDI; Disposable
Income being calculated under 1325(b)(3) and 707(b)(2).
BAPCPA neglected to change the definition of Disposable Income calculatedunder 1325(b)(2) to include reductions of CMI by administrative expenses,secured arrears and priority unsecured claims. The absurd result of usingthis PDI in 1325(b)(1)(B) being that below-median- income debtors must payall that they can afford to [general] unsecured creditors before any PDI can
be used for other plan purposes.
Alternatively, ignoring the addition of "to unsecured creditors" between
"will be applied to make payment" and "under the plan" and interpreting PDI
as a measure of what a debtor can afford to pay makes 1325(b)(3)
superflous.
Lanning's instructions to adjust PDI by foreseeable changes in income andexpenses does not resolve the problem that the statute defines DisposableIncome in two incompatible ways for use in the same test.
Kagenveama (and the dissent in Lanning) got it right when focusing on
1325(b)(1)(B) using 1325(b)(3) as a calculation of what [general] unsecured
creditors should get, if anything. Kagenveama is still applicable post
Lanning, if 1325(b)(1)(B) PDI goes to only [general] unsecured creditors. The courts using PDI under 1325(b)(1)(B) with Disposable Income being
calculated under 1325(b)(2) as a measure of what total monthly amount debtor
can afford to pay also got it right. However, when applying this approachand using Disposable Income calculated under 1325(b)(3), these courts mustignore that BAPCPA's added the phrase "to unsecured creditors" to
1325(b)(1)(B) and must also adjust Disposable Income from a calculation of what
[general] unsecured creditors should receive, to become a measure of ability to
pay; this usually means ignoring Form B22C's Disposable Income and using
Schedule I - J in its place.
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.
Holly Roark
_holly@roarklawoffic es.com_ (mailto:holly@roarklawoffices.com)
_www.roarklawoffices .com_ (http://www.roarklawoffices.com/)
Central District of California
Consumer Bankruptcy Attorney
Please, what is AMI PDI and BMI PDI?
In a message dated 7/13/2010 8:58:18 A.M. Pacific Daylight Time,
petermlively2000@yahoo.com writes:
Lanning adjustment of AMI PDI doesn't solve the problem that
AMI PDI is a measure of only general unsecured creditor value and BMI PDI is a
measure of Plan Base. The only way to make 1325(b)(1)(B) function is
a non-aburd way is to treat PDI as a Plan Base measure for
both AMI & BMI. Otherwise, unsecured creditors must be fully
paid before any other plan use for BMI debtors.
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, July 13, 2010 8:12:05
AMSubject: RE: [cdcbaa]
After Lanning, the same problems remain using PDI in
1325(b)(1).
But didnt
Lanning say that in the AMI cases you only abandon the B22 if there are
unusual circumstances looking forward? Not USUAL!
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups.
com] On Behalf Of P LSent: Tuesday, July 13, 2010 8:01 AMTo: cdcbaa@yahoogroups. comSubject: Re: [cdcbaa] After
Lanning, the same problems remain using PDI in
1325(b)(1).
My understanding is that the Chapter 13 Trustees and judges
are using PDI as a measure of ability to pay or a plan payment, not
a measure of what goes to the unsecured creditors. Above-median- income
debtors (arguably Chapter 13 only) start with Form B22C Disposable Income, but
abandon that number and use Schedule I - J.
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: Holly Roark <hollyroark22@ gmail.com>To: cdcbaa@yahoogroups.
comSent: Mon, July 12, 2010 4:57:50 PMSubject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in
1325(b)(1).
This stuff is really hard.
So in my above-median income debtor, I still need to use
the PDI on Form 22C as the minimum that the unsecureds will get, and my debtor
will have to pay above and beyond that in order to pay down mortgage
arrears. In other words, we are still filling up the champagne glasses
from the bottom up, or no?
Holly Roark
CDCA
The post was migrated from Yahoo.
The "unusual" situation describedLanning was an increasing or decreasing CMI
(Lanning herself had aninflated CMI due to a bonus in the six monthspetition date), I don't think the court meant to restrict the bankruptcy judges
from adjusting PDI freely.
The Lanning holdingsimply states:"when a bankruptcy court calculates a
debtor's projected disposable income, the court may account for changes in the
debtor's income or expenses that are knowor virtually certain at the time of
confirmation."
It seems obvious to me that the majority in Lanning entirely missed the problem
of applyingPDI under 1325(b)(1)(B)and assumed that PDIis a Plan Base
measure.
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, July 13, 2010 8:12:05 AM
Subject: RE: [cdcbaa] After Lanning, the same problems remain using PDI in1325(b)(1).
But didnt Lanning say that in the AMI cases you only abandon the B22 if there
are unusual circumstances looking forward? Not USUAL!
From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P L
Sent: Tuesday, July 13, 2010 8:01 AM
To: cdcbaa@yahoogroups. com
Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in1325(b)(1).
My understanding is that the Chapter 13 Trustees and judges are using PDI as a
measure of ability to payor a planpayment, not a measure of what goes to the
unsecured creditors. Above-median- income debtors (arguably Chapter 13 only)
start with Form B22C Disposable Income, but abandon thatnumber and use Schedule
I - J.
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.
Lanning adjustment of AMIPDIdoesn't solve the problem that AMI PDI is a
measure of only general unsecured creditor value and BMI PDI is a measure of
Plan Base. The only way to make 1325(b)(1)(B) function is anon-aburdway is to
treat PDI as aPlan Base measurefor both AMI & BMI. Otherwise,unsecured
creditors must be fully paid before any other plan usefor BMI debtors.
