§ 11.1     What Is Regular Income?
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 11.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

To be eligible for Chapter 13 relief, 11 U.S.C. § 109(e) requires an individual to have “regular income.”1 “Individual with regular income” is then somewhat circularly defined in 11 U.S.C. § 101(30): “‘individual with regular income’ means individual whose income is sufficiently stable and regular . . . to make payments under a plan[.]”2

[2]

A layperson might say that regular income means a source of money sufficient to fund a Chapter 13 plan. Some courts have stated in the negative that an individual lacks regular income when sources of cash are insufficient to pay ordinary living expenses for the debtor and the debtor’s family.3 These general notions are too simplistic for all of Chapter 13 practice, but digging deeper hardly clarifies what it means for an individual to have regular income.

[3]

Using the words “regular” and “income” in § 101(30) to define the phrase “regular income” is not helpful. “Income” is not separately defined by the Bankruptcy Code.

[4]

Dictionary definitions of income drag us all over a difficult landscape. The Oxford English Dictionary (2d ed.) offers this:

That which comes in as the periodical produce of one’s work, business, lands or investments (considered in reference to its amount, and commonly expressed in terms of money); annual or periodical receipts accruing to a person or corporation; revenue.4

Webster’s says this:

[A] gain or recurrent benefit that is usu. measured in money and for a given period of time, derives from capital, labor or a combination of both, includes gains from transactions in capital assets, but excludes unrealized advances in value: commercial revenue or receipts of any kind except receipts or returns of capital . . . . [T]he value of goods and services received by an individual in a given period of time.5
[5]

There are several not quite common features in these dictionary definitions. There is a sense of “periodic” and “given period of time”—not necessarily the same form of repetition. Measurement or expression in “money” is appropriate. The gain or benefit that is called income can come from labor, capital6 or combinations.

[6]

What do “regular” and “stable” in § 101(30) add to this picture? Again, the dictionaries:

Stable . . . [N]ot liable to fail or vary . . . permanent; of durable nature or quality . . . persisting without essential or permanent change of character . . . strong, capable of endurance.7
Stable . . . [N]ot subject to sudden change: subject to relatively limited fluctuation: DURABLE, UNVARYING.8
Regular . . . Characterized by the presence or operation of a definite principle; marked or distinguished by steadiness or uniformity . . . . Recurring or repeated at fixed times. . . . Habitually or customarily used, received, observed.9
Regular . . . [S]teady or uniform in course, practice, or occurrence: not subject to unexplained or irrational variation: steadily pursued: ORDERLY, METHODICAL . . . returning, recurring, or received at stated, fixed, or uniform intervals.10
[7]

It is hard not to notice the redundancies that regular and stable add to the dictionary definitions of income. Both words evoke thoughts of certainty and predictability. There is tension with respect to whether repetition is required. Using only dictionary definitions, perhaps a single event that produces benefit from work or capital that can be valued in money is income so long as the event is predictable.

[8]

“To make payments” in § 101(30) reveals something useful. The word “payments” in Chapter 13 parlance almost always means cash or cash equivalents (checks, money orders, and the like) received from the debtor or the debtor’s employer11 and then distributed by the Chapter 13 trustee12 (or the debtor)13 in the form of checks (or electronic transfers) to creditors. That income and payments are linked in § 101(30) suggests that income in forms other than money or monies worth might not be income for eligibility purposes. This is significant because Chapter 13 debtors often receive nonmonetary benefits that are difficult to convert to money or monies worth.14

[9]

“Under a plan” in § 101(30) connects stable, regular, income to a Chapter 13 plan. “Plan” is complicated in this context because any number of plans are possible in a Chapter 13 case but only a narrow subset of possible plans would be confirmable.15 Congress didn’t say “confirmable” in § 101(30),16 but (too) many courts have looked to confirmation requirements for guidance with respect to what constitutes regular income for eligibility purposes. This is a slippery slope that quickly destabilizes the whole notion of regular income at the threshold of a Chapter 13 case.

[10]

There is a separate statutory condition for confirmation that the debtor “will be able to make all payments under the plan and to comply with the plan.”17 This “feasibility” requirement is precisely focused on the actual plan proposed by the debtor. In the context of a challenge to conversion from Chapter 7 to Chapter 13, one district court explained that the existence of the separate test for feasibility at confirmation signals that the threshold eligibility determination in § 101(30) is both a different test and a less demanding hypothetical inquiry with respect to the plan:

In the context of a conversion motion, a distinction should be drawn between determining eligibility to be debtor under the chapter to which conversion is sought and the feasibility of the eventual confirmation of a plan under the same chapter. The former is a basic gatekeeping inquiry: so long [as] prospective debtor satisfies the few requirements of section 109(e), eligibility is established. In contrast, the feasibility determination is conducted pursuant to the extensive and detailed requirements set forth in section 1325 of the Bankruptcy Code, and only after a plan has been filed. See 11 U.S.C. § 1325. Because a Chapter 13 plan need not be filed until 14 days after the petition for relief, it is premature to consider the feasibility of such a plan prior to conversion. . . . If a debtor seeking conversion to Chapter 13 has income that is sufficiently regular and stable to enable him or her to make payments under some hypothetical Chapter 13 plan, the gatekeeping definitional requirement of 101(30) is satisfied. . . . Once it is determined that the debtor has “sufficiently regular and stable” income to make payments under a hypothetical Chapter 13 plan, the definitional requirement of section 101(30) incorporated in the eligibility requirements of section 109(e) is satisfied. The adequacy of the debtor’s income to fully support a specific plan is not part of the analysis.18
[11]

In support of this outcome, the district court noted that “sufficient” in § 101(30) modifies “stable and regular,” not income. Thus the stability and regularity of income is measured for eligibility purposes without reference to the amount of income that would be sufficient to fund any particular plan.

[12]

It has been said that the expansion of eligibility for Chapter 13 in the 1978 Code included that Congress intended a broad definition of income in § 101(30).19 The Bankruptcy Reform Act of 197820 made important changes in the language of former law with respect to income and eligibility for Chapter 13 relief. As explained in Santiago-Monteverde v. Pereira (In re Santiago-Monteverde):21

The phrase “individual with regular income” is defined in section 101(30) of the Bankruptcy Code, and constitutes a significant alteration of the language from the analogue provision of the previous bankruptcy statute. The Bankruptcy Act of 1898 . . . had required that a prospective debtor under Chapter XIII be a “wage earner,” defined as an individual whose principal income was derived from “wages, salary, or commissions.” . . . The Bankruptcy Code substituted the phrase “individual with regular income” for “wage earner,” and the legislative history of the Bankruptcy Reform Act of 1978 indicates that this modification was intended to substantially broaden the scope of individuals eligible to seek relief under Chapter 13. . . . Based on this context, a substantial majority of courts have concluded that the type or source of an individual’s income is generally irrelevant to the issue of eligibility so long as the income is, in the words of the statute, “stable and regular.”22
[13]

Continuing in a note:

The Senate Report for the Bankruptcy Reform Act of 1978 states that the purpose of the modification was to “permit almost any individual with regular income to propose and to have approved a reasonable plan for debt repayment based on that individual’s exact circumstances.” S.Rep. No. 95-989, at 13, 1978 U.S.Code Cong. & Ad. News at 5799. The House Report further stated that “[e]ven individuals whose primary income is from investments, pensions, social security or welfare may use chapter 13 if their income is sufficiently stable and regular.” H. Rep. No. 95-595, 95th Cong., 1st Sess. 119, reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6080.23
[14]

The stability and regularity of income for eligibility purposes cannot be assessed without some attention to the source of that income.24 But reference to the source of income can create new problems when the source is cabined by other state or federal laws. For example, Social Security benefits may or may not be included in regular income for eligibility purposes because of the insulation from bankruptcy laws in § 207 of the Social Security Act.25 There is also the problem that not all sources of income are property of the estate or can be characterized as producing property of the estate.26

[15]

At the very least, income includes earnings from services performed by a Chapter 13 debtor after commencement of the case. Property of the bankruptcy estate, defined generally in 11 U.S.C. § 541, was expanded by 11 U.S.C. § 1306(a)(2) to include a Chapter 13 debtor’s personal services earnings after the petition.27 However, there is nothing in the Bankruptcy Code requiring that income to fund a Chapter 13 plan must also be property of the estate. This is an important point sometimes overlooked in the reported cases: income need not be property of the Chapter 13 estate to be included in regular income for eligibility purposes. Income that is not included in the Chapter 13 estate or that exits the estate through some window in the Code28 may not be protected by the automatic stay,29 but there is no statutory connection between the reach of the stay and whether an individual has regular income for § 101(30) purposes.

[16]

Income is a term of art many other places in the Bankruptcy Code. Strong canons of statutory construction suggest that income for eligibility purposes in § 101(30) should be coextensive with income for other purposes unless wording or context requires otherwise. The most obvious other place in Chapter 13 to look for a use of “income” that might help divine the meaning of regular income in § 101(30) is the “projected disposable income” test in 11 U.S.C. § 1325(b).30 This is so because, as mentioned above, making payments “under a plan” is right there in § 101(30), and the projected disposable income test in § 1325(b) is a fundamental component of confirming a Chapter 13 plan.

[17]

Demonstrated below, many courts have looked to the meaning of projected disposable income at confirmation for guidance to determine whether an individual has regular income for eligibility purposes. This is a mistake because the statutory use of words is fundamentally different and context here is everything—eligibility for Chapter 13 and confirmation of a specific plan are not analogous.

