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When do projected or anticipated changes in income become speculative? Are all speculative increases in income excluded from projected and anticipated income? One court suggested this solution to managing speculative wage increases: if the debtor receives wage increases, the plan may be modified on motion of the trustee or an allowed unsecured claim holder. Courts that have required the debtor to project future wage increases, no matter how uncertain, do not offer a balancing methodology for projecting decreases in income and do not suggest how the debtor will project future increases in expenses.

The court in In re Krull 88 arbitrarily required the debtor to commit 50 percent of future wage increases to funding the plan. If reasonable and necessary expenses increase as fast or faster than future wages, the debtor cannot pay more to unsecured claim holders based on any predetermined formula. Changes in expenses have to be included in these reports, else it would not be possible to periodically recalculate disposable income.

The volume of paper would be staggering. The U. Agreeing with the Fifth Circuit, the U. Court of Appeals for the Ninth Circuit has rejected the argument that projected disposable income means whatever income net of expenses turns out to be. In Anderson v. The debtors in Anderson refused to sign the certification and appealed the resulting denial of confirmation. It has also been held that tax refunds after three years after confirmation need not be committed to funding the plan to satisfy the disposable income test.

On the other hand, income tax refunds are difficult to project at confirmation because the existence or amount of a tax refund is often unknowable even for the current tax year, much less for three to five tax years into the future.


Court of Appeals for the Sixth Circuit adopted an ambiguous rule of inclusion of postconfirmation tax refunds in projected disposable income. In Freeman v. Schulman In re Freeman , the confirmed plan paid the trustee all income tax refunds during the three-year life of the plan. The Sixth Circuit agreed with the trustee:. But then, without offering rules for decision in the next case, the Sixth Circuit reopened the question whether tax refunds are necessarily included in projected disposable income:. Gratuitous contributions from family and friends have been excluded from projected disposable income.

There is nothing in the statute to prohibit a finding that gratuitous contributions are included in projected disposable income. Trustees and creditors, trying to squeeze out the maximum projected income, sometimes complain that the debtor is not earning as much as the debtor can. These cases quickly become painful exercises as the objecting creditor tries to prove that the debtor should be earning more money and the debtor is cast in the role of proving as little capacity to earn as possible.

Cosby In re Solomon , 67 F. Killough In re Killough , F. Idaho Debtors failed to account for family income from part-time work as a Shakley products distributor. See, e. Contra McDonald v. Burgie In re Burgie , B. The test is whether the asset in question is an anticipated stream of payments.

If it is a stream of payments, the payments must be included in projected income. If the asset is not a stream of payments, it is not included. Hull In re Hull , B. Therefore, the status of the property, whether property of the estate,. In this case, the corpus of the Pebsco Plan, which is an employer-provided deferred compensation plan,. Once revenue is received from the plan administrator by the debtor, the case law is clear that such revenue should be included in the calculation of disposable income.

Idaho Debtor is entitled to insurance proceeds in excess of balance of allowed secured claim at destruction of car after confirmation. Had the Debtors simply traded the Ford Explorer for a similar vehicle, the Trustee would not be contending that the new vehicle was income. The fact that in this case the vehicle was forcibly converted into cash does not change this result. If a debtor meets all the requirements of sections a and b , the debtor may keep all prepetition assets whether exempt or nonexempt.

Plan was confirmed in Codebtor passed away in Citing In re Stones, B.

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Drummond In re Hagel , B. She will not be required to invade the Proceeds to fund the Plan. Accord McDonald v. Accord In re Baines, B. McRoberts In re Watters , B. Koch In re Koch , F. Claude In re Claude , B. Thus, the Proceeds are only exempt to the extent reasonably necessary for the support of the Debtors or their dependents, a factual determination which must be resolved by an evidentiary hearing.

But see In re Ferretti, B. In re Kerr, B. Accord In re Martinez, B. Brown In re Gamble , F. The Rule b period passed without objection. Debtors disclosed an interest in a personal injury accident, and no one objected. Trustee objected to motion to approve settlement. To include exempt property within the parameters of 11 U. As Debtor herein has claimed the full value of the Auto Accident Claim proceeds as exempt and no objections to the claim were filed, the property is deemed exempt.

The Debtor is entitled to the balance of the undistributed proceeds of the Auto Accident Claim, even though auto accident claim proceeds are not entitled to exemption under existing law. United States In re Taylor , F. The Taylors base their argument on Patterson v. Shumate, U. The question of whether income from a pension is exempt from creditors is a wholly independent inquiry from the question whether the pension income is reasonably necessary to support the debtor.

