Teresa Renee Dingle

OCR transcription for search; preserved printed pages are authoritative

Case 06-00765-8-RDD Doci18 Filed 08/23/06 Entered 08/23/06 17:10:42 Pageiof5

INFORMATION

AUTHENTICATED
U.S. GOVERNMENT
GPO

SO ORDERED.

SIGNED this 23 day of August, 2006.

/ United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF NORTH CAROLINA

WILSON DIVISION

IN RE:

DEBORAH PRISCILLA ALVEZ

RENEE JOYNER BUNN

KATASHIA LATRICE COOPER

CHARLIE LEE DARDEN, DAISY IRENE DARDEN
MICHAEL RAY DARDEN, TERESA MCCLARY-DARDEN
TERESA RENEE DINGLE

WAYNE EVERETT GASKINS, VIVIAN GASKINS
RECHETTA LATRICE HALL

ROBERT LEE HARRIS, VALERIE KIM HARRIS
TIFFANY CAROL HARRIS

ANGELA MARIE HOWARD

MAGGIE MARIE HUNTER

EUNICE YVETTE JOYNER

JACQULIN DENISE MCCULLERS

JOSEPH EDWARD PARKER

JOSEPH LOYD PIERCE, ELIZABETH GRAY PIERCE

Debtors.

06-00908-8-JRL
06-00943-8-JRL
06-01177-8-JRL
06-01151-8-JRL
06-00680-8-IRL
06-00765-8-JRL
06-01188-8-JRL
06-00701-8-JRL
06-00306-8-JRL
06-00815-8-JRL
06-01002-8-JRL
06-00897-8-JRL
06-00856-8-JRL
06-00791-8-JRL
06-00350-8-JRL
06-01076-8-JRL

Chapter 13

ORDER

These cases are before the court on the trustee’s motions for confirmation. On August 10,

2006, the court conducted a hearing regarding these matters in Wilson, North Carolina.

In the above-named cases, the debtors objected to the trustee’s motions to the extent that

i

Case 06-00765-8-RDD Doci18 Filed 08/23/06 Entered 08/23/06 17:10:42 Page 2of5

confirmation would result in re-vesting of property of the estates in the debtors, pursuant to 11
U.S.C. § 1327(b). Subsequent to the hearing, the debtors orally withdrew this portion of their
objection. The court notes the withdrawal and deems the re-vesting portion of the objection moot.
The court has considered the arguments made at the hearing regarding the calculation of
disposable income for below-median debtors under 11 U.S.C. § 1325(b)(). The debtors asserted
that, for purposes of plan feasibility, the debtors “squeeze” their expenses and live at a level of
subsistence. Thus, the debtors argue that their expenses reported on Schedule J are below the
standard of what is “reasonably necessary” for purposes of calculating disposable income under
§ 1325(b)(2). For this reason, they argue that they should be allowed to increase their expenses when
calculating disposable income. The court rejects this argument. In order for the bankruptcy system
to function, it is necessary for the court and the trustees administering a case to have a truthful
snapshot of a debtor’s expenses at the inception of the case. While there is no rigid test for
determining what is “reasonably necessary,” courts have found that, for purposes of “maintenance
and support,” it is “an amount sufficient to sustain basic needs not related to the debtor’s former
status in society or the lifestyle to which he is accustomed.” In re Stanley, 296 B.R. 402, 408 (Bankr.
E.D. Va. 2002); see In re Jones, 55 B.R. 462, 466 (Bankr. Minn. 1985)(stating debtor should be left
with sufficient money to pay basic living expenses). It is somewhat incongruent to suggest that a
debtor can artificially inflate his actual expenses to reach a hypothetical level deemed “reasonably
necessary,” when the plain meaning of the word “necessary” means “impossible to do without.”

Merriam-Webster Online Dictionary, http://www.m-w.com (last visited Aug. 21, 2006).