[18]

At confirmation of a Chapter 13 plan, it is almost always necessary for the debtor to satisfy the “projected disposable income test” in 11 U.S.C. § 1325(b).31 In simple form, upon proper objection, § 1325(b) requires Chapter 13 debtors to commit all projected disposable income to funding the plan for up to five years. After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),32 “disposable income” is defined as “current monthly income received by the debtor . . . less amounts reasonably necessary to be expended . . . for the maintenance or support of the debtor or a dependent of the debtor [.]”33 “Current monthly income” is a new term of art with a complex and controversial definition in § 101(10A).34

[19]

The eligibility requirement in § 109(e) that only an individual “with regular income” may be a debtor under Chapter 13 was not changed by BAPCPA. The definition of “individual with regular income” in § 101(30) was not changed by BAPCPA. Pre-BAPCPA cases interpreting “regular income” and determining the date at which an individual must have regular income to be eligible for Chapter 1335 remain good law.

[20]

More importantly for current purposes, the huge statutory changes in the projected disposable income test worked by BAPCPA should not change the interpretive relationship between these two fundamentally different concepts. In other words, that Congress reconfigured the projected disposable income test in BAPCPA should not impact interpretation of regular income for eligibility purposes under § 101(30). Good arguments can be made that the extensive redefinition of the projected disposable income test by BAPCPA further distanced the distorted notion of income in § 1325(b) from the regular income that a debtor must have to be eligible for Chapter 13.

[21]

Before October 17, 2005, the calculation of a Chapter 13 debtor’s projected disposable income for confirmation purposes under § 1325(b) was based on projection of the debtor’s actual income and expenses at or near the time of confirmation.36 After BAPCPA, the projected disposable income test in § 1325(b) begins with a determination of the debtor’s CMI.37

[22]

There is more than just new terminology in the definition of current monthly income in § 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 schedule 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); and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor’s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor’s spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.38
[23]

CMI begins with a Chapter 13 debtor’s income in the six months prior to the petition. It is then an average of actual monthly income during that earlier six-month period and it both includes and excludes items of income that are not included or excluded by statute from “regular income” for eligibility purposes under § 101(30). For example, Social Security benefits are statutorily excluded from current monthly income by § 101(10A)(B).39 That Social Security benefits are excluded by statute from CMI at confirmation of a Chapter 13 plan does not tell us whether Social Security benefits are included or excluded to determine whether an individual has regular income for eligibility purposes. Good statutory construction arguments can be made that Social Security benefits should be included for eligibility purposes under § 101(30) because those benefits are not excluded by statute as they are with respect to projected disposable income at confirmation under §§ 101(10A)(B) and 1325(b).40

[24]

Requiring that income be disposable income to be considered regular income proves too much. A Chapter 13 plan that pays nothing to unsecured creditors because the debtor has no projected disposable income is a confirmable plan.41 The absence of projected disposable income could be caused by insufficient income from wages and other sources such that the debtor also lacks regular income. But the opposite is most assuredly true—there are many Chapter 13 debtors showing no projected disposable income for confirmation purposes when regular income is easily proven—under any definition of income—for eligibility purposes. Projected disposable income at confirmation is not a necessary condition for the existence of regular income for eligibility purposes. That a debtor has projected disposable income is not certain to be sufficient to prove that the debtor has regular income. This will be true, for example, because projected disposable income under § 1325(b)—according to the Supreme Court of the United States42—begins with a retrospective calculation (CMI) that has no predictable relationship to actual income,43 and the amount produced by that formula can then change based on “projected” (“known or virtually certain”) events—a possibility not suggested by the different words in § 101(30).

[25]

Other examples of how the CMI definition disconnects from the regular income requirement for eligibility are easy to construct. After BAPCPA, a debtor who recently lost a well-paying job will show substantially more CMI for purposes of the projected disposable income test at confirmation than the debtor actually has available to fund a plan. The opposite is also obvious—a Chapter 13 debtor whose income is rising will show less CMI based on an average of the six months before the petition but would have more regular income for § 101(30) purposes. A debtor with a car payment less than the Local Standards Transportation Ownership allowance published by the Internal Revenue Service44 may show more regular income than projected disposable income. The permutations of this phenomenon are endless—BAPCPA disconnected the calculation of projected disposable income at confirmation from the realities of the income (and expenses) of Chapter 13 debtors.45

[26]

This statutory uncoupling has not stopped courts from conflating the confirmation requirement in § 1325(b) and the eligibility requirement in § 109(e). For example, in Pellegrino v. Boyajian (In re Pellegrino),46 the debtor proposed a one-month plan funded by an $8,000 loan from a friend. There were good reasons not to confirm this plan, but the conclusion of the Bankruptcy Appellate Panel for the First Circuit that this debtor was not eligible for Chapter 13 relief is troubling.

[27]

In Pellegrino, the debtor had CMI less than applicable median family income.47 This debtor, thus, had an “applicable commitment period” of 36 months.48 The BAP acknowledged that BAPCPA did not amend § 109(e), but the BAP considered the applicable commitment period calculation in § 1325(b)(4) because it “indirectly” affected eligibility of the debtors for Chapter 13 relief.

[28]

The applicable commitment period calculation is in the projected disposable income test in § 1325(b)—a condition for confirmation of a plan. The BAP in Pellegrino calculated that the debtors would have negative projected disposable income for the duration of the applicable commitment period and thus “the Debtors do not have sufficient income over the minimum commitment period to ‘make payments under a plan.’”49 The BAP said this would be true “even if the loan proceeds are income.”50 The BAP held that the bankruptcy court “properly found that [debtors] are not eligible for chapter 13 relief under § 109(e).”51

[29]

Pellegrino is probably correct that a loan is not income for purposes of the regular income requirement in § 101(30).52 But equating the absence of projected disposable income to an insufficiency of regular income for eligibility purposes was unnecessary53 and alarming. If, as the BAP states, a loan could be income, then analysis of the stability and regularity of that loan stands apart from satisfaction of the projected disposable income test.54

[30]

Other courts get it right—especially after BAPCPA, there is no useful analogue between regular income for eligibility purposes and projected disposable income at confirmation. For example, in In re Smith,55 the debtors proposed an odd plan in which payments to the trustee would not commence until 33 months after confirmation. The argument was made that the debtors lacked regular income for § 109(e) purposes. The bankruptcy court appropriately observed: “[F]or purposes of eligibility under Section 109(e), the inquiry is a perfunctory one. It is limited in scope to income received by the debtor and does not equate with the separate determination of a debtor’s ‘disposable income.’”56

[31]

The interplay of exemptions and income is another manifestation of this problem of statutory interpretation. There are many reported decisions holding that income for purposes of the projected disposable income test should be determined without regard to whether the debtor has an exemption in the money received or in the property that produces the money received by the debtor.57 Applying this logic to § 109(e), regular income should be determined without regard to exemptions available to the debtor.

[32]

In contrast, other courts have cited 11 U.S.C. § 522(c)58 for the proposition that exempt property, regardless of form, is not subject to the claims of creditors and thus is not projected disposable income for purposes of § 1325(b).59 This logic could inspire the conclusion that exempt income is not regular income. More carefully, income can be regular income for eligibility purposes and then be excluded from projected disposable income at confirmation because it is “not liable” for prepetition debts under § 522(c). There are many cases holding that debtors are eligible for Chapter 13 relief though their only income is Social Security benefits,60 workers’ compensation or other entitlements61 and pension or retirement benefits62 that are insulated from creditors by state or federal law.63

[33]

This interaction of exempt property and income gets tricky for debtors. If exempt income is excluded from projected disposable income at confirmation, a Chapter 13 debtor probably cannot be required to make payments to creditors from that exempt income as a condition for confirmation under § 1325(b). A Chapter 13 debtor not willing to use exempt income to fund a plan may get away with that decision for purposes of the confirmation test in § 1325(b) but may need to claim some or all of that same income as “regular income” for eligibility purposes. Flipped around, if a debtor relies on exempt income as regular income for eligibility purposes, the Code seems to allow that debtor to claim that same income is not projected disposable income at confirmation. The statutory contexts are completely different. More likely, Chapter 13 debtors will elect to include some or all exempt income in income for all purposes—because the debtor needs that income to be eligible for Chapter 13 and to make payments to creditors under a plan that will be confirmable without an expensive fight. One court held that a Chapter 13 debtor entitled to an exemption in workers’ compensation proceeds must waive that exemption in order to satisfy the disposable income test at confirmation.64 The same logic would require a Chapter 13 debtor to waive exemptions at the inception of the case if regular income for eligibility purposes was dependent on the use of income that would otherwise be exempt property. The Code does not compel these waivers.

[34]

Official Form 106I, Schedule I,65 the schedule on which the debtor is required to list all current income, includes within the concept of income all of the following:

1.Wages
2.Salary
3.Commissions
4.Overtime pay
5.Income from operation of business, profession or farm
6.Income from rental property
7.Interest and dividends
8.Alimony, maintenance or family support payable to the debtor
9.Social Security, unemployment compensation or other government assistance
10.Pension or retirement income
11.Other monthly income.

 

With the exception of Social Security benefits,66 Official Forms 122C-1 and 122C-2—used to determine current monthly income and to calculate projected disposable income for some debtors—ascribes a similarly broad scope to the meaning of income.67

[35]

Thus, the forms drafters contemplate that a Chapter 13 debtor will schedule as income items that are exempt property, income that would not necessarily be property of the estate and income to which creditors would not be entitled at confirmation. For example, a pension produces income that must be scheduled by the debtor; however, if properly qualified under the Employee Retirement Income Security Act (ERISA), that pension may be excluded from property of the estate by § 541(b)(7) or (c)(2).68 That same pension income would be included in CMI and, net of expenses, would be included in projected disposable income at confirmation.69 The pension contributions that create that income may or may not reduce projected disposable income—there is controversy about that.70 Child support received by the debtor would be scheduled as income, typically is exempt under state law and would be excluded from projected disposable income at confirmation. The point here is obvious: “Income” is a loose component of many important terms of art in Chapter 13 of the Bankruptcy Code; much care must be exercised to avoid polluting the meaning of income for one purpose with notions that apply only in other contexts.

