Satisfy Your Credit Counseling Requirement Before Filing Bankruptcy
1 Before Filing

1 After Filing
Personal Financial Management Instruction

Whitney v. Drummond (In re Whitney), Nos. 04-62483-13, 07-35-H-CCL, 2008 WL 227868, at *3 (D. Mont. Jan. 28, 2008) (unpublished) (Lovell) (To shorten confirmed 60-month plan by prepayment, debtor must file motion for modification. “‘[T]here is nothing inequitable or contrary to the Bankruptcy Code, in requiring that debtors go through the plan modification process in order to pay their chapter 13 plans off early without paying allowed creditor claims in full.’”).

In re Tozer, 392 B.R. 758 (Bankr. W.D. Wis. 2008) (Martin) (Debtor’s attorney is holder of allowed unsecured claim and has standing to modify confirmed plan to pay attorney’s administrative expense claim.).

In re Gresham, No. 06-60027-MHM, 2008 WL 3484318 (Bankr. N.D. Ga. Aug. 12, 2008) (Murphy) (Since debtor can amend petition at any time under FED. R. BANKR. P. 1009, postconfirmation amendment to add creditor and to modify plan is granted absent timely objection under § 1329(b).).

See Also: Chapter 7 Bankruptcy

In re Sanchez, 394 B.R. 574 (Bankr. D. Colo. 2008) (Brooks) (Rejecting Money v. Kagenveama (In re Kagenveama), 527 F.3d 990 (9th Cir.), amended, 541 F.3d 868 (9th Cir. 2008), Chapter 13 debtors must propose three-year or five-year plan without regard to whether there is any disposable income; projected disposable income is forward-looking concept that is inconsistent with “snapshot” adopted by Ninth Circuit in Kagenveama.). Accord In re Pfeiler, 395 B.R. 464 (Bankr. D. Colo. 2008) (Brooks).

In re Roberts, No. 07-15653DWS, 2008 WL 4279549, at *3 (Bankr. E.D. Pa. Sept. 17, 2008) (Sigmund) (Not necessary to decide whether projected disposable income test is “forward looking” or a mathematical formula because disposable income on Form B22C would be negative even if expense deduction is disallowed for pension loan repayments that will complete during second year after confirmation.).

See Also: Bankruptcy New York

In re Pearl, 394 B.R. 309, 314 (Bankr. N.D.N.Y. 2008) (Gerling) (Debtor with CMI greater than applicable median family income is entitled to Local Standards transportation ownership expense for car that is not subject to debt. “This Court concurs with the view that deferring to the approach taken by the IRS, . . . would to a certain extent enable it to become ‘a rule-making body for bankruptcy law,’ thereby assigning a legislative function to an agency. . . . [F]or purposes of the Bankruptcy Code, the Local Standard amounts are fixed allowances, rather than caps, and are applicable to the Debtors in this case, despite the fact that there is no lien on their second vehicle. This comports with the intention of Congress to eliminate the discretion of the courts[.]”).

In re Lane, 394 B.R. 248 (Bankr. D. Mass. 2008) (Hillman) (Citing In re Young, 392 B.R. 6 (Bankr. D. Mass. 2008), debtor with CMI greater than applicable median family income is allowed Local Standards transportation ownership expense for car that is not subject to lien or lease.).
See Also: Chapter 7 Bankruptcy

In re Lucio, No. 04-81962-G3-13, 2008 WL 5479110 (Bankr. S.D. Tex. Nov. 21, 2008) (Letitia Clark) (Mortgage creditor that participated in confirmation was aware of, and bound by, local Chapter 13 procedures for administration of home mortgages that required creditor to give notice of any payment adjustments to debtor, debtor’s counsel and trustee; failure to give required notice limits reimbursement for forced-placed insurance to same amount as prior year,).

In re Kuhasz, No. 07-20282, 2008 WL 5539788, at *4 (Bankr. D. Kan. Nov. 19, 2008) (Somers) (Debtors are bound by confirmation of plan that pays car lender in full and can’t use claim objection or plan modification to delete negative equity from secured claim. “[P]ost-confirmation change in applicable bankruptcy law is not sufficient to warrant a revocation or modification ofthe terms ofa confirmed and operating Chapter 13 plan.”).

