Archive for June, 2010

U.S. Supreme Court’s Recent Ruling Turns 9th Circuit “Projected Disposable Income” Calculation Precedent on Its Head

Friday, June 18th, 2010

U.S. Supreme Court’s Recent Ruling Turns 9th Circuit “Projected Disposable Income” Calculation Precedent on Its Head

Many individuals seeking debt relief by filing for bankruptcy discover that the “Means Test”, found in 11 U.S.C. §§ 707(b)(2) and 1325(b)(2), requires them to file a Chapter 13 reorganization bankruptcy rather than the more commonly employed Chapter 7 liquidation bankruptcy.  When determining the amount an individual will have to pay each month through a Chapter 13 plan of reorganization, 11 U.S.C. § 1325(b)(1)(B) mandates that:

If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan—

The plan provides that all of the debtor’s projected disposable income be received in the applicable commitment period [determined by 11 U.S.C. § 1325(b)(4)]…

Naturally, those seeking bankruptcy relief desire to minimize both their “projected disposable income” and the “applicable commitment period”.  Unfortunately, the Bankruptcy Code fails to define the term “projected disposable income”; but the Code does define the term “disposable income” as

[The debtor’s] current monthly income … less amounts reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor, or for a domestic support obligation, … and for charitable contributions … in an amount not to exceed 15 percent of the gross income of the debtor for the year in which the contributions are made, and if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business.

11 U.S.C. §1325(b)(2).  Thus, courts have been trying to grapple with the question of: What is the interplay between a debtor’s “disposable income” and “projected disposable income”? The Bankruptcy Code clarifies that an individual’s “disposable income” begins with that individuals “current monthly income” derived by averaging the debtor’s income received within the six months prior to filing bankruptcy (not including the month the case is filed).  See 11 U.S.C. § 101(10A).  However, if an individual’s “projected disposable income” is mechanically determined by simply multiplying the individual’s “disposable income” by the “applicable commitment period”, those experiencing a significant increase or, more commonly, a significant decrease in income immediately prior to filing for bankruptcy would either receive a windfall or be stuck in a plan of reorganization which the individual cannot feasibly fund.

The 9th Circuit held in In re Kagenveama, 541 F.3d 868 (9th Cir., 2008), that there is a direct link between a debtor’s “disposable income” and “projected disposable income”.  The Kagenveama Court held that the “plain meaning” of the Bankruptcy Code requires bankruptcy courts located within the 9th Circuit (including federal courts located in Arizona, California, Nevada, Oregon, Idaho, Washington, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands) to take a mechanical approach to the determination of a Chapter 13 debtor’s “projected disposable income”.  In so holding, the Kagenveama Court stated: “we will not de-couple ‘disposable income’ from the ‘projected disposable income’ calculation simply to arrive at a more favorable result for unsecured creditors, especially when the plain text and precedent dictate the linkage of the two terms.” Kagenveama, 541 F.3d at 875. Thus, “[t]o get from the statutorily defined ‘disposable income’ to ‘projected disposable income,’ ‘one simply takes the calculation … and does the math.’”  Id. at 874.  The Kagenveama Court further analyzed the meaning and context of “applicable commitment period” and held that “[w]hen read together, only ‘projected disposable income’ has to be paid out over the ‘applicable commitment period.’ When there is no ‘projected disposable income,’ there is no ‘applicable commitment period.’”  Id. at 876.

As of June 7, 2010, the U.S. Supreme Court effectively overruled at least the first portion of the Kagenveama Court’s ruling by adopting the “forward-looking approach”, in In re Lanning, 2010 WL 2243704 (U.S.,2010).  Despite the major changes to the Bankruptcy Code in 2005, the Supreme Court took a historical approach in interpreting the term “projected disposable income” to find: “Congress did not amend the term ‘projected disposable income’ in 2005, and pre-BAPCPA bankruptcy practice reflected a widely acknowledged and well-documented view that courts may take into account known or virtually certain changes to debtors’ income or expenses when projecting disposable income.” Lanning, 2010 WL 2243704 at pg. 7.  As a result, the Supreme Court held “a court taking the forward-looking approach should begin by calculating disposable income, and in most cases, nothing more is required. It is only in unusual cases that a court may go further and take into account other known or virtually certain information about the debtor’s future income or expenses.” Id. at pg. 9.

The High Court indicated that the “forward-looking approach” will address the inequity in cases where there is a significant increase or decrease in the debtor’s income immediately prior to filing for bankruptcy.

In cases in which a debtor’s disposable income during the 6-month look-back period is either substantially lower or higher than the debtor’s disposable income during the plan period, the mechanical approach would produce senseless results that we do not think Congress intended. In cases in which the debtor’s disposable income is higher during the plan period, the mechanical approach would deny creditors payments that the debtor could easily make. And where, as in the present case, the debtor’s disposable income during the plan period is substantially lower, the mechanical approach would deny the protection of Chapter 13 to debtors who meet the chapter’s main eligibility requirements.

Id. at pg. 10.