[36]

One of the few courts to directly address the definition of income for Chapter 13 purposes held that a tax refund was income because it represents an overpayment of taxes on income.71 The court supported this conclusion by acknowledging that if a tax refund would be considered disposable income for purposes of the test for confirmation in § 1325(b), then it should also be counted as income for Chapter 13 purposes generally.72 This analogy is a thin reed for all the reasons just discussed. Add to that list that accounting for tax refunds within the projected disposable income test after BAPCPA has thoroughly fractured the reported decisions.73

[37]

In the context of a disposable income test objection to confirmation, one bankruptcy court concluded that a loan is not properly considered income.74 In support of this outcome, the court cites James v. United States,75 a 1961 U.S. Supreme Court case holding that a bona fide loan is not income for purposes of the Internal Revenue Code. The court found that the Internal Revenue Code was “the most logical choice of federal law to aid in a definition of income.”76 Harmonizing the Bankruptcy Code definition of income with the tax definition of income was necessary and desirable because “[i]t is necessary that the two titles of the United States Code logically mesh with each other. . . . One may logically infer that Congress meant for one to look to the IRC for the definition. . . . [B]ankruptcy courts have not done so. This neglect has led to inconsistent results.”77

[38]

Although tax issues and bankruptcy issues sometimes overlap and interact, it is clear that Congress did not intend the tax code definition of income to control for all bankruptcy purposes. Mentioned above and detailed elsewhere,78 the 2005 rewrite of the projected disposable income test is bottomed on current monthly income that explicitly includes income “without regard to whether such income is taxable income.”79 The complex, technical and thoroughly history-bound treatment of income by the Internal Revenue Code would be a nightmare of application in bankruptcy cases. What would the bankruptcy courts do with “phantom” income? “Imputed” income? Exclusions from income? These concepts all have meaning in the tax context but apply poorly if at all to the regular income requirement for eligibility purposes or the disposable income test at confirmation in a Chapter 13 case. The Internal Revenue Code may be a useful source of ideas about what constitutes income for bankruptcy purposes. The Internal Revenue Code does not, however, supply a comprehensive definition of income for all bankruptcy purposes.80 One tax protestor learned the hard way that mixing income for tax purposes with regular income for eligibility purposes leads right out of bankruptcy court.81

[39]

Though the dictionary definitions above say that “regular” implies periodic, it is clear from the cases that regular income can be as irregular as sales commissions or a farmer’s crop income.82 Income must be reasonably predictable83—too many contingencies can break the chain of regularity.84 Cases have allowed commission salespeople and others who cannot precisely predict the regularity of their incomes to be Chapter 13 debtors.85 It has been said that the phrase “regular income” focuses this eligibility requirement on the stability rather than the type or source of income available to the debtor.86 Some courts find that the most compelling evidence of regular income is whether the debtor is current with plan payments at the time of confirmation.87

[40]

Income need not come from an outside source—it can be the earnings of a self-employed individual.88 It need not be wages in the traditional sense, though regular income certainly includes hourly, weekly, biweekly, semimonthly and monthly employment. Regular income need not be “earned” in the sense of consideration paid for labor performed—assistance payments, benefits programs and entitlements programs all contribute to satisfaction of the regular income requirement for Chapter 13 eligibility.89

[41]

The question whether liquidation of an asset produces regular income has proven difficult.90 There are many species of this issue: sale of a house or other real property; recovery from a lawsuit; rent from a depreciating asset; sale of inventory from a business. In one sense there is nothing “regular” about a one-time sale or other liquidation of an asset. On the other hand, there is certainly a predictable time frame in which most assets can or will be reduced to cash, and there is stability to the receipt of that money when the asset has a known value. The Code does not categorically preclude that regular income will come from liquidation of something that might also be considered an asset of the Chapter 13 estate.91 Proof of value and when that value will be received as cash is particularly important when regular income for eligibility purposes is premised on liquidation of an interest of the debtor in property.92 In the context of a disposable income test objection to confirmation under § 1325(b),93 one court held that income includes a Chapter 13 debtor’s anticipated recovery from a personal injury lawsuit.94 The Third Circuit recognized that payments under an annuity contract acquired by the debtor in settlement of a prepetition personal injury lawsuit could be income for Chapter 13 purposes; however, because the debtor assigned the right to payments before filing, the annuity contract would not produce “regular income.”95

[42]

There is general agreement that regular income for eligibility purposes is prospective: courts should assess the debtor’s likelihood of having income in the future sufficient to fund a Chapter 13 plan.96 After the enactment of BAPCPA, there was much controversy whether “projected disposable income” at confirmation is a prospective calculation or is historically bound by the retrospective definition of current monthly income in § 101(10A)(A).97 For confirmation purposes that controversy was arrested by the Supreme Court of the United States in 2010 in Hamilton v. Lanning.98 In Lanning, the Supreme Court held that changes in income that are “known” or “virtually certain” are “projected” for purposes of § 1325(b).99 To the extent courts look to the projected disposable income test for insight into the meaning of regular income for eligibility purposes, Lanning counsels in favor of a prospective view of regular income. But the absence of the word “projected” in § 101(30) argues for much caution in this approach. For example, at least one court has held that the projected disposable income test includes some consideration whether an able-bodied debtor could earn more money.100 If projected disposable income at confirmation includes the possibility that a debtor could earn more money, can the same be said of the regular income needed for eligibility at the inception of a Chapter 13 case? Is an able-bodied but unemployed individual nonetheless an individual with regular income based on the “known” prospects of employment?101

[43]

When a married couple files a joint Chapter 13 petition, the incomes of both are typically aggregated to determine whether the debtors have regular income for eligibility purposes. This conventional approach to the eligibility of married individuals is not immediately apparent from the statute. Neither 11 U.S.C. § 109(e) nor § 101(30) compels or precludes aggregation of spouses’ incomes for eligibility purposes. Awkwardly, § 109(e) refers to “an individual with regular income and such individual’s spouse” for purposes of aggregating debts.102 A negative implication could be drawn from the absence of aggregation language with respect to income. Notice also that after BAPCPA, § 101(10A) explicitly aggregates the income of the debtor and the spouse of the debtor in a joint case for purposes of the projected disposable income test at confirmation.103

[44]

In a joint case, some decisions suggest it is not necessary that both spouses have regular income for both spouses to be eligible. For example, it has been held that an unemployed spouse with no regular income is eligible for Chapter 13 in a joint case with a spouse who is employed and has regular income.104

[45]

Joint cases present a buried eligibility problem that is revealed on unusual facts in In re Lovell.105 The Lovells filed separate Chapter 13 cases—not a single “joint” case.106 Separate cases for spouses are not common, but the practice was encouraged by BAPCPA.107 The eligibility issue in Lovell may not be as unusual as first appears.

[46]

The husband in Lovell confirmed a plan that committed all of his projected disposable income to paying creditors.108 In the wife’s case, the schedules showed no source of income other than contributions from the husband’s separate case. The bankruptcy court concluded that the wife in Lovell lacked regular income because the husband was dedicating all of his projected disposable income to his case, leaving no money to fund the wife’s plan. It probably mattered that the wife scheduled creditors that were not creditors in the husband’s case.

[47]

Not present in Lovell is the reality that every joint case by a married couple is really two separate cases.109 It is common that one spouse in a joint case has earned income while the other spouse has less or no income—perhaps because of child care or illness or age. The result is the same as in Lovell: One spouse in the joint case has obvious “regular income”; the other spouse is dependent on a contribution to fund the joint plan. Is the “other” spouse in this equation always at risk of failing the regular income requirement for eligibility?

[48]

For confirmation purposes, the definition of CMI in § 101(10A) captures and combines the income of spouses in a joint case to determine the entitlement of creditors.110 It makes sense to do something similar for purposes of the eligibility of spouses in a joint case. There is no provision of the Code that requires this outcome.

[49]

When only one spouse files Chapter 13, most courts include some consideration of the nonfiling spouse’s income in the determination whether the debtor has regular income. This was true in pre-BAPCPA reported decisions because most courts included the nonfiling spouse’s income in the debtor’s budget for purposes of the projected disposable income test for confirmation in § 1325(b).111 After BAPCPA, when only one spouse is a debtor, current monthly income of the filing spouse for purposes of the projected disposable income test at confirmation includes only that portion of the nonfiling spouse’s income that is paid on a regular basis for the household expenses of the debtor or a dependent of the debtor.112 The nonfiling spouse’s income is accounted for in Schedule I, Official Form 106I—the schedule of current income filed by the debtor at the beginning of the Chapter 13 case—as well as in Official Form 122C-1—the form used to determine current monthly income for purposes of the projected disposable income test at confirmation.113 The expenses of the nonfiling spouse are budgeted as part of the family expenses in Schedule J, Official Forms 106J and 106J-2, and a nonfiling spouse’s expenses are partially but poorly accounted for in the projected disposable income test calculation at confirmation.114 It makes sense that some or all of the nonfiling spouse’s income would be included to determine whether the debtor has sufficient regular income to be eligible for Chapter 13, but no Code provision requires this result. It has been held that a nondebtor spouse’s income may “supplant or supplement a debtor spouse’s income . . . as long as the nondebtor spouse’s income is demonstrated to be sufficiently regular and stable.”115 On the other hand, if only an unemployed spouse files Chapter 13, the filing debtor has a substantial burden to prove regular income—complete dependence on a nonfiling spouse’s income may not be sufficient proof of the debtor’s regular income for eligibility purposes.116

[50]

If the debtor and a nonfiling spouse maintain separate households with separate expenses, the debtor might argue for exclusion of some or all of the nonfiling spouse’s income for purposes of confirmation of a plan.117 This argument is enhanced by the separate treatment of a nonfiling spouse’s income at confirmation after BAPCPA.118 Such a debtor would need to have income separate from that of the nonfiling spouse sufficient to satisfy the regular income eligibility requirement.


