Central District Consumer Bankruptcy Attorney's Association

Mark:
I think Lanning applies and the courts will look at the future DI. When I first read the amendments I thought no creditor would be stupid enough to file an objection in the case where the 6 months prior DI was zero.
dennis

The post was migrated from Yahoo.

Ifabsolute priority rule appliesor the liquidation analysis exceeds PDI over
plan life or no objection under 1129(a)(15), then 1123(a)(8) applies.
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
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________________________________
To: cdcbaa@yahoogroups.com
Sent: Fri, November 19, 2010 2:03:31 PM
Subject: Re: [cdcbaa] disposable income in Individual Ch. 11 cases
Of course, but my point still stands. If the creditor provides whatever his DI
is into the plan, then 1123(a)(8) becomes meaningless because of its language
that an individual debtor must provide future income, etc. that "is necessary
for the execution of the plan." Well, if a creditor objects,1129(a)(15) says that's based on the income received in the 6 months prior to
filing, etc., then that would seem to negate the necessity to put anythingadditional into the plan from future income. Or am I misreading it?
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
The post was migrated from Yahoo.

Of course, but my point still stands. If the creditor provides
whatever his DI is into the plan, then 1123(a)(8) becomes
meaningless because of its language that an individual debtor must
provide future income, etc. that "is necessary for the execution of
the plan." Well, if a creditor objects, the plan under
1129(a)(15) says that's based on the income received in the 6 months
prior to filing, etc., then that would seem to negate the necessity
to put anything additional into the plan from future income. Or am
I misreading it?
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.

Be careful, there is not "plan payment" in individual Chapter 11
under1129(a)(15), it is a total value of 5years worth of PDI,contributed into the plan.
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: Thu, November 18, 2010 4:24:46 PM
Subject: Re: [cdcbaa] disposable income in Individual Ch. 11 cases
Thanks. 1123(a)(8) is virtually meaningless if debtor's plan payment can be set
under 1129(a)(15) based on income received 6 months prior to filing...morass.
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
The post was migrated from Yahoo.

Ultimately, you must know your judge and try to get all classes to consent, if possible
Sent from my iPad
On Nov 18, 2010, at 4:24 PM, "Mark J. Markus" wrote:
> Thanks. 1123(a)(8) is virtually meaningless if debtor's plan payment can be set under 1129(a)(15) based on income received 6 months prior to filing... What a morass.
>
> *************************
> 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)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> ________________________________________________
> 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.
>
> On 11/18/2010 2:45 PM, P L wrote:
>>
>> See 1115 and 1123(a)(8) re unsettled absolute priority rules issue. Regarding PDI, it is unsettled whether 1129(a)(15)'s reference to 1325(b)(3) also incorporates 1325(b)(3) and therefore 707(b)(2) standardized expenses.>>
>> 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: Thu, November 18, 2010 11:06:12 AM
>> Subject: [cdcbaa] disposable income in Individual Ch. 11 cases
>>
>>
>> To my esteemed Ch. 11 colleagues:
>>
>> Unfortunately I missed the McCle on Individual 11s and haven't seen
>> any of the materials posted yet, but I have a potential case now and
>> need to figure out how to calculate the disposable income.
>>
>> If I'm reading this correctly, the amount of the monthly payment a
>> debtor is required to make (aside from the liquidation analysis) if
>> a creditor objects to confirmation pursuant to 1129(a)(15) is based
>> on the projected disposable income defined in 1325(b)(2), which is
>> the CMI figure (last 6 months) minus reasonably necessary
>> expenses. Are these reasonably necessary expenses the IRS
>> standards we use to arrive at the DMI in Ch. 13?
>>
>> And, if this is truly based on 6 months prior to filing, how does
>> post petition income factor in to a Chapter 11 reorganization plan?
>> Must the debtor-in-possession turn over any extra income received by
>> the debtor to creditors if the plan pays less than 100%?
>>
>> For example, debtor's last 6 months yield a monthly gross average of
>> $25,000 per month. If we subtract out actual living expenses
>> (Schedule "J") he's left with about $1,000 per month if we subtract
>> out using the IRS allowed standards (Form 22) he has about $4,500
>> per month. Within the next few months he expects to be paid
>> $150,000 on one project he'll be doing, and another $250,000 a few
>> months later if a deal is signed for something else. Can we avoid
>> a higher monthly payment in Chapter 11 simply by filing now rather
>> than waiting, or would that need to be included in any event? I
>> know how this works in Chapter 13, but am a bit rusty on individual
>> 11s under BAPCPA.
>>
>> Thanks
>> --
>>
>> *************************
>> 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)
>> web: http://www.bklaw.com/
>> This Firm is a Qualified Federal Debt Relief Agency (see what this
>> means at
>> http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
>> ________________________________________________
>> 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.
>>
>
>
Ultimately, you must know your judge and try to get all classes to consent, if possibleSent from my iPadOn Nov 18, 2010, at 4:24 PM, "Mark J. Markus" <bklawr@yahoo.com> wrote:

