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Topics:

Topic #54:

Keywords: Projected disposable income . CMI . current monthly income .

Chapter 13: Debtor may request alternate six month measuring period for CMI if result would be more accurate

  • Topic Overview
  • 5 Cases on This Topic
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Means Test > Income

Chapter 13: Debtor may request alternate six month measuring period for CMI if result would be more accurate

5 Cases , IssueID 54

Topic Description:

This odd procedural chicanery is made possible by section 101 which says that if you don't file a Schedule I, the judge can set the applicable date for measuring CMI.

There is some question whether the debtor can make a motion to do this. Some cases seem to say yes.

This line of cases has been viewed as an alternative to the either or debate over whether to use Form 22C or Schedules I and J in determining "projected disposable income"

Lines of Cases:

A:

Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I

Topic Background / Overview:

Here's the code language.
Subsection (ii) is the magic section, but it requires the debtor to "not file the schedule of current income required by section 521(a)(1)(B)(ii)" -- that is Schedule I.

(10A) The term `current monthly income'—
(A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor's spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on—
(i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedules of current income required by section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii)(.)
  • Type A = Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I
  • Type E = "Everything Else"
  • Cases for Zip
  • All Cases By Date
  • Cases A - Z

Cases for Zip , California Northern District Bankruptcy Court

Ninth Circuit Cases

No Ninth Circuit cases in database on this topic

Other Circuits

• In re Garcia

Bankr.SD Florida - Case No. 09-28603-BKC-RBR. - 2010-01-21 - ,

Google ID#: 8429850380489253613
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

Debtor brought a motion to excuse filing of schedule I and to set an alternative date for calculating current monthly income. Court agreed:
"11 U.S.C. § 101(10A) defines "current monthly income" as the average monthly income from all sources that the debtor receives, derived during a six month period ending on either: (i) the last day of the calendar month preceding the petition date if the debtor files a schedule of current income, or (ii) the date on which the court determines current income "for purposes of this title" if the debtor does not file a schedule of current income. 11 U.S.C. § 521 (a) states that the debtor shall file a schedule of current income and expenditures unless the court orders otherwise. Read together, these provisions potentially allow a debtor to not file a schedule of current income (otherwise known as Schedule I) and derive CMI from a time period determined by the court. A debtor normally pursues this option when the CMI determined from the six month period preceding the petition date does not provide an accurate reflection of the debtor's current income. In re Dunford, 408 B.R. 489, 493 (Bankr. N.D. Ill. 2009)."

• In re Dunford

Bankr.N.D.Ill - 408 B.R. 489 - 2009-07-21 - 13 , Above

Google ID#: 2338494725230386116
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

totality of circumstances support granting debtors motion to be excused from filing Schedule I, and reset the applicable six month period for calculating current monthly income.

• In re Distler

ED North Carolina - Case No. 09-00707-8-RDD - 2009-06-11 - 13 ,

Google ID#: 14948114295147198428
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

ORDER EXCUSING DEBTORS FROM FILING REQUIRED SCHEDULE "I" AND SETTING ALTERNATIVE DATE FOR DETERMINING CURRENT MONTHLY INCOME

• In re Hoff

Bankr.E.D.North Carolina - 402 B.R. 683 - 2009-03-23 - ,

Google ID#: 10251014957401510436
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

Debtor brought a motion to excuse filing of schedule I and to set an alternative date for calculating current monthly income. Court agreed.

• In re Beasley

Bankr.C.D.Ill. - 342 B.R. 280 - 2006-05-08 - 13 , Below

Google ID#: 2494757559517909471
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

"current monthly income," which is defined at § 101(10A):

(10A) The term `current monthly income'—
(A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor's spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on—
(i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedules of current income required by section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii)(.)

• In re Garcia

Bankr.SD Florida - Case No. 09-28603-BKC-RBR. - 2010-01-21 - ,

Google ID#: 8429850380489253613
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

Debtor brought a motion to excuse filing of schedule I and to set an alternative date for calculating current monthly income. Court agreed:
"11 U.S.C. § 101(10A) defines "current monthly income" as the average monthly income from all sources that the debtor receives, derived during a six month period ending on either: (i) the last day of the calendar month preceding the petition date if the debtor files a schedule of current income, or (ii) the date on which the court determines current income "for purposes of this title" if the debtor does not file a schedule of current income. 11 U.S.C. § 521 (a) states that the debtor shall file a schedule of current income and expenditures unless the court orders otherwise. Read together, these provisions potentially allow a debtor to not file a schedule of current income (otherwise known as Schedule I) and derive CMI from a time period determined by the court. A debtor normally pursues this option when the CMI determined from the six month period preceding the petition date does not provide an accurate reflection of the debtor's current income. In re Dunford, 408 B.R. 489, 493 (Bankr. N.D. Ill. 2009)."

