Student Loans in CH. 13
Posted: Mon Sep 13, 2004 5:33 pm
Thanks. And I assume then that you had the student loan payment amount allowed as a reasonable expense in Schedule "J"? In this case I suspect that the general unsecureds will end up getting a much higher percentage than the student loan creditors will get (as a percentage); but the student loan creditors would be receiving a much higher dollar amount.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, September 13, 2004 5:03 PM
Subject: Re: [cdcbaa] Student Loans in CH. 13
I have confirmed a plan before TD which called for direct payments to a student loan. In that case, the distribution percentage to class 5 happened to exactly equal the percentage the student loan creditor was to receive during the life of the plan. Also, there were no priority creditors to be paid before the unsecureds and no secured creditors being paid through the plan to delay payments.
Therefore, I was able to effectively argue that there was no discrimination at all. My brief in support did go into an analysis of the case law on the subject. I believe that 1322, case law and the legislative history of 1322 supports "discrimination" by paying student loan creditors separately without it being unfair. Generally, the courts don't like to see: 1) 100% payment of student loan debt either through the plan or "outside" the plan unless all unsecured creditors are receiving 100%; or 2) a huge discrepancy (percentage-wise) between what the student loan creditor will receive and what class five creditors will receive.
Brian D. Wirsching
Law Offices of David A. Tilem
500 N. Brand Blvd., Suite 460
Glendale, CA 91203
Tel: 818-507-6000
Fax: 818-507-6800
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, September 13, 2004 4:50 PM
Subject: [cdcbaa] Student Loans in CH. 13
Has anyone had success with separately classifying student loans in a Ch. 13 case? I know the norm is to just include them in the general unsecured class and they get paid whatever the other unsecureds get paid, then when the Ch. 13 is complete, the debtor is in default on the loans and owes all accrued interest and penalties.
I'm just wondering if there's any way to have the minimum monthly payment allowed as a budget item and paid outside the plan.
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
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Thanks. And I assume then that you had
the student loan payment amount allowed as a reasonable expense in Schedule"J"? In this case I suspect that the general unsecureds will end up
getting a much higher percentage than the student loan creditors will get (as a
percentage); but the student loan creditors would be receiving a much higher
dollar amount.
----- Original Message -----
From:
Brian D. Wirsching
To: cdcbaa@yahoogroups.com
Sent: Monday, September 13, 2004 5:03
PM
Subject: Re: [cdcbaa] Student Loans in
CH. 13
I have confirmed a plan before TD which
called for direct payments to a student loan. In that case, the
distribution percentage to class 5 happened to exactly equal the percentage
the student loan creditor was to receive during the life of the plan.
Also, there were no priority creditors to be paid before the unsecureds and no
secured creditors being paid through the plan to delay payments.
Therefore, I was able to effectively argue that
there was no discrimination at all. My brief in support did go into an
analysis of the case law on the subject. I believe that 1322, case law
and the legislative history of 1322 supports "discrimination" by paying
student loan creditors separately without it being unfair. Generally,
the courts don't like to see: 1) 100% payment of student loan debt
either through the plan or "outside" the plan unless all unsecured
creditors are receiving 100%; or 2) a huge discrepancy (percentage-wise)
between what the student loan creditor will receive and what class five
creditors will receive.
Brian D. WirschingLaw Offices of David A.
Tilem500 N. Brand Blvd., Suite 460Glendale, CA 91203Tel:
818-507-6000Fax: 818-507-6800
----- Original Message -----
From:
Mark J. Markus
To: cdcbaa@yahoogroups.com
Sent: Monday, September 13, 2004 4:50
PM
Subject: [cdcbaa] Student Loans in CH.
13
Has anyone had success with separately classifying student loans in a Ch. 13 case? I know the norm is to just
include them in the general unsecured class and they get paid whatever the
other unsecureds get paid, then when the Ch. 13 is complete, the debtor is
in default on the loans and owes all accrued interest and penalties.
I'm just wondering if there's any way to have
the minimum monthly payment allowed as a budget item and paid outside the
plan.
***********************************************Mark J.
MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB
#403Studio City, CA 91604-2652(818)509-1173(818)509-1460
(fax)e-mail: bklawr@bklaw.comweb:
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