While cutting corners may be necessary for some debtors, a debtor is not required to reduce

his expenses to a level that will deprive him of “adequate food, clothing, shelter and other necessities

Case 06-00765-8-RDD Doci18 Filed 08/23/06 Entered 08/23/06 17:10:42 Page 3of5

of life.” In re Collins, No. 03-12750C-7G, 2004 WL 3510107 at *2 (Bankr. M.D.N.C. 2004). Ifa
debtor is forced to live in impoverished conditions in order to show that he can fund a Chapter 13
plan, then he is likely not a good candidate for Chapter 13. A debtor completes Schedule J under
penalty of perjury “by estimating the average monthly expenses of the debtor and the debtor’s
family.” The court finds no authority for allowing a debtor to propose one set of expenses for
purposes of feasibility and another set for purposes of calculating disposable income.

The court, however, does take stock in the debtors’ argument that some reasonably necessary
expenses are found outside Schedule J. A number of courts, including this one, have addressed the
below-median income calculation of disposable income under the new law and have stated that
reasonably necessary expenses are extracted from Schedule J. In re Alexander, 344 B.R. 742, 746
(Bankr. E.D.N.C. 2006)(“To arrive at a disposable income figure for a below-median income debtor,
one takes the debtor’s current monthly income from Part I of Form B22C and subtracts the total
monthly expenses from Schedule J”); In re McGuire, 342 B.R. 608, 611 (Bankr. W.D. Mo.
2006)(“[F]or below median debtors, the income side of the equation is now calculated as a historical
average rather than being based on actual numbers, but the determination of what constitutes
reasonably necessary expenses for purposes of determining projected disposable income to be paid
into the plan is the same post-BAPCPA as it was pre-BAPCPA: it is based on the actual expenses
identified in Schedule J and is subject to the court’s discretion as to the reasonableness of the
claimed expenses.”); see alsoInreFuller, B.R. ,2006 WL 2096484 at *4 (Bankr. S.D. Ill.
2006)(“If her income is lower than the median, she calculates her expenses by subtracting from her
current monthly income the expenses specified in § 1325(b)(2)—in other words, her Schedule J

expenses.”).

ee

Case 06-00765-8-RDD Doci18 Filed 08/23/06 Entered 08/23/06 17:10:42 Page4of5

The statute itself, however, does not limit reasonably necessary expenses to those listed on
Schedule J. 11 U.S.C. § 1325(b)(2). Asa result of debtors’ attorneys and Chapter 13 trustees in this
district gaining more familiarity with the new law, they are acknowledging that other expenses
should be taken into consideration when calculating disposable income for below-median debtors.
The court finds that, in addition to the expenses set forth in Schedule J, the payroll deductions set
forth at line 4 of Schedule I should also be considered when determining the reasonably necessary
expenses of the debtor. Such expenses consist of payroll taxes, social security, insurance, union
dues, and other amounts deducted from a debtor’s pay check by his employer.

Prior to BAPCPA, a debtor dedicated his disposable income to plan payments for the benefit
of all creditors. In re Tucker, 220 B.R. 359, 361 (Bankr. W.D. Tenn. 1998). Now, the debtor’s
projected disposable income is used to pay unsecured creditors only. 11 U.S.C. § 1325(b)(1)(B).
Accordingly, when calculating disposable income under BAPCPA, the below-median debtor may
deduct the monthly amount needed to pay the trustee to meet the secured, priority, and

administrative obligations of his plan as a reasonably necessary expense. That amount should be

listed at line 17 of Schedule J, or in any other fashion that satisfies the Chapter 13 trustee.

rr

Case 06-00765-8-RDD Doci18 Filed 08/23/06 Entered 08/23/06 17:10:42 Page5of5

Aside from these modifications regarding the calculation of disposable income for below-
median debtors, any plan to be confirmed in these cases must be in accordance with In re Alexander,

344 B.R. 742 (Bankr. E.D.N.C. 2006)."

“END OF DOCUMENT”

! At the hearing, the debtors’ attorney discussed related issues, including the need for
early termination language in a plan where there is no projected disposable income and thus no
applicable commitment period. In addition, the trustees appearing at the hearing inquired
regarding whom should bear the burden of monitoring the early termination of these cases so that
debtors do not pay more than required. The court urges further discussion of these issues. In the
event no resolution can be reached, the court will entertain them in the future upon request.

5