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HELP -- related to this old thread: Ch. 13 special circumstances
Peter: wouldn't
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Feb 16, 2010, at 7:49 AM, P L wrote:
Great point Jim, 101(10A) defines current monthly income as an alternative (i) six month prior to petition month, or (ii) "the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(b)(ii)."
The motion would be necessary to prevent dismissal under 521 for failure to file a form B22.
We need to establish a form for this procedure...
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
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Telephone: (949)650-3328
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The post was migrated from Yahoo.
You can bring a motion to have the court use a different 6 month period to determine CMI. Your client's situation seems ripe for that kind of motion. Procedurally you would file the case without the B-22 and bring the motion at the time of filing, and then once the motion is filed file a B-22 that is the time period you would like the court to use. It can still be done prior to confirmation.
Jim King
The post was migrated from Yahoo.
Have I missed something? I thought it was the higher of I-J or Form 22C.
Holly Roark
holly@roarklawoffices.com
>
> I'm not sure when Lanning will be decided, but as someone who's practiced in
> a jurisdiction where they use "the other way" to interpret Kagenveama and
> determine disposable income, it's not fun. It squeezes the debtor and makes
> cases infeasible where they otherwise wouldn't be. It really changes your
> analysis of how the consultation goes, since the client only cares about the
> plan payment amount. Potential debtor wants reassurances that the PP will be
> doable, affordable, and reasonable. And all we can tell people in these
> cases is: "your PP is based on a formula; you may or may not be able to
> afford it. Let me work the B22 for you and get back to you."
>
> Lanning, if it comes down the "other way," is a game-changer in the
> fundamental practice of Chapter 13 law once you're accustomed to how we do
> it in the Central District of CA. Once we think it's coming down, might not
> a bad idea to have your 13s ready to file before the decision, unless you're
> a gamblin' man (or woman).
>
> Nancy is familiar with Kagenveama. I sat next to her during a CDCBAA
> MCLE... on the B22, if I recall. People shot questions to her and other
> trustees in attendance, and one of her answers specifically referenced the
> case.
>
> If NC is jumping onboard early and changing how she interprets Kagenveama
> based on the Supreme Court granting cert to Lanning, well, these are the
> events I was trying to inform when I sounded warning bells I back in June
> last year once I got a taste of 13s "other way." Hope this helps. Hale
>
>
> _____
>
> Amy Clark
> Sent: Tuesday, February 09, 2010 4:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special
> circumstances
>
>
>
>
> Hello!
>
> I had understood that the plan payment in Chapter 13 was determined using I
> - J. That is the way I had done it before in Los Angeles and Riverside and
> no problems.
>
> Today, I had a 341 with NC and she explained that "there is this 9th circuit
> case" that states that 60 times line 59 on the means test is the amount that
> must be paid over the life of the plan. I asked if she meant Kagenveama and
> she just looked at me and blinked and said I needed to look over my
> analysis.
>
>
> As you probably figured out, in this case, I - J was a lot lower payment.
>
> Did CDCal change the way Chapter 13 plan payments are being determined? >
> -- Amy Clark Kleinpeter
>
> 1489 E. Colorado Blvd. #207
> Pasadena, CA 91106
> (626) 507-8090
>
> "Bankruptcy, Michael, is nature's do-over. It's a fresh start, a clean
> slate."
>
> "Like the witness protection program!"
>
> "Exactly."
>
>
>
> 2009/6/4 Hale Andrew Antico
>
>
>
>
>
>
> Here, we use Kagenveama to help the debtors. In other places, it is used to
> hinder their confirmation.
>
> Take our neighbors to the north (no, not Canada). In the Eastern District,
> Chapter 13 Trustee Mike Meyer takes the position that Kagenveama requires
> the Class 5 unsecureds to get *at least* the amount of the Disposable Income
> on Form B22C, times 60 months (subtracting for administrative and attorney
> costs). In other words, if the B22 Disposable Income number is greater than
> "I - J" your plan won't work. I was informed that my plan was infeasible
> under Kagenveama, and the objection was forthcoming. (the particular plan
> has a large amount of Class 2 payments for arrearages, leaving unsecureds
> with less than ten percent).
>
> I will respond to his objection if he indeed files it, citing Pak, etc. I
> guess the interpretation of Kagenveama is far from settled. To my
> knowledge, no Central District judge interprets this case the way Mr. Meyer
> does... (has a trustee tested it as such here?)
>
> I'll let you know how it goes. My situation if/when it develops there might
> have some impact on us here.