In re Povey, No. 07-80076, 2008 WL 1376271, at *5, *6 (Bankr. E.D. Okla. Apr. 9, 2008) (Cornish) (Failure to attach documents proving assignment of claim is fatal to allowance. Creditor “failed to comply with Bankruptcy Rule 3001 (e) [by] not attach[ing] the writings that the claims were based on.” Trustee asserted valid substantive objection since “[t]he assignment documents fail to establish that the original debts were transferred to Roundup. The appendices and schedules referenced in the documents were not provided, and therefore there is no way to determine that the original debts were part of the assignment documents.” Section 3001(e)(l) “provides for who may file a claim under… circumstances [involving claims transferred before proof of claim is filed], not what evidence or documentary support is required to prove its ownership of the claim.”).

See Also: Bankruptcy Lawyers New York

In re Tompkins, 391 B.R. 560,563-64 (Bankr. S.D.N.Y. 2008) (Morris) (Reaffirming//? rePinti, 363 B.R. 369 (Bankr. S.D.N.Y. 2007), and rejecting contrary decisions from Fourth, Sixth, Seventh, Eighth and Tenth Circuits, 910-day PMSI car can be surrendered in full satisfaction because bankruptcy law, not state law, determines there is no unsecured deficiency claim when debt is fully secured under hanging sentence. “This Court’s decision in Pinti addressed and rejected arguments that the right to an unsecured deficiency claim is determined by state law, as opposed to the Bankruptcy Code…. Although other courts have disagreed, they have done so based upon arguments that this Court considered and rejected in Pinti. . . . [T]he ‘hanging paragraph’ appears to be a ‘qualifying or contrary provision’ to the general principles set forth in [Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., 549 U.S. 443,127 S. Ct. 1199,167 L. Ed. 2d 178 (2007),] and [Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979)].”).

Schultz v. United States, 529 F.3d 343, 350-53 (6th Cir. 2008) (Ryan, Siler, Cole) (That disposable income calculation in § 1325(b)(3) uses “means test” which includes consideration of median income based on state and county in which debtor resides does not render BAPCPA nonuniform for purposes of Article 1, § 8, of the Constitution. “[The Supreme Court] . . . has consistently described the Bankruptcy Clause’s uniformity requirement as ‘geographical, and not personal.’ . . . [I]t allows different effects in various states due to dissimilarities in state law, so long as the federal law applies uniformly among classes of debtors. . . . [W]e conclude that the BAPCPA is a constitutionally uniform law. Congress is allowed to distinguish among classes of debtors, and to treat categories of debtors differently, whether it be through the incorporation of varying state laws …. [T]he BAPCPA is uniform in form: all debtors whose income is above the median family income are treated alike, as are all debtors whose income falls below. The resulting differences based on the state in which the debtor resides are analytically indistinguishable from the differences resulting from the incorporation of various state laws… . Congress may permissibly address regional variations . . . based on either state laws or federal statistics.”).

In re Namie, 395 B.R. 594, 597-98 (Bankr. D.S.C. 2008) (Waites) (Expenses allowed by § 1325(b)(3) for debtor with CMI greater than applicable median family income are subject to “reasonably necessary” standard; $5,376.54 per month to maintain and cure default with respect to home mortgage is not reasonable or necessary. “[Though 11 U.S.C § 1325(b)(3) allows for the categorical deduction of certain actual expenses, those expenses must be ‘reasonably necessary’ regardless of whether Debtor is above the median income…. Debtor bears the ultimate burden of proving that the claimed ‘actual expense,’ as allowed by the means test, is actual, reasonable, and necessary…. Debtor has offered no convincing evidence that the proposed housing expense is reasonably necessary for a family of two …. Debtor’s housing expense is more than five times that allowed by the I.R.S. and is not reasonable or necessary considering Debtor’s family size, income level, location, and lack of other special needs.”).