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, July 13, 2010 8:12:05 AM
Subject: RE: [cdcbaa] After Lanning, the same problems remain using PDI in1325(b)(1).
But didnt Lanning say that in the AMI cases you only abandon the B22 if there
are unusual circumstances looking forward? Not USUAL!
From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P L
Sent: Tuesday, July 13, 2010 8:01 AM
To: cdcbaa@yahoogroups. com
Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in1325(b)(1).
My understanding is that the Chapter 13 Trustees and judges are using PDI as a
measure of ability to payor a planpayment, not a measure of what goes to the
unsecured creditors. Above-median- income debtors (arguably Chapter 13 only)
start with Form B22C Disposable Income, but abandon thatnumber and use Schedule
I - J.
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 understanding is that the Chapter 13 Trustees and judges are using PDI as a
measure of ability to payor a planpayment, not a measure of what goes to the
unsecured creditors. Above-median-income debtors (arguably Chapter 13 only)
start with Form B22C Disposable Income, but abandon thatnumber and use Schedule
I - J.
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: Mon, July 12, 2010 4:57:50 PM
Subject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in1325(b)(1).
This stuff is really hard.
So in my above-median income debtor, I still need to use the PDI on Form 22C as
the minimum that the unsecureds will get, and my debtor will have to pay above
and beyond that in order to pay down mortgage arrears. In other words, we are
still filling up the champagne glasses from the bottom up, or no?
Holly Roark
CDCA
holly@roarklawoffic es.com
On Mon, Jul 12, 2010 at 12:35 PM, P L wrote:
>PDI under 1325(b)(2) used in Chapter 11 and for below-median- income Chapter 13
>debtor follows the preBAPCPA concept of calculating a plan payment; defining
>Disposable Income as reducing income by household/living expenses only.
>1325(b)(2) does not reduce CMI by administrative, secured arrears and priority
>unsecured claims (other typical plan payment recipients). This "Disposable>Income" is a measure of what plan payment a debtor can afford.
>
>
>PDI under the Chapter 7 Means Test and under 1325(b)(3) with reference to>707(b)(2) defines Disposable Income as reducing CMI by household/living expenses
>(albeit standardized) and also by secured arrears and priority unsecured claims.
>This "Disposable Income" is a measure of what [general] unsecured creditors
>should receive.
>
>
>Unfortunately, defining Disposable Income in two entirely different ways and
>requiring its use in one 1325(b)(1)(B) formula doesn't work.
>
>
>BAPCPA changed 1325(b)(1)(B) by inserting "to unsecured creditors" between "will
>be applied to make payment" and "under the plan" with the obvious intention that
>[general] unsecured creditors receive the PDI; Disposable Income being
>calculated under 1325(b)(3) and 707(b)(2).
>
>
>BAPCPA neglected to change the definition of Disposable Income calculated under
>1325(b)(2) to include reductions of CMI by administrative expenses, secured
>arrears and priority unsecured claims. The absurd result of using this PDI in
>1325(b)(1)(B) being that below-median- income debtors must pay all that they can
>afford to [general] unsecured creditors before any PDI can be used for other
>plan purposes.
>
>
>Alternatively, ignoring the addition of "to unsecured creditors" between "will
>be applied to make payment" and "under the plan" and interpreting PDI as a>measure of what a debtor can afford to pay makes 1325(b)(3) superflous.
>
>
>Lanning's instructions to adjust PDI by foreseeable changes in income and>expenses does not resolve the problem thatthe statute defines Disposable Income
>in two incompatible ways for use in the same test.
>
>
>Kagenveama (and the dissent in Lanning) got it right when focusing on
>1325(b)(1)(B) using 1325(b)(3) as a calculation of what [general] unsecured
>creditors should get, if anything. Kagenveama is still applicable post Lanning,
>if 1325(b)(1)(B) PDI goes to only [general] unsecured creditors.
>
>
>The courts using PDI under 1325(b)(1)(B) with Disposable Income being calculated
>under 1325(b)(2) as a measure of what total monthly amount debtor can afford to
>pay also got it right. However, when applying this approach and using
>Disposable Income calculated under 1325(b)(3), these courts must ignore that
>BAPCPA's added the phrase "to unsecured creditors" to 1325(b)(1)(B) and must
>also adjust Disposable Income from a calculation of what [general] unsecured
>creditors should receive, to become a measure of ability to pay; this usually
>means ignoring Form B22C'sDisposable Income andusing Schedule I - J in its
>place.
>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.
>
>
Holly Roark
holly@roarklawoffic es.com
www.roarklawoffices .com
Central District of California
Consumer Bankruptcy Attorney
My understanding is that the Chapter 13 Trustees and judges are using PDI as a measure of ability to pay or a plan payment, not a measure of what goes to the unsecured creditors. Above-median-income debtors (arguably Chapter 13 only) start with Form B22C Disposable Income, but abandon that number and use Schedule I - J. 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: Holly Roark <hollyroark22@gmail.com>To: cdcbaa@yahoogroups.comSent: Mon, July 12, 2010 4:57:50 PMSubject: Re: [cdcbaa] After Lanning, the same problems remain using PDI in 1325(b)(1).
This stuff is really hard.
So in my above-median income debtor, I still need to use the PDI on Form 22C as the minimum that the unsecureds will get, and my debtor will have to pay above and beyond that in order to pay down mortgage arrears. In other words, we are still filling up the champagne glasses from the bottom up, or no?
Holly Roark
CDCA
holly@roarklawoffic es.com
On Mon, Jul 12, 2010 at 12:35 PM, P L <
The post was migrated from Yahoo.