 

1  11 U.S.C. § 109(e), discussed in § 9.1  Summary of Eligibility Requirements and § 10.1  Debtor Must Be an Individual; Spouses Allowed.

 

2  11 U.S.C. § 101(30).

 

3  See In re Lindholm, No. 04-90452, 2005 WL 2218990 (W.D. Mich. Sept. 13, 2005) (unpublished) (Bell) (Case dismissed when debtor with budget deficit proposed 0% distribution to unsecured creditors and offered no evidence of regular income.); In re Schauer, No. 99-31918, 2000 WL 33792712, at *6–*7 (Bankr. D.N.D. Aug. 14, 2000) (unpublished) (Hill) (“According to his own cash flow analysis, Schauer has no means of funding the monthly payments required by the plan. . . . Without regular income, Schauer does not satisfy the eligibility requirements of 11 U.S.C. § 109(e).”); In re Smith, 234 B.R. 852, 854 (Bankr. M.D. Ga. June 2, 1999) (Walker) (“The ‘regular income’ requirement of 11 U.S.C. § 109(e) anticipates that the income is sufficient to fund the debtor’s living expenses and the plan payments.” Debtor’s attorney sanctioned for filing a Chapter 13 case for an unemployed debtor receiving public assistance that was “insufficient to support Debtor’s living expenses without regard to the amount of the plan payment.”).

 

4  Oxford English Dictionary 805 (2d ed. 1989).

 

5  Webster’s Third New International Dictionary 1143 (2002).

 

6  There is trouble ahead for debtors with assets to liquidate. See below in this section, and see § 12.11  Income from Leasing, Selling or Liquidating Assets.

 

7  Oxford English Dictionary 432–33 (2d ed. 1989).

 

8  Webster’s Third New International Dictionary 2218 (2002).

 

9  Oxford English Dictionary 522–23 (2d ed. 1989).

 

10  Webster’s Third New International Dictionary 1913 (2002).

 

11  See § 125.1  Order to Debtor’s Employer, § 125.2  Can Employer Charge a Fee?, § 125.3  Direct-Pay Orders, § 125.4  Changing Employers or Source of Income, § 125.5  Modification and Suspension of Income Deduction Orders, § 125.6  Failure to Deduct or Remit and § 125.7  Special Deduction Order Problems: Entitlements, Pensions and Government Employers.

 

12  See § 53.10  Make Payments to Creditors Unless Plan or Confirmation Order Provides Otherwise.

 

13  See § 74.8  Direct Payment of Secured Claims by Debtor before BAPCPA, § 85.6  Direct Payment of Mortgage or Payment by Trustee and § 89.1  Direct Payments by Debtor.

 

14  See § 12.7  Family Assistance, Welfare and Other Entitlements.

 

15  See Part 5.

 

16  Compare 11 U.S.C. §§ 362(d)(3)(A) and 362(c)(3)(C)(i)(III)(bb).

 

17  11 U.S.C. § 1325(a)(6), discussed in § 13.1  Debtor Must Be Able to Make Payments under a Plan, § 111.1  Able to Make Payments and Comply with Plan and § 111.2  Feasibility Turned on Its Head after BAPCPA.

 

18  Santiago-Monteverde v. Pereira (In re Santiago-Monteverde), 512 B.R. 432, 443 (S.D.N.Y. June 27, 2014) (Castel).

 

19  In re Lapin, 302 B.R. 184, 189 (Bankr. S.D. Tex. Sept. 3, 2003) (Steen) (“Congress intended to substantially expand eligibility for chapter 13 relief with an expansive, not a restrictive, definition of income.”).

 

20  Pub. L. No. 95-598, 92 Stat. 2549 (1978).

 

21  512 B.R. 432 (S.D.N.Y. June 27, 2014) (Castel).

 

22  In re Santiago-Monteverde, 512 B.R. at 438.

 

23  In re Santiago-Monteverde, 512 B.R. at 438 n.5.

 

24  See, e.g., In re Santiago-Monteverde, 512 B.R. at 440–41 (“[I]t is income itself that may qualify an individual as a Chapter 13 debtor . . . . This cannot be assessed without consideration of the source of that income.”).

 

25  See below in this section, and see § 12.5  Social Security.

 

26  See below in this section.

 

27  See § 46.2  Property of the Chapter 13 Estate—Changes by BAPCPA and § 58.3  Additional Protection for Postpetition Property and Income.

 

28  See, e.g., discussion of exemptions below and in § 48.1  Available and Important in Chapter 13 Cases.

 

29  See § 58.1  Usual Protections, § 58.2  BAPCPA Shrank Stay, § 58.3  Additional Protection for Postpetition Property and Income, § 58.4  Postpetition Creditors, § 58.5  Alimony and Support Exception, § 58.6  Domestic Support Obligation Exception after BAPCPA, § 58.7  Criminal Action or Proceeding Exception, § 58.8  Police and Regulatory Power Exception, § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA, § 58.10  Pension Loans Exception after BAPCPA, § 58.11  Miscellaneous New Stays and Exceptions after BAPCPA, § 58.12  Setoffs and Recoupments, § 58.13  Termination of Services to Debtor and Discrimination against Debtor and § 58.14  Expiration of Stay.

 

30  See § 91.1  In General, § 91.2  Projected (Disposable) Income, § 91.3  Reasonably Necessary for Maintenance or Support, § 91.4  Debtor or Dependent, § 91.5  Counting the Three-Year Period, § 91.6  Debtor Engaged in Business, § 91.7  Payment-in-Full Option, § 92.1  In General, § 92.2  Projected Disposable Income: All Debtors, § 92.3  Current Monthly Income: The Baseline, § 92.4  Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3), § 93.1  Section 1325(b)(2)(A) and (B): “Amounts Reasonably Necessary to Be Expended—” When CMI Is Less Than Median Family Income, § 94.1  Big Picture: Too Many Issues, § 94.2  Netting Issues, Including Exclusion of Payments for Debts, § 94.3  Accounting for Spouses, § 95.1  In General, § 95.2  National Standards, § 95.3  Local Standards: Housing and Transportation, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.6  Other [Necessary] Expenses—Charitable Contributions, § 95.7  Other [Necessary] Expenses—Child Care, § 95.8  Other [Necessary] Expenses—Court-Ordered Payments, § 95.9  Other [Necessary] Expenses—Dependent Care, § 95.10  Other [Necessary] Expenses—Education, § 95.11  Other [Necessary] Expenses—Health Care, § 95.12  Other [Necessary] Expenses—Involuntary Deductions, § 95.13  Other [Necessary] Expenses—Life Insurance, § 95.14  Other [Necessary] Expenses—Secured or Legally Perfected Debts, § 95.15  Other [Necessary] Expenses—Unsecured Debts, § 95.16  Other [Necessary] Expenses—Taxes, § 95.17  Other [Necessary] Expenses—Optional Telephones and Services, § 95.18  Other [Necessary] Expenses—Student Loans, § 95.19  Other [Necessary] Expenses—Internet Provider/E-mail, § 95.20  Other [Necessary] Expenses—Repayment of Loans to Pay Federal Taxes, § 95.21  Health and Disability Insurance, § 95.22  Family Violence Expenses, § 95.23  Five Percent More Food and Clothing, § 95.24  Elderly, Ill or Disabled, § 95.25  Administrative Expenses, Sorta, § 95.26  Education Expenses, § 95.27  Home Energy Costs, § 95.28  ABLE Program Contributions, § 96.1  Average Monthly Payments on Account of Secured Debts, § 97.1  Total Priority Debts and Divide by 60, § 98.1  Additional Expenses or Adjustments to CMI, § 99.1  In General, § 99.2  Amounts Paid by Others under § 101(10A)(B), § 99.3  Child Support, Foster Care and Disability Payments, § 99.4  Pension Loan Repayments, § 99.5  Employee Benefit Plan Contributions, § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?) and § 100.1  Applicable Commitment Period Calculation.

