Rod Danielson Motion to Increase Plan Payments
Posted: Tue Jul 19, 2016 7:44 am
The "excess" disposable income is "at risk" of a trustee demand because 1306 defines it as estate property and this is a "hot" issue, I agree with David that efforts by trustees to require turnover should be resisted.
1329 provides for trustee and creditors MOMODs, but the enumerated elements don't suggest revisiting 1325(b) only 1325(a), 1322(a) & (b) and 1323(c) requirements.
However, where a debtor ignores a plan confirmation order's requirement of yearly amended budgets pursuant to 521(f), both the excess disposable income and the discharge are at risk. It is prudent practice to advise debtors of their duties under the plan confirmation order and the inherent risks in not doing so.
My statement regarding yearly budgets is hereby qualified as "review" rather than "amend" (which suggests filing the documents with the court) despite qualified 521(f) yearly amended budget filing requests. Often times debtor's circumstances change such that a reduction in plan payments is warranted. It is not my practice to advise debtors to volunteer excess disposable income unless doing so is necessary to achieve a feasible plan modification. I'm well known for my efforts to resist overreacting creditors and trustees which is a general policy of cdcbaa, nothing has changed in this regard.
Sent from my iPhone - please excuse typos.
> On Jul 18, 2016, at 5:21 PM, David Tilem DavidTilem@TilemLaw.com [cdcbaa] wrote:
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> Peter is one of the best around, but I respectfully disagree.
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> In my view, the excess disposable income may be property of the estate, but it is NOT subject to a creditors, or the Trustees whim to increase plan payments. I have two arguments for my position:
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> 1. The best efforts test is applied in connection with confirmation at 1325(b(1)(B) the section dealing with Plan confirmation. It is not to my knowledge a continuing duty of the Debtor. If someone disagrees, please find me cases to the contrary. The same test would be revisited if, for example, the Debtor files a MoMod.
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> 2. If the Trustee can get excess disposable income, then how is that different than a Trustee demanding that the Debtor sell his/her home to reach excess equity which may have accumulated during the case? Im not taking about equity from post-petition payments that would be trivial. I am talking about post-petition appreciation which could be substantial.
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> The contrary position effectively eviscerates the difference between a C7 and a C13. Motions by Chapter 13 Trustees to reach this excess anyone has half-way decent facts.
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> David A. Tilem
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> Certified Bankruptcy Specialist Since 1997
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> Sent: Sunday, July 17, 2016 5:18 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Re: Rod Danielson Motion to Increase Plan Payments
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> Keep in mind that the mandatory CDCA plan doesn't revest property of the estate in the debtor until discharge.
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> 1306 (a) Property of the estate includes, in addition to the property specified in section 541 of this title
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> (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first; and
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> (2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first.
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> (b) Except as provided in a confirmed plan or order confirming a plan, the debtor shall remain in possession of all property of the estate.
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> ///
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> The debtor is presumably authorized to spend the aggregate amount set forth on schedule J and make the plan payment, the rest of the "excess" disposable income that accumulates postpetition is always at risk for the trustee to demand.
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> It's prudent practice to amend the debtor's Schedules I and J when there is a change in disposable income or at least advise debtors of the risk in not doing so. Some trustees include, in the confirmation orders, a requirement to amend the budgets yearly pursuant to 521(f).
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> 521 (f) At the request of the court, the United States trustee, or any party in interest in a case under chapter 7, 11, or 13, a debtor who is an individual shall file with the court
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> (4) in a case under chapter 13
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> (A) on the date that is either 90 days after the end of such tax year or 1 year after the date of the commencement of the case, whichever is later, if a plan is not confirmed before such later date; and
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> (B) annually after the plan is confirmed and until the case is closed, not later than the date that is 45 days before the anniversary of the confirmation of the plan;
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> a statement, under penalty of perjury, of the income and expenditures of the debtor during the tax year of the debtor most recently concluded before such statement is filed under this paragraph, and of the monthly income of the debtor, that shows how income, expenditures, and monthly income are calculated.
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> Sent from my iPhone - please excuse typos.
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> On Jul 16, 2016, at 3:00 PM, 'Gerald McNally' gm@mcesq.com [cdcbaa] wrote:
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> I had one of those cases recently in Los Angeles, and the debtor simply
> explained where all the money went, and the Trustee withdrew her motion.
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> Gerry McNally
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> I had one of those cases recently in Los Angeles, and the debtor simply explained where all the money went, and the Trustee withdrew her motion.
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The post was migrated from Yahoo.