> Hale
>
>
> _____
>
P
> L
>
> Sent: Wednesday, November 26, 2008 12:54 PM
>
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ch. 13 special circumstances
>
>
>
>
> You may be able to use In re Pak which has language regarding the debtor not
> being forced to pay more than she can afford. Arguably, Pak could still
> apply post Kagenveama since it deals with a positive B22C. This is an
> excerpt from a resposne to objection to plan confirmation (pre-Kagenveama),
> ecast ultimately withdrew its objection and the plan was confirmed at I - J.
>
>
> Here, Debtor's actual income and expenses, that is, the figures set forth on
> Schedules I and J, yield a total monthly disposable income figure that, once
> deductions are made for payment of administrative and priority expenses, is
> less than the amount provided in Amended Form B22C.4 Under Pak, the Court
> may make adjustments to initial projected disposable income figure in its
> discretion such that the Debtor is paying into her Plan as much as she can
> afford.
>
> Applying a more rigid interpretation of 11 U.S.C. 1325(b)(1)(B) as
> requiring the Form B22C disposable income figure to be received by only the
> general unsecured creditor class on these facts, as urged by eCast, would
> cause the inequitable result of prohibiting payment of the Debtor's actual
> reasonable living expenses, the actual administrative expenses of this case
> and would deny all creditors the opportunity for an orderly distribution of
> Debtor's actual foreseeable disposable income over the maximum plan duration
> of five years.
>
> Accordingly, the Court here is urged to confirm Debtor's Chapter 13 Plan
> based upon her actual disposable income as directed by Pak.
>
>
>
> --- On Wed, 11/26/08, Mark JM wrote:
>
>
> Subject: [cdcbaa] Ch. 13 special circumstances
> To: cdcbaa@yahoogroups.com
> Date: Wednesday, November 26, 2008, 11:45 AM
>
>
> How successful have any of you been arguing for a lower monthly plan payment
> than is indicated by the Form 22C disposable income test?
>
> Are the Trustees/Courts strictly adhering to whatever 22C says, or can you
> argue that the IRS living expense standards are insane, or that the debtor
> is paying more than court ordered child support, etc.?
>
> ************ ********* ****
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> Toll Free: 1-866-576-6275
> web: http://www.bklaw. com/
> This Firm is a Qualified Federal Debt Relief Agency
> _____
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, for the purpose of (i) avoiding penalties under the
> Internal Revenue Code or (ii) promoting, marketing or recommending to
> another party any transaction or matter addressed in this communication
>
The post was migrated from Yahoo.
I'm not sure when Lanning will be decided, but as someone who's practiced in
a jurisdiction where they use "the other way" to interpret Kagenveama and
determine disposable income, it's not fun. It squeezes the debtor and makes
cases infeasible where they otherwise wouldn't be. It really changes your
analysis of how the consultation goes, since the client only cares about the
plan payment amount. Potential debtor wants reassurances that the PP will be
doable, affordable, and reasonable. And all we can tell people in these
cases is: "your PP is based on a formula; you may or may not be able to
afford it. Let me work the B22 for you and get back to you."
Lanning, if it comes down the "other way," is a game-changer in the
fundamental practice of Chapter 13 law once you're accustomed to how we do
it in the Central District of CA. Once we think it's coming down, might not
a bad idea to have your 13s ready to file before the decision, unless you're
a gamblin' man (or woman).
Nancy is familiar with Kagenveama. I sat next to her during a CDCBAA
MCLE... on the B22, if I recall. People shot questions to her and other
trustees in attendance, and one of her answers specifically referenced the
case.
If NC is jumping onboard early and changing how she interprets Kagenveama
based on the Supreme Court granting cert to Lanning, well, these are the
events I was trying to inform when I sounded warning bells I back in June
last year once I got a taste of 13s "other way." Hope this helps. Hale
_____
The post was migrated from Yahoo.
On that note, I advise that you got to the hearing prepared for battle if you are filing in Riverside. Many issues can be resolved at the 341(a) hearing but you must be prepared. You should calculate the YTD income in advance and have the proof of the change in circumstances to the trustee seven days before the hearing. Make sure that anything out of the ordinary in the means test is documented and supported and in the trustees hands prior to the hearing. I always argue that YTD calculation is in violation of Kagenveama which requires a six month calculation. The trustee always responds that they can do a modification after confirmation. So, be prepared to discuss why the income is lower at the time of filing.
WARNING: the trustee and Judge P. Carroll do not allow the IRS standard deduction for ownership vehicles ($489) unless the vehicle payment is higher than $489. They only allow the actual vehicle payment over 60 month term of the plan. The trustee has written a brief on this issue and is prepared to appeal.
Nancy Clark
Borowitz & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
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________________________________
The post was migrated from Yahoo.
You have described the Lanning case, now pending before the Supreme Court. Go to http://www.scotuswiki.com/index.php?tit ... v._Lanning for the briefs (and my analysis).
