It is all class 5 debt, but you can look at the debtor's true available I-J income and propose that as your plan payment. If debtor's expenses are reasonable, then s/he may not have to pay 60xDMI to class 5 (judges have discretion here, per Lanning). The student loan creditor should get the same percentage as the other class 5 creditors.
(I did a plan recently in which we paid the student loans outside the plan as long term debt--so no trustee fees on those payments--and paid other class 5 creditors 100% in the plan. But sounds like this would not help your debtor, since s/he is already having trouble with the regular monthly payments.)
>
> Debtor only has $2,500 in credit card debt. He has $120,000 in student
> loan debt and wants to do a chapter 13 to get some breathing room on the
> monthly student loan payments. On Form 22C his disposable monthly income
> is very high: $2,800. This is purely theoretical and includes his wife's
> income, who will not be filing. He doesn't actually have that kind of
> disposable income.
>
> My question is: if we propose to pay 100% of the non student loan unsecured
> debt ($2,500), do we have to still pay the equivalent of $2,800/month for
> 60 months (which would all go to the student loans)? It's my understanding
> that the general unsecureds are entitled to at least the DMI x 60. Are
> student loans considered as part of the "general unsecureds" for the
> purpose of this calculation? As you all know, although student loans are
> not currently dischargeable, we are not allowed to give them priority
> payments (at least not in CDCA), but can we pay them less than DMI x 60?
> Are we able to designate that certain payments go to principal? Does the
> nonfiling spouse's income HAVE to be considered when the plan is really
> meant to pay down the separate student loan debt of the filer husband?
> She's not liable on this debt as it was incurred before marriage. It
> doesn't seem fair that her income (included on Form 22C) should be included
> in his DMI under this circumstance.
>
> Any guidance you can provide is appreciated.
>
> Holly Roark
> holly@...
>
www.roarklawoffices.com
> Central District of California
> Consumer Bankruptcy Attorney
> 1875 Century Park East, Suite 600
> Los Angeles, CA 90067
> T (310) 553-2600
> F (310) 553-2601
>
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