 

31  See § 91.1  In General, § 91.2  Projected (Disposable) Income, § 91.3  Reasonably Necessary for Maintenance or Support, § 91.4  Debtor or Dependent, § 91.5  Counting the Three-Year Period, § 91.6  Debtor Engaged in Business, § 91.7  Payment-in-Full Option, § 92.1  In General, § 92.2  Projected Disposable Income: All Debtors, § 92.3  Current Monthly Income: The Baseline, § 92.4  Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3), § 93.1  Section 1325(b)(2)(A) and (B): “Amounts Reasonably Necessary to Be Expended—” When CMI Is Less Than Median Family Income, § 94.1  Big Picture: Too Many Issues, § 94.2  Netting Issues, Including Exclusion of Payments for Debts, § 94.3  Accounting for Spouses, § 95.1  In General, § 95.2  National Standards, § 95.3  Local Standards: Housing and Transportation, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.6  Other [Necessary] Expenses—Charitable Contributions, § 95.7  Other [Necessary] Expenses—Child Care, § 95.8  Other [Necessary] Expenses—Court-Ordered Payments, § 95.9  Other [Necessary] Expenses—Dependent Care, § 95.10  Other [Necessary] Expenses—Education, § 95.11  Other [Necessary] Expenses—Health Care, § 95.12  Other [Necessary] Expenses—Involuntary Deductions, § 95.13  Other [Necessary] Expenses—Life Insurance, § 95.14  Other [Necessary] Expenses—Secured or Legally Perfected Debts, § 95.15  Other [Necessary] Expenses—Unsecured Debts, § 95.16  Other [Necessary] Expenses—Taxes, § 95.17  Other [Necessary] Expenses—Optional Telephones and Services, § 95.18  Other [Necessary] Expenses—Student Loans, § 95.19  Other [Necessary] Expenses—Internet Provider/E-mail, § 95.20  Other [Necessary] Expenses—Repayment of Loans to Pay Federal Taxes, § 95.21  Health and Disability Insurance, § 95.22  Family Violence Expenses, § 95.23  Five Percent More Food and Clothing, § 95.24  Elderly, Ill or Disabled, § 95.25  Administrative Expenses, Sorta, § 95.26  Education Expenses, § 95.27  Home Energy Costs, § 95.28  ABLE Program Contributions, § 96.1  Average Monthly Payments on Account of Secured Debts, § 97.1  Total Priority Debts and Divide by 60, § 98.1  Additional Expenses or Adjustments to CMI, § 99.1  In General, § 99.2  Amounts Paid by Others under § 101(10A)(B), § 99.3  Child Support, Foster Care and Disability Payments, § 99.4  Pension Loan Repayments, § 99.5  Employee Benefit Plan Contributions, § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?) and § 100.1  Applicable Commitment Period Calculation.

 

32  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

33  11 U.S.C. § 1325(b)(2). See § 91.2  Projected (Disposable) Income and § 92.1  In General.

 

34  11 U.S.C. § 101(10A) is discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.

 

35  Timing issues are discussed in § 11.2  When Must Debtor Have Regular Income?.

 

36  See § 91.1  In General, § 91.2  Projected (Disposable) Income and § 91.3  Reasonably Necessary for Maintenance or Support.

 

37  See 11 U.S.C. § 101(10A), discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.

 

38  11 U.S.C. § 101(10A).

 

39  See § 92.3  Current Monthly Income: The Baseline.

 

40  See § 12.5  Social Security and § 92.3  Current Monthly Income: The Baseline. See, e.g., Santiago-Monteverde v. Pereira (In re Santiago-Monteverde), 512 B.R. 432 (S.D.N.Y. June 27, 2014) (Castel) (Not proper to consider Social Security benefits to determine whether an individual has regular income for eligibility purposes in a Chapter 13 case because 42 U.S.C. § 407(a) provides that Social Security income is not subject to any bankruptcy or insolvency law.). BAPCPA was enacted 22 years after the 1983 amendments to 42 U.S.C. § 407(a). The district court in Santiago-Monteverde does not explain why Congress so carefully excepted Social Security benefits from current monthly income in the projected disposable income test in § 1325(b) if Social Security benefits were immune altogether from the reach of any bankruptcy law.).

 

41  See § 101.1  What Do Unsecured Creditors Get?.

 

42  See Hamilton v. Lanning, 560 U.S. 505, 130 S. Ct. 2464, 177 L. Ed. 2d 23 (June 7, 2010), discussed in § 92.3  Current Monthly Income: The Baseline.

 

43  See § 92.3  Current Monthly Income: The Baseline.

 

44  See § 95.3  Local Standards: Housing and Transportation.

 

45  See § 92.2  Projected Disposable Income: All Debtors.

 

46  423 B.R. 586 (B.A.P. 1st Cir. Feb. 9, 2010) (Hillman, Deasy, Rosenthal).

 

47  See § 92.4  Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3).

 

48  See 11 U.S.C. § 1325(b)(4), discussed in § 100.1  Applicable Commitment Period Calculation.

 

49  In re Pellegrino, 423 B.R. at 591.

 

50  In re Pellegrino, 423 B.R. at 591.

 

51  In re Pellegrino, 423 B.R. at 591.

 

52  See below in this section.

 

53  Perhaps the BAP meant to say that a one-time loan was not regular income.

 

54  See also In re Ellis, 388 B.R. 456 (Bankr. D. Mass. June 10, 2008) (Feeney) (Debtor with gross monthly income of $12,870 whose monthly expenses exceed that income has stable and regular income that is insufficient to make payments under a Chapter 13 plan as required by § 101(30). Although debtor had no projected disposable income and thus no applicable commitment period, no purpose was served by filing a Chapter 13 plan that made no payments to any creditors. Based on the monthly budget deficit, debtor had no disposable income and thus could not submit any future income to the control of the trustee as required by § 1322(a)(1). Debtor could not commence making payments as required by § 1326(a).).

 

55  No. 07-82462, 2009 WL 937144 (Bankr. C.D. Ill. Mar. 24, 2009) (unpublished) (Perkins).

 

56  In re Smith, 2009 WL 937144, at *2.

 

57  See § 91.2  Projected (Disposable) Income. See, e.g., Freeman v. Schulman (In re Freeman), 86 F.3d 478, 480–81 (6th Cir. June 27, 1996) (Merritt, Boggs, O’Meara) (“The plain language of [§ 1325(b)] makes no express or implied reference to the exempt status of income under state law.”); In re Pendleton, 225 B.R. 425 (Bankr. E.D. Ark. Sept. 29, 1998) (Mixon) (Applying Stuart v. Koch (In re Koch), 109 F.3d 1285 (8th Cir. Mar. 28, 1997) (Beam, Lay, Loken), proceeds from personal injury lawsuit are projected disposable income notwithstanding that debtor claimed proceeds exempt.); In re Turpen, 218 B.R. 908, 915–16 (Bankr. N.D. Iowa Jan. 21, 1998) (Edmonds) (“[T]he income from liquidating exempt assets would be considered in evaluating the plan under the disposable income test. Stuart v. Koch (In re Koch), 109 F.3d 1285, 1289 (8th Cir. [Mar. 28, 1997) (Beam, Lay, Loken)].”); In re Lush, 213 B.R. 152 (Bankr. C.D. Ill. Apr. 21, 1997) (Lessen) (Following In re Schnabel, 153 B.R. 809 (Bankr. N.D. Ill. Apr. 23, 1993) (Katz), and rejecting In re Kerr, 199 B.R. 370 (Bankr. N.D. Ill. Apr. 22, 1996) (DeGunther), workers’ compensation proceeds are projected disposable income notwithstanding debtor’s claim of exemption.); Gaertner v. Claude (In re Claude), 206 B.R. 374, 380–81 (Bankr. W.D. Pa. Mar. 25, 1997) (Bentz) (Although a portion of personal injury settlement proceeds is exempt under § 522(d)(11)(D), “[w]e conclude that § 1325(b) does not qualify income with reference to its exempt status.”); In re Baker, 194 B.R. 881, 885 (Bankr. S.D. Cal. Apr. 19, 1996) (Adler) (“If the exempt asset in question is an anticipated stream of payments, it is included in projected income; if the exempt asset is other than a stream of payments, it is not included.”); In re Cornelius, 195 B.R. 831, 835 (Bankr. N.D.N.Y. Dec. 5, 1995) (Gerling) (“Social Security Income, while exempt under state law, is to be incorporated in any projections of future income for purposes of determining disposable income.”); In re Minor, 177 B.R. 576 (Bankr. E.D. Tenn. Feb. 7, 1995) (Stair) (Lump-sum workers’ compensation settlement received during the three-year payment period is projected disposable income notwithstanding that it is exempt property under state law.); In re Jackson, 173 B.R. 168 (Bankr. E.D. Mo. Oct. 12, 1994) (Schermer) (Workers’ compensation award is income for purposes of the disposable income test notwithstanding that it is exempt under applicable nonbankruptcy law.); In re Hagel, 171 B.R. 686 (Bankr. D. Mont. Aug. 31, 1994) (Peterson) ($914 per month in exempt Social Security disability income is projected income for purposes of § 1325(b).), aff’d, 184 B.R. 793 (B.A.P. 9th Cir. July 28, 1995) (Meyers, Hagan, Marlar); Watters v. McRoberts (In re Watters), 167 B.R. 146 (S.D. Ill. Apr. 7, 1994) (Beatty) (Chapter 13 debtor must include all of a personal injury recovery as projected disposable income for purposes of § 1325(b)(1); debtor is not allowed an “exemption” from the disposable income test.); In re Schnabel, 153 B.R. 809 (Bankr. N.D. Ill. Apr. 23, 1993) (Katz) (Social Security benefits and pension benefits are included in projected disposable income without regard to whether such income would be exempt under applicable state or federal law.). See also Stuart v. Koch (In re Koch), 109 F.3d 1285 (8th Cir. Mar. 28, 1997) (Beam, Lay, Loken) (For § 707(b) purposes, a debtor’s workers’ compensation benefits, though exempt under state law, are projected disposable income notwithstanding § 522(c). “Including exempt income in disposable income does not make exempt property ‘liable’ to Chapter 13 unsecured creditors. Chapter 13 relief is at the option of the debtor. See § 1307(a), (b). The disposable income limitation in § 1325(b) simply defines the terms upon which Congress has made the benefits of Chapter 13 available.”).