>
> Nancy would never lead you astray. You have the right case in mind. The 9th circuit did it and the CDCal must follow.
>
>
>
Amy Clark
> Sent: Tuesday, February 09, 2010 4:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special circumstances
>
>
>
>
>
> Hello!
>
>
>
> I had understood that the plan payment in Chapter 13 was determined using I - J. That is the way I had done it before in Los Angeles and Riverside and no problems.
>
>
>
> Today, I had a 341 with NC and she explained that "there is this 9th circuit case" that states that 60 times line 59 on the means test is the amount that must be paid over the life of the plan. I asked if she meant Kagenveama and she just looked at me and blinked and said I needed to look over my analysis.
>
>
>
> As you probably figured out, in this case, I - J was a lot lower payment.
>
>
>
> Did CDCal change the way Chapter 13 plan payments are being determined? >
>
> -- Amy Clark Kleinpeter
>
> 1489 E. Colorado Blvd. #207
> Pasadena, CA 91106
> (626) 507-8090
>
> "Bankruptcy, Michael, is nature's do-over. It's a fresh start, a clean slate."
>
> "Like the witness protection program!"
>
> "Exactly."
>
>
>
> 2009/6/4 Hale Andrew Antico
>
>
>
> Here, we use Kagenveama to help the debtors. In other places, it is used to hinder their confirmation.
>
>
>
> Take our neighbors to the north (no, not Canada). In the Eastern District, Chapter 13 Trustee Mike Meyer takes the position that Kagenveama requires the Class 5 unsecureds to get *at least* the amount of the Disposable Income on Form B22C, times 60 months (subtracting for administrative and attorney costs). In other words, if the B22 Disposable Income number is greater than "I - J" your plan won't work. I was informed that my plan was infeasible under Kagenveama, and the objection was forthcoming. (the particular plan has a large amount of Class 2 payments for arrearages, leaving unsecureds with less than ten percent).
>
>
>
> I will respond to his objection if he indeed files it, citing Pak, etc. I guess the interpretation of Kagenveama is far from settled. To my knowledge, no Central District judge interprets this case the way Mr. Meyer does... (has a trustee tested it as such here?)
>
>
>
> I'll let you know how it goes. My situation if/when it develops there might have some impact on us here.
>
> Hale
>
>
>
>
> ________________________________
>
P L
>
>
> Sent: Wednesday, November 26, 2008 12:54 PM
>
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ch. 13 special circumstances
>
> You may be able to use In re Pak which has language regarding the debtor not being forced to pay more than she can afford. Arguably, Pak could still apply post Kagenveama since it deals with a positive B22C. This is an excerpt from a resposne to objection to plan confirmation (pre-Kagenveama), ecast ultimately withdrew its objection and the plan was confirmed at I - J.
>
>
>
> Here, Debtor's actual income and expenses, that is, the figures set forth on Schedules I and J, yield a total monthly disposable income figure that, once deductions are made for payment of administrative and priority expenses, is less than the amount provided in Amended Form B22C.4 Under Pak, the Court may make adjustments to initial projected disposable income figure in its discretion such that the Debtor is paying into her Plan as much as she can afford.
>
> Applying a more rigid interpretation of 11 U.S.C. 1325(b)(1)(B) as requiring the Form B22C disposable income figure to be received by only the general unsecured creditor class on these facts, as urged by eCast, would cause the inequitable result of prohibiting payment of the Debtor's actual reasonable living expenses, the actual administrative expenses of this case and would deny all creditors the opportunity for an orderly distribution of Debtor's actual foreseeable disposable income over the maximum plan duration of five years.
>
> Accordingly, the Court here is urged to confirm Debtor's Chapter 13 Plan based upon her actual disposable income as directed by Pak.
>
>
>
> --- On Wed, 11/26/08, Mark JM wrote:
>
> Subject: [cdcbaa] Ch. 13 special circumstances
> To: cdcbaa@yahoogroups.com
> Date: Wednesday, November 26, 2008, 11:45 AM
>
> How successful have any of you been arguing for a lower monthly plan payment than is indicated by the Form 22C disposable income test?
>
>
>
> Are the Trustees/Courts strictly adhering to whatever 22C says, or can you argue that the IRS living expense standards are insane, or that the debtor is paying more than court ordered child support, etc.?
>
>
>
> ************ ********* ****
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> Toll Free: 1-866-576-6275
> web: http://www.bklaw. com/
> This Firm is a Qualified Federal Debt Relief Agency
> _____
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication
>
The post was migrated from Yahoo.
FYI In Riverside the Trustee may increase the plan payment on the basis the monthly income is determined by dividing the YTD income by the number of the months in the year it was received as the monthly income, not just what was received the last month, unless you can show that overtime, bonus, etc. is no longer expected.
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