See Also: Bankruptcy Laywers Austin

Satisfy Your Credit Counseling Requirement Before Filing Bankruptcy
1 Before Filing

1 After Filing
Personal Financial Management Instruction

Whitney v. Drummond (In re Whitney), Nos. 04-62483-13, 07-35-H-CCL, 2008 WL 227868, at *3 (D. Mont. Jan. 28, 2008) (unpublished) (Lovell) (To shorten confirmed 60-month plan by prepayment, debtor must file motion for modification. “‘[T]here is nothing inequitable or contrary to the Bankruptcy Code, in requiring that debtors go through the plan modification process in order to pay their chapter 13 plans off early without paying allowed creditor claims in full.’”).

In re Tozer, 392 B.R. 758 (Bankr. W.D. Wis. 2008) (Martin) (Debtor’s attorney is holder of allowed unsecured claim and has standing to modify confirmed plan to pay attorney’s administrative expense claim.).

In re Gresham, No. 06-60027-MHM, 2008 WL 3484318 (Bankr. N.D. Ga. Aug. 12, 2008) (Murphy) (Since debtor can amend petition at any time under FED. R. BANKR. P. 1009, postconfirmation amendment to add creditor and to modify plan is granted absent timely objection under § 1329(b).).

See Also: Chapter 7 Bankruptcy

In re Sanchez, 394 B.R. 574 (Bankr. D. Colo. 2008) (Brooks) (Rejecting Money v. Kagenveama (In re Kagenveama), 527 F.3d 990 (9th Cir.), amended, 541 F.3d 868 (9th Cir. 2008), Chapter 13 debtors must propose three-year or five-year plan without regard to whether there is any disposable income; projected disposable income is forward-looking concept that is inconsistent with “snapshot” adopted by Ninth Circuit in Kagenveama.). Accord In re Pfeiler, 395 B.R. 464 (Bankr. D. Colo. 2008) (Brooks).

In re Roberts, No. 07-15653DWS, 2008 WL 4279549, at *3 (Bankr. E.D. Pa. Sept. 17, 2008) (Sigmund) (Not necessary to decide whether projected disposable income test is “forward looking” or a mathematical formula because disposable income on Form B22C would be negative even if expense deduction is disallowed for pension loan repayments that will complete during second year after confirmation.).

See Also: Bankruptcy New York

In re Pearl, 394 B.R. 309, 314 (Bankr. N.D.N.Y. 2008) (Gerling) (Debtor with CMI greater than applicable median family income is entitled to Local Standards transportation ownership expense for car that is not subject to debt. “This Court concurs with the view that deferring to the approach taken by the IRS, . . . would to a certain extent enable it to become ‘a rule-making body for bankruptcy law,’ thereby assigning a legislative function to an agency. . . . [F]or purposes of the Bankruptcy Code, the Local Standard amounts are fixed allowances, rather than caps, and are applicable to the Debtors in this case, despite the fact that there is no lien on their second vehicle. This comports with the intention of Congress to eliminate the discretion of the courts[.]”).

In re Lane, 394 B.R. 248 (Bankr. D. Mass. 2008) (Hillman) (Citing In re Young, 392 B.R. 6 (Bankr. D. Mass. 2008), debtor with CMI greater than applicable median family income is allowed Local Standards transportation ownership expense for car that is not subject to lien or lease.).
See Also: Chapter 7 Bankruptcy

In re Lucio, No. 04-81962-G3-13, 2008 WL 5479110 (Bankr. S.D. Tex. Nov. 21, 2008) (Letitia Clark) (Mortgage creditor that participated in confirmation was aware of, and bound by, local Chapter 13 procedures for administration of home mortgages that required creditor to give notice of any payment adjustments to debtor, debtor’s counsel and trustee; failure to give required notice limits reimbursement for forced-placed insurance to same amount as prior year,).

In re Kuhasz, No. 07-20282, 2008 WL 5539788, at *4 (Bankr. D. Kan. Nov. 19, 2008) (Somers) (Debtors are bound by confirmation of plan that pays car lender in full and can’t use claim objection or plan modification to delete negative equity from secured claim. “[P]ost-confirmation change in applicable bankruptcy law is not sufficient to warrant a revocation or modification ofthe terms ofa confirmed and operating Chapter 13 plan.”).