Thanks. 1123(a)(8) is virtually meaningless if debtor's plan
payment can be set under 1129(a)(15) based on income received 6
months prior to filing... What a morass.

*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.

Thanks. 1123(a)(8) is virtually meaningless if debtor's plan
payment can be set under 1129(a)(15) based on income received 6
months prior to filing... What a morass.
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.

See 1115 and1123(a)(8) re unsettled absolute priority rules issue.RegardingPDI,it is unsettled whether 1129(a)(15)'s reference to 1325(b)(3)
also incorporates 1325(b)(3) and therefore 707(b)(2)standardized expenses.
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: Thu, November 18, 2010 11:06:12 AM
Subject: [cdcbaa] disposable income in Individual Ch. 11 cases
To my esteemed Ch. 11 colleagues:
Unfortunately I missed the McCle on Individual 11s and haven't seen
any of the materials posted yet, but I have a potential case now and
need to figure out how to calculate the disposable income.
If I'm reading this correctly, the amount of the monthly payment a
debtor is required to make (aside from the liquidation analysis) if
a creditor objects to confirmation pursuant to 1129(a)(15) is based
on the projected disposable income defined in 1325(b)(2), which is
the CMI figure (last 6 months) minus reasonably necessary
expenses. Are these reasonably necessary expenses the IRS
standards we use to arrive at the DMI in Ch. 13?
And, if this is truly based on 6 months prior to filing, how does
post petition income factor in to a Chapter 11 reorganization plan?
Must the debtor-in-possession turn over any extra income received by
the debtor to creditors if the plan pays less than 100%?
For example, debtor's last 6 months yield a monthly gross average of
$25,000 per month. If we subtract out actual living expenses
(Schedule "J") he's left with about $1,000 per month if we subtract
out using the IRS allowed standards (Form 22) he has about $4,500
per month. Within the next few months he expects to be paid
$150,000 on one project he'll be doing, and another $250,000 a few
months later if a deal is signed for something else. Can we avoid
a higher monthly payment in Chapter 11 simply by filing now rather
than waiting, or would that need to be included in any event? I
know how this works in Chapter 13, but am a bit rusty on individual
11s under BAPCPA.
Thanks
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.

To my esteemed Ch. 11 colleagues:
Unfortunately I missed the McCle on Individual 11s and haven't seen
any of the materials posted yet, but I have a potential case now and
need to figure out how to calculate the disposable income.
If I'm reading this correctly, the amount of the monthly payment a
debtor is required to make (aside from the liquidation analysis) if
a creditor objects to confirmation pursuant to 1129(a)(15) is based
on the projected disposable income defined in 1325(b)(2), which is
the CMI figure (last 6 months) minus reasonably necessary
expenses. Are these reasonably necessary expenses the IRS
standards we use to arrive at the DMI in Ch. 13?
And, if this is truly based on 6 months prior to filing, how does
post petition income factor in to a Chapter 11 reorganization plan?
Must the debtor-in-possession turn over any extra income received by
the debtor to creditors if the plan pays less than 100%?
For example, debtor's last 6 months yield a monthly gross average of
$25,000 per month. If we subtract out actual living expenses
(Schedule "J") he's left with about $1,000 per month if we subtract
out using the IRS allowed standards (Form 22) he has about $4,500
per month. Within the next few months he expects to be paid
$150,000 on one project he'll be doing, and another $250,000 a few
months later if a deal is signed for something else. Can we avoid
a higher monthly payment in Chapter 11 simply by filing now rather
than waiting, or would that need to be included in any event? I
know how this works in Chapter 13, but am a bit rusty on individual
11s under BAPCPA.
Thanks
*************************
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)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at

The post was migrated from Yahoo.