 

58  11 U.S.C. § 522(c) provides in part:

(c) unless the case is dismissed, property exempted under this section is not liable during or after the case for any debt of the debtor that arose . . . before the commencement of the case, except— . . . 

 

59  In re Ferretti, 203 B.R. 796, 800 (Bankr. S.D. Fla. Sept. 10, 1996) (Cristol) (“The clear language of 11 U.S.C. § 522(c) protects exempt property, regardless of form, from pre-petition debts. . . . To include exempt property within the parameters of 11 U.S.C. § 1325(b)(2) directly conflicts with § 522(c).”); In re Kerr, 199 B.R. 370, 373–74 (Bankr. N.D. Ill. Apr. 22, 1996) (DeGunther) (On trustee’s motion to modify after confirmation, proceeds from the sale of debtor’s homestead are not projected disposable income because equity was exempted and § 522(c) prohibits reaching exempt income through § 1325(b). “[T]he clear language of Section 522(c) protects exempt property, regardless of form, from prepetition debts. The Court cannot ignore this express limitation for purposes of defining disposable income under Section 1325(b)(2). To include exempt property within the confines of Section 1325(b)(2) directly conflicts with Section 522(c).”).

 

60  See § 12.5  Social Security. After BAPCPA, Social Security benefits are excluded from current monthly income and from disposable income by 11 U.S.C. § 101(10A)(B). See § 92.3  Current Monthly Income: The Baseline.

 

61  See § 12.7  Family Assistance, Welfare and Other Entitlements.

 

62  After BAPCPA, some retirement and pension contributions are excluded from the projected disposable income test. See § 12.4  Retirement Income and § 99.5  Employee Benefit Plan Contributions.

 

63  See § 12.4  Retirement Income, § 12.5  Social Security, § 12.6  Disability Benefits; Workers’ Compensation and § 12.7  Family Assistance, Welfare and Other Entitlements.

 

64  See In re Lush, 213 B.R. 152 (Bankr. C.D. Ill. Apr. 21, 1997) (Lessen) (Because § 522(c) protects from creditors only property that is actually claimed exempt by the debtor, a Chapter 13 debtor entitled to workers’ compensation proceeds that would be exempt under state law “must decline to assert the exemption to which he would otherwise be entitled, and apply the income to his Chapter 13 plan in order for the debtor to pass the ‘disposable income test’ of § 1325(b)(1)(B).”).

 

65  Schedule I, Official Form 106I, is discussed in § 36.16  Schedules I and J—Income and Expenditures.

 

66  See 11 U.S.C. § 101(10A)(B), discussed in this section and in § 12.5  Social Security, § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.

 

67  Income for purposes of Official Forms 122C-1 and 122C-2, is discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.

 

68  See § 12.4  Retirement Income and § 46.7  Pension Benefits. See, e.g., In re Vega, 163 B.R. 489 (Bankr. W.D. Tex. Jan. 24, 1994) (Leif Clark) (Benefits payable to a Chapter 13 debtor from an ERISA-qualified public retirement system are “income” for purposes of funding the plan but are not property of the Chapter 13 estate under § 1306.). See also Patterson v. Shumate, 504 U.S. 753, 112 S. Ct. 2242, 119 L. Ed. 2d 519 (June 15, 1992) (Because ERISA is “applicable nonbankruptcy law” for purposes of § 541(c)(2), an ERISA-qualified plan is excluded from property of the bankruptcy estate.); Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775 (6th Cir. Sept. 19, 1995) (Keith, Kennedy, Siler) (“Section 541(c)(2) excludes a debtor’s beneficial interest in a trust that is subject to a restriction on transfer. . . . [T]his exempts a debtor’s beneficial interest in an ERISA-qualified account from the bankruptcy estate. . . . However, the money debtors wish to repay the ERISA account in the future is not similarly excluded.”).

 

69  Accounting for pension contributions for purposes of the projected disposable income test at confirmation is controversial. See § 99.5  Employee Benefit Plan Contributions.

 

70  See § 99.3  Child Support, Foster Care and Disability Payments.

 

71  In re Cochran, 141 B.R. 270, 272 (M.D. Ga. June 4, 1992) (Fitzpatrick) (A tax refund is income for Chapter 13 purposes. Though the Bankruptcy Code does not define “income,” “[a] tax refund is, by definition, a repayment of overpaid taxes on income, i.e., money that should have been classified originally as net income rather than paid as taxes. . . . [O]ther courts have treated tax refunds as constituting ‘disposable income’ under § 1325(b). . . . If a tax refund is included in the narrow category of disposable income under § 1325(b), then it is to be counted in the broader category of income in general under § 1325(c).”).

 

72  See Freeman v. Schulman (In re Freeman), 86 F.3d 478 (6th Cir. June 27, 1996) (Merritt, Boggs, O’Meara) (On trustee’s objection to modification after confirmation under § 1329, disposable income test in § 1325(b) applies, and unexpected tax refunds are projected disposable income that must be applied to payments under the plan notwithstanding that the debtor claims the tax refund as exempt property.).

 

73  See § 92.3  Current Monthly Income: The Baseline and § 95.16  Other [Necessary] Expenses—Taxes.

 

74  In re Stones, 157 B.R. 669 (Bankr. S.D. Cal. Aug. 23, 1993) (Adler). See also Pellegrino v. Boyajian (In re Pellegrino), 423 B.R. 586, 590–91 (B.A.P. 1st Cir. Feb. 9, 2010) (Hillman, Deasy, Rosenthal) (Debtors with negative disposable income fail regular income requirement for eligibility when one-month plan would be funded by $8,000 loan from a friend; even including $8,000 loan in income would not enable debtors to make payments over applicable commitment period. “Section 101(30) . . . contemplates that chapter 13 debtors will have disposable income from which to make plan payments. . . . [E]ven treating the proposed loan proceeds as income, their income is insufficient to provide payments to creditors under a plan over the applicable commitment period.”); In re Schauer, No. 99-31918, 2000 WL 33792712, at *6 (Bankr. D.N.D. Aug. 14, 2000) (unpublished) (Hill) (Lack of regular income is a ground for reconversion from Chapter 13 to Chapter 7. “Schauer must presumably fund the entire plan with borrowed money. The plan does not disclose the name of any lender willing to grant Schauer such a loan.”); In re Kelly, 217 B.R. 273 (Bankr. D. Neb. Dec. 19, 1997) (Minahan) (That the debtor receives student loans each year to continue work toward a Ph.D. and proposes to use a portion of those loans to fund Chapter 13 plan is evidence of bad faith.). But see In re Hult, No. 03-42140, 2004 WL 4960363, at *4 (Bankr. D. Idaho Feb. 18, 2004) (unpublished) (Pappas) (College student has regular income when educational expenses will be paid from future student loans and non-educational expenses are paid from part-time jobs. “Debtor does not rely solely on borrowed money to pay expenses and fund plan payments. Nor is Debtor’s income inadequate both to meet his non-educational expenses and to make plan payments. Instead, . . . Debtor has stable and regular income from wages. And while the amount of Debtor’s regular income is not large, it is sufficient to cover his monthly non-educational expenses and fund plan payments for three years. . . . As for Debtor’s proposed use of student loans to pay for his future educational expenses, the Court does not think that Debtor’s status as a student loan borrower should effectively disqualify him from Chapter 13 relief. . . . [W]hile the student is enrolled, such loan programs resemble a financial subsidy or investment in the borrowers’ futures, which pays dividends when these students graduate . . . . [T]he Court will not rule Debtor ineligible for Chapter 13 relief solely because he plans to use federal student loans to enable him to complete his degree while he is, at the same time, making payments under a Chapter 13 plan.”).

 

75  366 U.S. 213, 81 S. Ct. 1052, 6 L. Ed. 2d 246 (May 15, 1961).

 

76  In re Stones, 157 B.R. at 670.

 

77  In re Stones, 157 B.R. at 670.

 

78  See § 92.1  In General, § 92.2  Projected Disposable Income: All Debtors and § 92.3  Current Monthly Income: The Baseline.

 

79  11 U.S.C. § 101(10A)(A), discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline. Compare the incorporation of Internal Revenue Standards to determine expense deductions for some debtors in 11 U.S.C. § 707(b)(2)(A), discussed in § 94.1  Big Picture: Too Many Issues, § 94.2  Netting Issues, Including Exclusion of Payments for Debts, § 94.3  Accounting for Spouses, § 95.1  In General, § 95.2  National Standards, § 95.3  Local Standards: Housing and Transportation, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.6  Other [Necessary] Expenses—Charitable Contributions, § 95.7  Other [Necessary] Expenses—Child Care, § 95.8  Other [Necessary] Expenses—Court-Ordered Payments, § 95.9  Other [Necessary] Expenses—Dependent Care, § 95.10  Other [Necessary] Expenses—Education, § 95.11  Other [Necessary] Expenses—Health Care, § 95.12  Other [Necessary] Expenses—Involuntary Deductions, § 95.13  Other [Necessary] Expenses—Life Insurance, § 95.14  Other [Necessary] Expenses—Secured or Legally Perfected Debts, § 95.15  Other [Necessary] Expenses—Unsecured Debts, § 95.16  Other [Necessary] Expenses—Taxes, § 95.17  Other [Necessary] Expenses—Optional Telephones and Services, § 95.18  Other [Necessary] Expenses—Student Loans, § 95.19  Other [Necessary] Expenses—Internet Provider/E-mail, § 95.20  Other [Necessary] Expenses—Repayment of Loans to Pay Federal Taxes, § 95.21  Health and Disability Insurance, § 95.22  Family Violence Expenses, § 95.23  Five Percent More Food and Clothing, § 95.24  Elderly, Ill or Disabled, § 95.25  Administrative Expenses, Sorta, § 95.26  Education Expenses, § 95.27  Home Energy Costs and § 95.28  ABLE Program Contributions.