• In re Dunford

Bankr.N.D.Ill - 408 B.R. 489 - 2009-07-21 - 13 , Above

Google ID#: 2338494725230386116
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

totality of circumstances support granting debtors motion to be excused from filing Schedule I, and reset the applicable six month period for calculating current monthly income.

• In re Distler

ED North Carolina - Case No. 09-00707-8-RDD - 2009-06-11 - 13 ,

Google ID#: 14948114295147198428
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

ORDER EXCUSING DEBTORS FROM FILING REQUIRED SCHEDULE "I" AND SETTING ALTERNATIVE DATE FOR DETERMINING CURRENT MONTHLY INCOME

• In re Hoff

Bankr.E.D.North Carolina - 402 B.R. 683 - 2009-03-23 - ,

Google ID#: 10251014957401510436
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

Debtor brought a motion to excuse filing of schedule I and to set an alternative date for calculating current monthly income. Court agreed.

• In re Beasley

Bankr.C.D.Ill. - 342 B.R. 280 - 2006-05-08 - 13 , Below

Google ID#: 2494757559517909471
(Type A : Allows Debtor to request a resetting of the six month period if debtor does not file Schedule I )

"current monthly income," which is defined at § 101(10A):

(10A) The term `current monthly income'—
(A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor's spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on—
(i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedules of current income required by section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii)(.)

All Cases A to Z

  • In re Beasley, 342 B.R. 280 , (Bankr.C.D.Ill. ) 2006-05-08, #2494757559517909471
  • In re Distler, Case No. 09-00707-8-RDD , (ED North Carolina ) 2009-06-11, #14948114295147198428
  • In re Dunford, 408 B.R. 489 , (Bankr.N.D.Ill ) 2009-07-21, #2338494725230386116
  • In re Garcia, Case No. 09-28603-BKC-RBR. , (Bankr.SD Florida ) 2010-01-21, #8429850380489253613
  • In re Hoff, 402 B.R. 683 , (Bankr.E.D.North Carolina ) 2009-03-23, #10251014957401510436

FAQ/Help:

How to use case law (it can be tricky)

If you're not familiar with what "case law" is, and how to use it, check out Chapter 7 of Nolo's LegalResearch: How to Find and Understand the Law for a guide to how to read through a case to get the parts that matter.

Also, you need to be familiar with the concept of "jurisdiction." Here are some helpful links:

When you read a case, check to make sure that the case's decision applies to your local district. Do this by looking at which court has decided the case -- either the U.S. Supreme Court, a court of appeal (listed here in large type), or a district court (listed in small type).  Your local district court judge is not bound to follow the opinion of judges from other district courts, but often they look to these cases for advice. Your local district, however, is bound  to follow decisions in cases from it governing circuit court. You'll see fairly few Supreme Court case here, but those cases are also binding on all districts."

Are these all the bankruptcy cases there are?

NO! NO! NO! This is a start for your research. New cases are constantly being decided. I update this when I have time. This is only a fraction of the actual published opinions out there. Dozens of cases are handed down nationwide every week. I catalog interesting ones when I have time. They are meant to serve as a starting point for your research -- NOT as a comprehensive listing of the current state of the law.

 

DISCLAIMER. By using this database you acknowledge and agree to the following:

This database does not contain every relevant case in every district on the topics covered; there are high priced services for that. This is free. It is offered to the public "as is" as an adjunct to the Nolo books, How to File Chapter 7 Bankruptcy, and Chapter 13 Bankruptcy: Keep Your Property and Repay Your Debts Over Time (10th Edition, 2010): which I co-author with attorney Stephen Elias.

This database is updated as time permits. Do not assume that it has the latest case in your district. We are still filling holes in the database -- and will always be. Use it as a place to start your reasearch, rather than the final answer to your question.

Some of these issues involve the discretion of the judge which can vary from judge to judge. So, even if you find a case just like yours where a judge went your way, as they say in the car biz, "your mileage may vary..."

If you're not familiar with what "case law" is, and how to use it, check out Chapter 7 of Nolo's LegalResearch: How to Find and Understand the Law for a guide to how to read through a case to get the parts that matter.

For more help, click the "?" tab.

 


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