Consequently, the Lanning Court held: “Consistent with the text of § 1325 and pre-BAPCPA practice, we hold that when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation.” Id. at pg. 11.  However, the High Court failed to address the second portion of the Kagenveama decision regarding whether there an “applicable commitment period” when both the “mechanical approach” and “forward-looking approach” result in no “projected disposable income.”  As such, it appears that certain Chapter 13 debtors may still be able to confirm a plan of reorganization with a duration less than the three to five year “applicable commitment period” required in most Chapter 13 cases.

If you are considering bankruptcy, and would like to learn more about a Chapter 7 or Chapter 13 case, please call us today for a free initial consumer bankruptcy consultation, or attend one of our upcoming free bankruptcy seminars.  To learn more, visit us at www.McGuireGardner.com or www.freearizonabankruptcyseminar.com

Should I File For Bankruptcy Before My Car Is Repossessed?

Tuesday, June 15th, 2010

Should I File For Bankruptcy Before My Car Is Repossessed?

For many people struggling with their finances, the threat of losing a vehicle through repossession may be the final straw that drives them to discuss their case with a bankruptcy attorney.

Vehicles that are repossessed without a bankruptcy being filed, typically result in the vehicle being sold, and the lender then continuing to try to collect against the former owner for the “deficiency” which is the amount owed after providing credit for the amount that the vehicle sold for.  Because of the tacked on attorneys fees and repossession fees, in many cases the amount owed is close to what was owed before the vehicle was repossessed.

Bankruptcy can help.  By filing bankruptcy, whether before or after the vehicle is repossessed or voluntarily turned back over to the lender, this deficiency or potential remaining debt on the vehicle can be included in the bankruptcy and discharged (eliminated) along with the other debts that a person may have.

An advantage of filing for bankruptcy before the repossession is that doing so will slow down the repossession until the creditor receives permission from the Court to pursue the repossession.  Generally, repossessions after filing bankruptcy are coordinated and scheduled ahead of time rather than having your vehicle just disappear when you least expect it.

If you are struggling with debt, and you are concerned about possibly having a vehicle repossessed, please call us for a free bankruptcy consultation.

For more information, or to register for one of our free bankruptcy seminars, please visit www.mcguiregardner.com or www.freearizonabankruptcyseminar.com

Know your options and use current laws as a tool to determine if bankruptcy is the best option

Friday, June 4th, 2010

As the recession continues more people who have been able to hold off a bankruptcy are finding themselves with no other option but to file.  Just this last March 149,268 bankruptcies were filed in the United States.  According the American Bankruptcy Institute the filings represented a 34 percent increase from February.

Similarly, foreclosure rates have increased during the first quarter of this year. Realty Trac recently reported that more than 900,000 homes of 1 out of every 138 homes in the country has received a foreclosure related notice.  In Arizona, the Associated Press has reported that 1 in every 49 homes has received a foreclosure related notice during the quarter.

These trends are often times because people do not know that there are laws and programs available that can help them keep their homes or even allow them to remove second and third mortgage payments.  Bankruptcy and the Federal Government’s modification programs can work hand in hand to make life manageable again.

Arizona Bankruptcy Courts are part of the 9th Circuit Federal Courts.  Some individuals within the 9th Circuit recently found how bankruptcy and a loan modification can go hand in hand.  Their story might sound familiar to those attempting a modification on their own.  The individuals had initiated loan modification negotiations with Wells Fargo months before they eventually filed for bankruptcy.  Bankruptcy laws do not allow a bank to foreclose or sell someone’s home while they are in bankruptcy without first getting the Court’s permission.

During the modification negotiations the lender directed them to stop making their payments.  When they did stop the Bank had an attorney try and get the Court’s permission to foreclose because they had failed to make payments.  Outside of the bankruptcy they may have been able to foreclose but now they first had to get the Court’s permission.  The Court set a hearing where both sides were heard and the Court decided not to allow the foreclosure to happen but wanted the Bank to follow up with the Loan Modification and let the Court know what was happening.  The hearing was set 2 months later.  The bank didn’t have answers then either.  The judge reset the hearing again for 6 weeks later , then finally for 6 months later.  The Court stated “Nearly one year after it began the process Wells Fargo was still having difficulty determining whether it had a completed loan modification application upon which it could act.”  In re, 20 CBN 594 (Bankr. E.D. Cal. 2010)  During this time the individuals stayed in their home free from the worry that it would be foreclosed upon at anytime because of the bankruptcy laws.  Again, they may have lost the home had they not been in a bankruptcy which did not allow the bank to foreclose.

Many banks are doing their best to assist those who qualify for a loan modification.  But many banks are large and it is difficult for them to make changes that work with new laws or, in this case modification programs.  Loan Modification are not new but the extent to which they are now being utilized is unprecedented.  Federal Programs provide specific requirements that may allow you to keep your home and reduce payments to something more manageable.  If for some reason you don’t qualify now, a bankruptcy may be of help and may stop foreclosures while working with a bank.

For many people, bankruptcy is not the best option, for others modifications may not be the best option either but for some one or both might help them get on top of their finances and allow them to stay in their home.  What is most important it that people know their options and know how current laws and programs can be a tool they use to reign in finances during this difficult time.

For more information, or to register for one of our free bankruptcy seminars, please visit www.mcguiregardner.com or www.freearizonabankruptcyseminar.com.


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