William Joseph Wilmer

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
William Joseph Wilmer
04-19073
Order Denying [11-1] Chapter 13 Plan .
Received on: 2005-04-18 14:56:10.000
2005-04-18 00:00:00.000
2005-04-19 00:00:00.000
Patti Hennessy
Case 04-19073-m7 Doc 29 Filed 04/18/05 Entered 04/19/05 15:21:00 Page 1 of 4

1Debtor filed amended Schedules I and J on April 14, 2005. Debtor’s amended Schedule I
continues to reflect a payroll deduction for retirement and loan in the amount of $824.93 per month.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: WILLIAM WILMER, No. 13-04-19073 MA
Debtor.
ORDER DENYING CONFIRMATION OF DEBTOR’S CHAPTER 13 PLAN
THIS MATTER is before the Court on confirmation of the Debtor’s chapter 13 plan of
reorganization. The Chapter 13 Trustee filed an objection to the Debtor’s proposed plan, asserting,
among other things, that the plan does not meet the disposable income test. See Chapter 13 Trustee’s
Objection to Confirmation of Debtor’s Plan (Docket # 17). The Court held a final hearing at which
testimony was presented on April 14, 2005. Based on the evidence presented at the final hearing and
the Debtor’s statements and schedules, the Court finds that the plan as proposed cannot be confirmed
because it fails to meet the disposable income test. Confirmation will, therefore, be denied. In
reaching this determination, the Court FINDS:
1. Debtor makes voluntary contributions of $119.92 per pay period to a retirement savings
account, known as the Thrift Savings Plan (TSP). See Exhibit 1 - Civilian Leave and Earnings
Statements.
2. Debtor gets paid every two weeks. Debtor’s Schedule I reflects a payroll deduction for
“Retirement and loan” in the amount of $824.93 per month.1
3. Debtor’s plan proposes to pay $450.00 per month for thirty-six months. The proposed
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2Debtor has scheduled unsecured non-priority claims in the amount of $40,528.26. Debtor’s
plan base is $16,200.00 ($450.00 X 36 mos). Debtor’s plan proposes to cure pre-petition arrears on
two mortgages, totaling $17,120.72. At the confirmation hearing Debtor proposed to address this
feasibility problem by extending the length of his plan. Even if the plan were extended to sixty months,
the plan will not pay 100% of scheduled unsecured claims.
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plan will not pay unsecured creditors in full.2
4. If the trustee objects to a debtor’s proposed chapter 13 plan, and the plan does not
propose to pay unsecured creditors the full value of their claims, the debtor must demonstrate that he
has committed all of his disposable income to plan payments for a three year period. 11 U.S.C. §
1325(b)(1). Specifically, pursuant to 11 U.S.C. § 1325(b)(1)(B), a plan is not confirmable unless:
the plan provides that all of the debtor’s projected disposable income to be received in
the three-year period beginning on the date the first payment is due under the plan will
be applied to make payments under the plan.
11 U.S.C. § 1325(b)(1)(B).
5. Voluntary contributions to a retirement savings plan are part of a debtor’s disposable
income. In re Bayless, 264 B.R. 719, 721 (Bankr.W.D.Okla. 1999) (“[C]ontributions to a voluntary
retirement program . . . are part of Debtors’ disposable income.”); In re Anes, 195 F.3d 177, 180-
181 (3rd Cir. 1999) (finding that voluntary contributions to retirement plans are not reasonably
necessary for a debtor’s maintenance or support, so that such payments may only be made after all
unsecured debts are satisfied.).
6. Debtor’s plan cannot be confirmed as proposed because he is not devoting all of his
disposable income to plan payments as required under 11 U.S.C. § 1325(b)(1)(B).
WHEREFORE, IT IS HEREBY ORDERED, that confirmation of the Debtors’ proposed
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chapter 13 plan is DENIED. In light of this ruling, the Court need not consider other objections made
by the Chapter 13 Trustee to the Debtor’s proposed plan.
___________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
Michael K. Daniels
Attorney for Debtor
PO Box 1640
Albuquerque, NM 87103 -1640
Karen Howden Weaver
Attorney for Chase Manhattan Mortgage Corporation
3803 Atrisco Dr NW Ste A
Albuquerque, NM 87120 -4958
Karen Bradley
Attorney for Homecomings Financial Network
PO Box 3509
Albuquerque, NM 87190 -3509
Kelley L. Skehen
Chapter 13 Trustee
625 Silver Avenue SW, Suite 350
Albuquerque, NM 87102 -3111
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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