 

80  See § 36.19  Form 122C-1: Statement of Current Monthly Income, § 91.2  Projected (Disposable) Income and § 92.3  Current Monthly Income: The Baseline for further discussion of the definition of “income” for purposes of the disposable income test at confirmation in § 1325(b).

 

81  See In re Hovind, 197 B.R. 157, 161 (Bankr. N.D. Fla. June 5, 1996) (Killian) (Tax protestor whose statements and schedules say that everything he owns belongs to God and the money he receives is for doing God’s work fails the eligibility requirement in § 109(e). “In his own filings which were signed under a declaration under penalty of perjury . . . the debtor claimed he had no income. Thus, he should clearly be ineligible to be a debtor under chapter 13.”).

 

82  See § 12.1  Self-Employment, § 12.2  Multiple, Irregular and Seasonal Employment and § 12.3  Farming, Crop and Land Set-Aside or Payment in Kind.

 

83  See In re Kollar, 357 B.R. 657, 660–61 (Bankr. M.D. Fla. Oct. 5, 2006) (Briskman) (“The Debtor’s only income . . . is the sporadic, undocumented receipt of rent from a rental property and fees for independent contractor work. She has never made sufficient income to make her regular monthly mortgage payments. Her post-petition income is not sufficiently stable and regular to enable her to make payments under a Chapter 13 plan. Neither the rental income nor the independent contractor income constitutes . . . regular income pursuant to § 101(30). The Debtor is ineligible to be a Chapter 13 debtor pursuant to § 109(e).”).

 

84  See, e.g., Sullivan v. Java Oil Ltd. (In re Sullivan), No. CIV S-06-20-LKK, 2006 WL 1686732, at *2 (E.D. Cal. June 20, 2006) (unpublished) (Karlton) (Debtor’s concession that “his real income will come from contingency fee cases” supports finding that “there appears, then, nothing regular about [debtor’s] income.” Debtor failed to disclose his spouse’s income, did not disclose his own income for previous years and misstated the “nature, sources and regularity of his alleged income.”).

 

85  See § 12.1  Self-Employment and § 12.2  Multiple, Irregular and Seasonal Employment.

 

86  See In re Schauer, No. 99-31918, 2000 WL 33792712, at *7 (Bankr. D.N.D. Aug. 14, 2000) (unpublished) (Hill) (“‘The benchmark for determining whether an individual has “regular income” for purposes of section 101(30) of the bankruptcy code is not the type or source of income, but “its stability and regularity.”’”); In re Baird, 228 B.R. 324, 327–28 (Bankr. M.D. Fla. Jan. 7, 1999) (Proctor) (Debtor making $50,000 a year at the petition who lost his job and suffered a stroke has regular income for Chapter 13 purposes because the debtor’s son made all payments required by the plan. “The Code does not define the word ‘income’ within § 101(30). However, it is widely recognized that Congress intended the term ‘regular income’ as used in sections 101(30) and 109(e), to be interpreted broadly. . . . Therefore, the test for ‘regular income’ is not the type or source of income, but rather its regularity and stability. . . . [A]n individual with sources of income other than wages is qualified to propose a Chapter 13 plan if ‘the flow of funds is shown to be sufficiently regular and stable to enable payments to be made under a plan.’”).

 

87  In re Mercado, 376 B.R. 340 (Bankr. M.D. Fla. Sept. 27, 2007) (Proctor) (Test whether debtor has regular income is ability to make required plan payments. Notwithstanding potential excess of monthly expenses over monthly income, debtors demonstrated ability to make payments by making payments under proposed plan and have regular income.); In re Goodrich, 257 B.R. 101, 103–04 (Bankr. M.D. Fla. Dec. 13, 2000) (Proctor) (“The real test is whether Debtor is able to make the required payments under the plan. . . . At the confirmation hearing Debtor was substantially current with his plan payments. The Court therefore finds that Debtor has the ability to make the payments under the plan.”).

 

88  See § 12.1  Self-Employment.

 

89  See § 12.5  Social Security, § 12.6  Disability Benefits; Workers’ Compensation, § 12.7  Family Assistance, Welfare and Other Entitlements and § 12.8  Unemployment Benefits, Strike Benefits and the Like.

 

90  See § 12.11  Income from Leasing, Selling or Liquidating Assets. See, e.g., In re O’Brien, No. 09-03088-8-JRL, 2009 WL 4884478, at *1 (Bankr. E.D.N.C. Dec. 10, 2009) (unpublished) (Leonard) (Citing In re Anderson, 21 B.R. 443, 445 (Bankr. N.D. Ga. Nov. 2, 1981) (Norton), “‘[b]asing a plan solely upon the liquidation of equity in a debtor’s residence does not satisfy the requirement of “regular income.”’”); In re Gillis, 333 B.R. 1, 8 (Bankr. D. Mass. Oct. 14, 2005) (Somma) (Regular income requirement does not preclude feasible plan funded from sale or refinance of home in 36th month. Plan provided minimum payments from predictable monthly income balance of plan and payment of mortgage in 36th month by either selling home or refinancing. Balloon payment does not necessarily violate regular income requirement for eligibility. “Although the definition in § 101(30) contemplates ‘payments under a plan,’ in no way does it dictate how large those payments need be. It does not say ‘all payments under a plan.’ . . . The Court is satisfied that the requirement of regular income in § 109(e) is not a mandate that the debtor’s income be sufficient in amount, by itself, to fully fund the plan (or any specific portion [thereof]).”); In re Porter, Nos. 04-10932, 04-11256, 2005 WL 1168364, at *1 (Bankr. D.R.I. May 6, 2005) (unpublished) (Votolato) (Voluntary prepetition sales of homes converted unencumbered proceeds into disposable income, but debtors lack regular income when plans “pass along a relatively small, one-time, arbitrary amount of the sale proceeds to unsecured creditors, while retaining substantial equity for themselves.”).

 

91  See also discussion of best-interests-of-creditors test in § 90.1  In General: Plan Payments vs. Hypothetical Liquidation, § 90.2  Exemption Issues, § 90.3  Exclusions and Exemptions after BAPCPA, § 90.4  Nondischargeable Claims, Guaranteed Claims and Tardy Claims, § 90.5  Discount Rates and Interest If Liquidation Would Produce Dividend and § 90.6  Discount Rates and Interest after BAPCPA.

 

92  See § 12.11  Income from Leasing, Selling or Liquidating Assets.

 

93  See § 91.1  In General, § 92.1  In General, § 92.2  Projected Disposable Income: All Debtors, § 92.3  Current Monthly Income: The Baseline, § 92.4  Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3), § 93.1  Section 1325(b)(2)(A) and (B): “Amounts Reasonably Necessary to Be Expended—” When CMI Is Less Than Median Family Income, § 94.1  Big Picture: Too Many Issues, § 94.2  Netting Issues, Including Exclusion of Payments for Debts, § 94.3  Accounting for Spouses, § 95.1  In General, § 95.2  National Standards, § 95.3  Local Standards: Housing and Transportation, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.5  Other [Necessary] Expenses—Accounting and Legal Fees, § 95.6  Other [Necessary] Expenses—Charitable Contributions, § 95.7  Other [Necessary] Expenses—Child Care, § 95.8  Other [Necessary] Expenses—Court-Ordered Payments, § 95.9  Other [Necessary] Expenses—Dependent Care, § 95.10  Other [Necessary] Expenses—Education, § 95.11  Other [Necessary] Expenses—Health Care, § 95.12  Other [Necessary] Expenses—Involuntary Deductions, § 95.13  Other [Necessary] Expenses—Life Insurance, § 95.14  Other [Necessary] Expenses—Secured or Legally Perfected Debts, § 95.15  Other [Necessary] Expenses—Unsecured Debts, § 95.16  Other [Necessary] Expenses—Taxes, § 95.17  Other [Necessary] Expenses—Optional Telephones and Services, § 95.18  Other [Necessary] Expenses—Student Loans, § 95.19  Other [Necessary] Expenses—Internet Provider/E-mail, § 95.20  Other [Necessary] Expenses—Repayment of Loans to Pay Federal Taxes, § 95.21  Health and Disability Insurance, § 95.22  Family Violence Expenses, § 95.23  Five Percent More Food and Clothing, § 95.24  Elderly, Ill or Disabled, § 95.25  Administrative Expenses, Sorta, § 95.26  Education Expenses, § 95.27  Home Energy Costs, § 95.28  ABLE Program Contributions, § 96.1  Average Monthly Payments on Account of Secured Debts, § 97.1  Total Priority Debts and Divide by 60, § 98.1  Additional Expenses or Adjustments to CMI, § 99.1  In General, § 99.2  Amounts Paid by Others under § 101(10A)(B), § 99.3  Child Support, Foster Care and Disability Payments, § 99.4  Pension Loan Repayments, § 99.5  Employee Benefit Plan Contributions, § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?) and § 100.1  Applicable Commitment Period Calculation.