In re Povey, No. 07-80076, 2008 WL 1376271, at *5, *6 (Bankr. E.D. Okla. Apr. 9, 2008) (Cornish) (Failure to attach documents proving assignment of claim is fatal to allowance. Creditor “failed to comply with Bankruptcy Rule 3001 (e) [by] not attach[ing] the writings that the claims were based on.” Trustee asserted valid substantive objection since “[t]he assignment documents fail to establish that the original debts were transferred to Roundup. The appendices and schedules referenced in the documents were not provided, and therefore there is no way to determine that the original debts were part of the assignment documents.” Section 3001(e)(l) “provides for who may file a claim under… circumstances [involving claims transferred before proof of claim is filed], not what evidence or documentary support is required to prove its ownership of the claim.”).

See Also: Bankruptcy Lawyers New York

In re Tompkins, 391 B.R. 560,563-64 (Bankr. S.D.N.Y. 2008) (Morris) (Reaffirming//? rePinti, 363 B.R. 369 (Bankr. S.D.N.Y. 2007), and rejecting contrary decisions from Fourth, Sixth, Seventh, Eighth and Tenth Circuits, 910-day PMSI car can be surrendered in full satisfaction because bankruptcy law, not state law, determines there is no unsecured deficiency claim when debt is fully secured under hanging sentence. “This Court’s decision in Pinti addressed and rejected arguments that the right to an unsecured deficiency claim is determined by state law, as opposed to the Bankruptcy Code…. Although other courts have disagreed, they have done so based upon arguments that this Court considered and rejected in Pinti. . . . [T]he ‘hanging paragraph’ appears to be a ‘qualifying or contrary provision’ to the general principles set forth in [Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., 549 U.S. 443,127 S. Ct. 1199,167 L. Ed. 2d 178 (2007),] and [Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979)].”).

Schultz v. United States, 529 F.3d 343, 350-53 (6th Cir. 2008) (Ryan, Siler, Cole) (That disposable income calculation in § 1325(b)(3) uses “means test” which includes consideration of median income based on state and county in which debtor resides does not render BAPCPA nonuniform for purposes of Article 1, § 8, of the Constitution. “[The Supreme Court] . . . has consistently described the Bankruptcy Clause’s uniformity requirement as ‘geographical, and not personal.’ . . . [I]t allows different effects in various states due to dissimilarities in state law, so long as the federal law applies uniformly among classes of debtors. . . . [W]e conclude that the BAPCPA is a constitutionally uniform law. Congress is allowed to distinguish among classes of debtors, and to treat categories of debtors differently, whether it be through the incorporation of varying state laws …. [T]he BAPCPA is uniform in form: all debtors whose income is above the median family income are treated alike, as are all debtors whose income falls below. The resulting differences based on the state in which the debtor resides are analytically indistinguishable from the differences resulting from the incorporation of various state laws… . Congress may permissibly address regional variations . . . based on either state laws or federal statistics.”).

In re Namie, 395 B.R. 594, 597-98 (Bankr. D.S.C. 2008) (Waites) (Expenses allowed by § 1325(b)(3) for debtor with CMI greater than applicable median family income are subject to “reasonably necessary” standard; $5,376.54 per month to maintain and cure default with respect to home mortgage is not reasonable or necessary. “[Though 11 U.S.C § 1325(b)(3) allows for the categorical deduction of certain actual expenses, those expenses must be ‘reasonably necessary’ regardless of whether Debtor is above the median income…. Debtor bears the ultimate burden of proving that the claimed ‘actual expense,’ as allowed by the means test, is actual, reasonable, and necessary…. Debtor has offered no convincing evidence that the proposed housing expense is reasonably necessary for a family of two …. Debtor’s housing expense is more than five times that allowed by the I.R.S. and is not reasonable or necessary considering Debtor’s family size, income level, location, and lack of other special needs.”).

See Also: Bankruptcy Laywers Austin