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In re Lasota, 351 B.R. 56 (Bankr. W.D.N.Y., 2006) (Kaplan, Judge)

In re Lasota, 351 B.R. 56 (Bankr. W.D.N.Y., 2006) (Kaplan, Judge)
Resolving a question raised by §1325
Debtors had $1200 monthly surplus over and above what Form 22C determined as “current disposable income.” That surplus is seen only on Schedules I and J. The Debtors wish to put that excess in the bank to build their future, while discharging 61% of their $16,000 in credit card debt. Chapter 13 Trustee argues that “accumulation of wealth” is not the purpose of Chapter 13 and that the ” ‘projected’ disposable income” and “good faith” tests, independently or in combination with each other, require a 100% plan.

The Court defers to the recommendation of the Trustee as the “representative of the estate” under 11 U.S.C. §§ 323(a) and 1302. The court based its ruling on the reasoning asserted in the article by Kevin R. Anderson, Disposable Income v. Projected Disposable Income: Identical Twins or Distant Relatives, Nat’l Assn’ of Chap. 13 Trs. Q., Jul./Aug./Sept.2006, which held that a court should combine a good faith test with disposable income to determine whether a less than 100% plan should be confirmed.

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In re Quarterman, 342 B.R. 647 (Bankr.M.D. Fla., 2006) (Proctor, Judge)
Resolving a question raised by §1325
Amended Code requires “that all of the debtor’s projected disposable income … be applied to make payments… under the plan,” irrespective of the amount of the debtor’s current monthly income or the methodology for determining expenses. If debtor has monthly income above the state median then “amounts reasonably necessary to be expended” are determined according to the amounts set forth in §707(b). If a debtor has current monthly income less than the state median then the “amounts reasonably necessary to be expended” are determined under §1325(b)(2)(A) and (B). In neither case do BAPCPA changes obviate the requirement that a debtor use all their disposable income to fund the plan.

A debtor’s spouse’s income shall be included in the debtor’s current monthly income to the extent that it is paid “on a regular basis for household expenses of the debtor or debtor’s dependents.” Based on the explicit language of § 101(10A) current monthly income does not include all of the income of the non-debtor spouse but rather only those amounts expended on a regular basis for household expenses. If income is not (1) expended regularly (2) on household, expenses, then it is not included in the debtor’s current monthly income.

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In re Tulper, 345 B.R. 322 (Bankr.Colo., 2006) (Brooks, Bankruptcy Judge)
Resolving a question raised by §109(h)(4)
The Debtors seek a waiver of the requirement that they obtain credit counseling prior to filing bankruptcy and file a certificate regarding same in accordance with 11 U.S.C. 109(h)(4) of the Bankruptcy Abuse Prevention and Consumer Protection Act.

Mrs. Tulper testified that she suffered from heart problems, extensive tremors, severe asthma, a bad lung, arthritis, a disintegrated spine (2 discs missing), and a plate in her right ankle. Her combined conditions made her wheelchair-bound. Moreover, she is taking approximately seventeen prescribed medications per day to manage her tremors, pain, heart condition.

Mrs. Tulper testified that she did not own or otherwise have access to a computer, and had no computer skills. She stated that her mobility was severely limited by her age, physical condition, and dependence upon an oxygen compressor/ventilator.

Debtor Leon Tulper testified that he was 97% deaf (but less so with hearing augmentation) and received disability payments from the Department of Veterans Affairs stemming from service in World War II. He also had a 40% disability with respect to use of his hands and feet.

If a debtor goes to credit counseling and, because of a significant impairment, cannot participate in the credit counseling such that he or she can understand what is conveyed during the credit counseling session, so as to be able to have the “opportunity to learn about the consequences of bankruptcy,” then the prepetition credit counseling becomes meaningless. It is without purpose and utility. Here, these Debtors, because of their physical condition could not meaningfully participate in the prepetition credit counseling.

Protection Act of 2005 (“BAPCPA”).1 For the reasons stated on the record in open court, and for the reasons set forth more fully herein, the Court GRANTS Debtor’s Waiver Motion.

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