Chapter 13 Payments in a 100% Plan
My question involves bankruptcy in the state of: Ga
We are in the process of filing for Chapter 13. Before trustee's fees our amount owed is 227,592. This includes a second and third mortgage. We are surrendering the home. We are above the median income so we will be in a 60 month plan. My question is this. To pay the amount over 60 months, my payments would be about 3800 plus trustee's fee. My Attorney says my payments will be 5000.00 because of our discretionary income. If I pay 5000 for 60 months, I will have paid close to 70000 more than my debts.
I have read a couple of opinions from judges that have said that you either pay 100% OR all of your discretionary income. My Attorney says it will be paid off sooner. I am probably looking at this the wrong way but it seems that in this case the Court would be forcing me to go against the fact that the law says we must be in a 60 month plan. !200 a month is a big deal in our finances with two kids in college, both of which are playing NCAA sports and are not allowed to work. Their scholarships are only partial. Sorry, That was probably too much info.
Thanks for any clarity you can give.
Re: Chapter 13 Payments in a 100% Plan
It's typical for a Chapter 13 plan to require repayment of all disposable income, even if the debtor would prefer to complete repayment over a longer period.
Re: Chapter 13 Payments in a 100% Plan
Are all Bankruptcy courts different? By researching, there are many opinions by Judges that say you either pay 100% or all of your disposable income. Are these opinions not carried through the whole Federal system? We still have no choice but to file but seems a little unfair that in certain jurisdictions people are treated differently. Thanks for taking time to answer
Re: Chapter 13 Payments in a 100% Plan
You will find decisions that differ in their interpretation of <a href="http://www.gpo.gov/fdsys/pkg/USCODE-2011-title11/html/USCODE-2011-title11-chap13-subchapII-sec1325.htm">11 U.S.C. Sec. 1325</a>(b)(1). You should look for opinions from your district court in Georgia, or from the 11th Circuit Court of Appeals.
Re: Chapter 13 Payments in a 100% Plan
I found a Supreme court ruling in Hamilton v Lanning June 2010 that dealt with disposable income. Even though it was not the overriding issue, both the opinion and dissenting opinion in the body of the opinion, said that "§1325(b)(1) requiresthe debtor either to pay unsecured creditors in full or topay all “projected disposable income” to be received by the debtor over the duration of the plan." Would this take precedent over all jurisdictional rulings or could it at least be used in an argument if necessary? I am doing this resaearch because my Attorney says that the Trustee will not buy this argument. Thanks again