 

94  Watters v. McRoberts (In re Watters), 167 B.R. 146 (S.D. Ill. Apr. 7, 1994) (Beatty) (Citing In re Schnabel, 153 B.R. 809 (Bankr. N.D. Ill. Apr. 23, 1993) (Katz), Chapter 13 debtor must include all of a personal injury recovery as projected disposable income under § 1325(b)(1)(B); debtor is not allowed an “exemption” from the disposable income test.). Compare In re Tomasso, 98 B.R. 513 (Bankr. S.D. Cal. Mar. 29, 1989) (Hargrove) (Nonexempt portion of personal injury settlement received subsequent to the filing of the Chapter 13 petition would constitute “projected disposable income” for purposes of § 1325(b).).

 

95  Western United Life Assurance Co. v. Hayden (In re Hayden), 64 F.3d 833 (3d Cir. Aug. 30, 1995) (Hutchinson, Alito, Sarokin).

 

96  In re Tucker, 34 B.R. 257 (Bankr. W.D. Okla. Oct. 27, 1983) (Bohanon); In re Troyer, 24 B.R. 727 (Bankr. N.D. Ohio Nov. 12, 1982) (White); In re Bradley, 18 B.R. 105 (Bankr. D. Vt. Feb. 17, 1982) (Marro); In re Hines, 7 B.R. 415 (Bankr. D.S.D. Nov. 26, 1980) (Ecker); In re Wilhelm, 6 B.R. 905 (Bankr. E.D.N.Y. Nov. 12, 1980) (Goetz); In re Cole, 3 B.R. 346 (Bankr. S.D. W. Va. Apr. 4, 1980) (Flowers); In re Mozer, 1 B.R. 350 (Bankr. D. Colo. Nov. 28, 1979) (Keller). But see § 92.3  Current Monthly Income: The Baseline for discussion of “current monthly income” as amended by BAPCPA.

 

97  See § 92.2  Projected Disposable Income: All Debtors and § 92.3  Current Monthly Income: The Baseline.

 

98  560 U.S. 505, 130 S. Ct. 2464, 177 L. Ed. 2d 23 (June 7, 2010).

 

99  See § 92.3  Current Monthly Income: The Baseline.

 

100  See In re Jobe, 197 B.R. 823, 827 (Bankr. W.D. Tex. May 28, 1996) (Monroe) (Citing In re Commercial Credit Corp. v. Killough (In re Killough), 900 F.2d 61 (5th Cir. May 4, 1990) (Reavley, King, Johnson), “clearly the capacity of the debtor to earn more money and, thereby, pay more in plan payments has been a factor that the Fifth Circuit and other courts have considered. . . . Here, however, the record is silent as to a medical condition or a negative employment history that would preclude Mr. Jobe from increasing his income by getting a job. Quite the contrary. He is relatively young and able-bodied with no medical problems. He has had a successful career in the U.S. Army and, therefore, has marketable skills. Mr. Jobe has testified that he has no crops to tend or livestock of his own on his farm. . . . [T]hey are within easy commuting distance of a metropolitan area, Killeen, Texas. . . . Sitting idly by on a farm, the down payment for which was advanced by one’s second largest unsecured creditor, and collecting ‘early’ retirement pay from the Army while offering unsecured creditors [$.17] on the dollar hardly strikes the Court as one’s ‘best efforts.’”).

 

101  See § 11.2  When Must Debtor Have Regular Income? for discussion of the timing of the “regular income” determination.

 

102  The debt limitations in 11 U.S.C. § 109(e) are discussed in § 14.1  Dollar Amounts, § 14.2  Time for Determining Debt, § 14.3  Use of Statements and Schedules in Eligibility Calculations, § 14.4  Are Claims Split under 11 U.S.C. § 506(a)?, § 15.1  What Is Noncontingent Debt?, § 15.2  Is Partnership Debt Contingent?, § 15.3  Are Guaranties Contingent?, § 15.4  Are Contract Debts Contingent?, § 15.5  Is Tort Liability Contingent?, § 15.6  Are Claims through and against Debtor’s Corporation Contingent?, § 15.7  Are Prebankruptcy Judgments Contingent?, § 16.1  What Is a Liquidated Debt?, § 16.2  Effect of Defenses and Counterclaims, § 17.1  Disputed Debts, § 17.2  Taxes and Other Priority Claims and § 17.3  Joint Obligations of Spouses and Codebtors; Collateral That Is Not Property of the Estate.

 

103  See 11 U.S.C. § 101(10A), discussed in § 92.3  Current Monthly Income: The Baseline. See also 11 U.S.C. §§ 1322(d) and 1325(b)(4)(A)(ii), which “combine” income of the debtor and the debtor’s spouse to determine length of plan and applicable commitment period at confirmation. See also § 36.19  Form 122C-1: Statement of Current Monthly Income and § 94.3  Accounting for Spouses for discussion of accounting for the income and expenses of spouses in the projected disposable income test at confirmation.

 

104  In re McLeroy, 106 B.R. 147 (Bankr. W.D. Tenn. Oct. 24, 1989) (Kennedy). Accord In re Estalella, 101 B.R. 391 (Bankr. S.D. Fla. June 7, 1989) (Cristol).

 

105  444 B.R. 367 (Bankr. E.D. Mich. Mar. 24, 2011) (Rhodes).

 

106  See discussion of joint cases in § 10.1  Debtor Must Be an Individual; Spouses Allowed.

 

107  See § 94.3  Accounting for Spouses.

 

108  See § 92.1  In General, § 92.2  Projected Disposable Income: All Debtors, § 92.3  Current Monthly Income: The Baseline, § 92.4  Household Size and Comparison of CMI to Median Family Income: § 1325(b)(3), § 93.1  Section 1325(b)(2)(A) and (B): “Amounts Reasonably Necessary to Be Expended—” When CMI Is Less Than Median Family Income, § 94.1  Big Picture: Too Many Issues, § 94.2  Netting Issues, Including Exclusion of Payments for Debts, § 94.3  Accounting for Spouses, § 95.1  In General, § 95.2  National Standards, § 95.3  Local Standards: Housing and Transportation, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.4  Other [Necessary] Expenses—In General; All Categories, § 95.6  Other [Necessary] Expenses—Charitable Contributions, § 95.7  Other [Necessary] Expenses—Child Care, § 95.8  Other [Necessary] Expenses—Court-Ordered Payments, § 95.9  Other [Necessary] Expenses—Dependent Care, § 95.10  Other [Necessary] Expenses—Education, § 95.11  Other [Necessary] Expenses—Health Care, § 95.12  Other [Necessary] Expenses—Involuntary Deductions, § 95.13  Other [Necessary] Expenses—Life Insurance, § 95.14  Other [Necessary] Expenses—Secured or Legally Perfected Debts, § 95.15  Other [Necessary] Expenses—Unsecured Debts, § 95.16  Other [Necessary] Expenses—Taxes, § 95.17  Other [Necessary] Expenses—Optional Telephones and Services, § 95.18  Other [Necessary] Expenses—Student Loans, § 95.19  Other [Necessary] Expenses—Internet Provider/E-mail, § 95.20  Other [Necessary] Expenses—Repayment of Loans to Pay Federal Taxes, § 95.21  Health and Disability Insurance, § 95.22  Family Violence Expenses, § 95.23  Five Percent More Food and Clothing, § 95.24  Elderly, Ill or Disabled, § 95.25  Administrative Expenses, Sorta, § 95.26  Education Expenses, § 95.27  Home Energy Costs, § 95.28  ABLE Program Contributions, § 96.1  Average Monthly Payments on Account of Secured Debts, § 97.1  Total Priority Debts and Divide by 60, § 98.1  Additional Expenses or Adjustments to CMI, § 99.1  In General, § 99.2  Amounts Paid by Others under § 101(10A)(B), § 99.3  Child Support, Foster Care and Disability Payments, § 99.4  Pension Loan Repayments, § 99.5  Employee Benefit Plan Contributions, § 99.6  § 1325(b)(2)(A)(ii): Charitable Contributions (Again?) and § 100.1  Applicable Commitment Period Calculation for discussion of the projected disposable income test at confirmation.

 

109  See § 10.1  Debtor Must Be an Individual; Spouses Allowed.

 

110  See § 92.3  Current Monthly Income: The Baseline and § 94.3  Accounting for Spouses.

 

111  See § 91.2  Projected (Disposable) Income.

 

112  See 11 U.S.C. § 101(10A)(B), discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income, § 92.3  Current Monthly Income: The Baseline and § 94.3  Accounting for Spouses.

 

113  See § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.

 

114  See § 36.21  Form 122C-2: Disposable Income Calculation, § 92.3  Current Monthly Income: The Baseline and § 94.3  Accounting for Spouses for discussion of accounting for the income and expenses of spouses in the projected disposable income test after BAPCPA.

 

115  In re Bottelberghe, 253 B.R. 256, 261 (Bankr. D. Minn. Oct. 3, 2000) (O’Brien).

 

116  See, e.g., In re Sigfrid, 161 B.R. 220 (Bankr. D. Minn. Dec. 6, 1993) (Dreher) (Unemployed debtor does not have “regular income” and is ineligible, notwithstanding offer of funding from nonfiling spouse where neither the source nor the stability of the nonfiling spouse’s income is proved.). Compare In re Antoine, 208 B.R. 17 (Bankr. E.D.N.Y. Mar. 31, 1997) (Swain) (Unemployed debtor has income sufficiently stable and regular to fund a Chapter 13 plan based on nonfiling spouse’s affidavit promising to contribute to payment of the debtor’s expenses and Chapter 13 plan.).

 

117  See § 91.2  Projected (Disposable) Income and § 91.3  Reasonably Necessary for Maintenance or Support.

 

118  See 11 U.S.C. § 101(10A)(B), discussed in § 36.19  Form 122C-1: Statement of Current Monthly Income and § 92.3  Current Monthly Income: The Baseline.