HELP -- related to this old thread: Ch. 13 specia=
Posted: Tue Feb 16, 2010 7:49 am
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 currentebtor 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 filea formB22.
We need to establish a formfor this procedure...
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
1706-B Newport Boulevard, Costa Mesa, CA 92627-3073
Telephone: (949)650-3328
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: Tue, February 16, 2010 7:01:08 AM
Subject: RE: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special circumstances
You can bring a motion to have the court use a different 6 month period to determine CMI. Your clients 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
From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of Amy Clark
Sent: Monday, February 15, 2010 11:48 AM
To: cdcbaa@yahoogroups. com
Subject: Re: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special circumstances
No Holly, that seems to be exactly the way. I just thought it was always I-J -- I guess my clients before this one have all had I-J be the highest so I was excited that I finally had clients for whom using I-J was helpful.
Nope, it's "whichever makes it harder on the debtor". Argh...
I would NEVER have filed a 13 if my clients knew at the time of filing they would not be getting the same salary for long. This case was filed in October, accidentally dismissed by the clerk's office in December and then reinstated in January -- so back in October when we filed, my clients did not know their incomes would be decreasing. We actually had waited to file quite a few months until their daughter started Kindergarten so there expenses would be higher.
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."
On Wed, Feb 10, 2010 at 8:07 PM, Holly Roark wrote:
Have I missed something? I thought it was the higher of I-J or Form 22C.
Holly Roark
holly@roarklawoffic es.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
>
>
> _____
>
Of
> 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
>
>
> _____
>
Of 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
>
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/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.com
Personal Financial Law Center II1706-B Newport Boulevard, Costa Mesa, CA 92627-3073Telephone: (949)650-3328
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.
From: James T. King <king@kingobk.com>To: cdcbaa@yahoogroups.comSent: Tue, February 16, 2010 7:01:08 AMSubject: RE: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special circumstances
You can bring a motion to have the court use a different 6 month period to determine CMI. Your clients 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
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of Amy ClarkSent: Monday, February 15, 2010 11:48 AMTo: cdcbaa@yahoogroups. comSubject: Re: HELP -- related to this old thread: Re: [cdcbaa] Ch. 13 special circumstances
No Holly, that seems to be exactly the way. I just thought it was always I-J -- I guess my clients before this one have all had I-J be the highest so I was excited that I finally had clients for whom using I-J was helpful.
Nope, it's "whichever makes it harder on the debtor". Argh...
I would NEVER have filed a 13 if my clients knew at the time of filing they would not be getting the same salary for long. This case was filed in October, accidentally dismissed by the clerk's office in December and then reinstated in January -- so back in October when we filed, my clients did not know their incomes would be decreasing. We actually had waited to file quite a few months until their daughter started Kindergarten so there expenses would be higher.
-- Amy Clark Kleinpeter1489 E. Colorado Blvd. #207Pasadena, 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."
On Wed, Feb 10, 2010 at 8:07 PM, Holly Roark <roarklaw@yahoo. com> wrote:
Have I missed something? I thought it was the higher of I-J or Form 22C. Holly Roarkholly@roarklawoffic es.com
--- In cdcbaa@yahoogroups. com, "Hale Andrew Antico" <bk.lawyer@.. .> wrote:>> 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> > > _____ > &om [mailto:cdcbaa@yahoogroups. com] On Behalf Of> 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 <bk.lawyer@.. .>
> > > > > > > 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> > > _____ >target_blank ymailto"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups. com [mailto:cdcbaa@yahoogroups. com] On Behalf Of 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,<bklawr@...>
> 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/ <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
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