5/28/09
To: Mark J. Markus
In November 2008 you posted this query. I have a similar situation and wonder if you can share with me the option your client took and the result. Thanks in advance.
Sharon C. Hughes
Hughes & Dunstan, LLP
21650 Oxnard Street, Suite 1960
Woodland Hills, CA 91367
Tel: 818-715-9558 x1001
schug98@aol.com
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> On those facts, there is no ACP requirement underKagenveama.
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> This highlights the disparity between above and below-median-income debtor regarding application of 11 U.S.C. 541(b)(7).
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> I think its better to go with the Chapter 7 and add the retirement under "other expenses" with a reference to 541(b)(7) and let the UST make the argument that the disparity in the forms makes sense.
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> --- On Mon, 11/3/08, Mark JM wrote:
>
> Subject: [cdcbaa] Means Test Questions 7 vs. 13
> To:
cdcbaa@yahoogroups.com
> Date: Monday, November 3, 2008, 5:47 PM
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> Revisiting this issue:
>
> Debtor is not "passing" the means test for a chapter 7 and is showing approximately $300 surplus income on Form 22A. This of course does not include voluntary retirement contributions or 401k loan repayments which together total almost $800 per month.
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> So when I go to tell my client how much her Chapter 13 plan payment is likely to be, I move to Form 22C and plug in the allowed retirement deductions on line 55 and, lo and behold, Negative Disposable Income! So, under Kagenveama, debtor has a zero monthly payment plan in a Chapter 13.
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> So my question is, would it be best to file a Chapter 7 and argue as special circumstances the nonsensical result above, or should I file a Chapter 13 with a $25 monthly plan payment for 60 months and argue how debtor is being extremely magnanimous in paying 25 times the required monthly amount?
>
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> Mark J. Markus
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