Debtors amended Schedule C to claim the proceeds exempt. Trustee objected to amended exemptions. It is clear that property which is claimed as exempt and to which no timely objection is filed is not subject to the disposable income test. Iowa Plan that proposes to pay unsecured claim holders from liquidation of nonexempt assets fails disposable income test.

Stuart v. Accord Taylor v. Therefore, the status of the property, whether property of the estate, but exempt, or not property of the estate, which is the source of the revenue, is not relevant for determining whether the revenue received by the debtor should be included in disposable income.

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In this case, the corpus of the Pebsco Plan, which is an employer-provided deferred compensation plan, may be exempt property or may not be property of the estate at all. The Debtors have not met their burden to show that in enacting Section b 2 , Congress implicitly assumed that disposable income refers to non-exempt income only. Accord In re Smith, B. One of the debtors was entitled to cash distributions from a profit-sharing plan but elected in the current year to reinvest the distribution rather than take it in cash.

Applying Patterson v. Smith actually receives the funds held in trust for her benefit. In the event Mrs. Smith receives a cash distribution from the Profit Sharing Plan during the term of the amended plan, this court will require the debtors to devote the net proceeds of the distribution after taxes and penalties to make plan payments to creditors. The Trustee argues that this court should require Mrs. Smith to take future benefits under the Profit Sharing Plan in the form of a cash distribution. Smith to elect to take her benefits under the Profit Sharing Plan in the form of a cash distribution.

In the latter scenario, the benefit which the debtor elects to defer is income at the time of the transfer. This fact is a key distinction. Short is not eligible to receive income from the qualified retirement account without penalty. See also Education Assistance Corp. Zellner, F. Accord In re Nation, B. Villarie, F. The Supremacy Clause requires that state statutes and regulations be preempted by the Bankruptcy Code. Villarie, ] F. Sapir In re Taylor , F. Pees In re Harshbarger , 66 F.

Residual Income

Investments of this nature are therefore made with disposable income; disposable income is not what is left after they are made. As such, each plan violates principles espoused in Harshbarger. This is the precise transaction contemplated by the legislative history of subsection 12 , which makes it analogous to a loan on an insurance policy, and thus a transaction that is excluded from the definition of a debt under the Code.

When a debtor borrows money from his retirement account, he is, in essence, borrowing money from himself. While the letter indicates that an employee cannot make a request to stop the deductions, the Court is not precluded from ordering the employer to cease said deductions. The Court concludes, as did the bankruptcy court in [ Harshbarger v. State law permits the debtor to discontinue the payroll deductions, and repayment of the amount withdrawn is not a condition of employment.

See also In re McDonald, B. Debtor worked for county. Citing In re Nation, B. Charlton has no control over the PERS deductions, and they are required to be deducted from his wages. PERS deductions are part of a pension trust fund to pay benefits to all eligible members. The employer can be compelled to make up the shortfall and pay a penalty. If a retirement contribution is truly involuntary, the court must then examine what consequences would result from the debtor losing his job.

In determining whether the involuntary contribution is reasonably necessary in light of the circumstances, the Court will examine and balance several factors. Moreover, the settlement awards. The court cannot adopt a definition of income that would allow debtors receiving disability payments in a lump sum to be treated differently from those receiving the payments periodically. This Court shall follow the reasoning in Watters v. McRoberts, B. Thus, exempt assets are clearly part of the disposable income equation.

Accord In re Gebo, B. Hull had a present undivided one-half interest in any community property. They both receive in the case of the filing spouse all benefits of the joint income and expenses as well as the benefits of debt payment. This view recognizes the reality that married couples live as a unit, pooling their income and expenses. Ohio See also In re Bottorff, B.

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All unsecured debts were incurred separately by debtor before marriage to nonfiling husband. Accord In re Ehret, B. Ohio ; In re Akin, 54 B. See also In re Dunning, B. As these particular debtors have earned significant amounts of overtime pay in the past, the court finds that one can reasonably expect that they will have the opportunity to earn similar overtime pay in the next three years.

In the event the debtors receive overtime in a given month during the plan term exceeding the projected amount set forth on Schedule I, the court will require the debtors to increase their plan payment to the Trustee for that month in an amount equal to the net increase in income attributable to the additional overtime work.

Accord In re Falquist, 85 B. See also In re James, B.