Kevin Harman v. Richard Fink

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
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No. 10-6025
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In re: Kevin William Harman; *
Rosalind Mary Harman, *
*
Debtors. *
*
Kevin William Harman; Rosalind * Appeal from the United States
Mary Harman, * Bankruptcy Court for the Western
* District of Missouri
Debtors – Appellants, *
*
v. *
*
Richard V. Fink *
*
Trustee – Appellee. *
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Submitted: August 24, 2010
Filed: September 3, 2010 (Corrected September 7, 2010)
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Before KRESSEL, Chief Judge, SCHERMER and MAHONEY, Bankruptcy
Judges.
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KRESSEL, Chief Judge.
1
Kevin and Rosalind Harman appeal from the bankruptcy court’s 1 order
confirming their chapter 13 plan over their objection. We affirm.
BACKGROUND
Kevin and Rosalind Harman filed a joint chapter 13 petition on July 27,
2009. Although still married, they maintain separate households. On September
21, 2009, they filed separate B22C (Statement of Current Monthly Income) forms,
which detailed their incomes and household expenses separately.
On July 27, 2009, the Harmans filed a chapter 13 plan. That plan provided
that they would jointly pay $155 per month from future earnings to the chapter 13
trustee for thirty-six months. On September 25, 2010, Richard Fink, the chapter 13
trustee, filed a motion to deny confirmation of their chapter 13 plan on the basis
that the plan violated 11 U.S.C. § 1325(b) because: 1) the debtors filed separate
B22C forms, when they should have filed one joint B22C form; 2) the debtors
understated Rosalind’s income; 3) the debtors are above-median and should have
filed an above-median form B22C; 4) the debtors failed to explain their unusually
high transportation expense; 5) they appeared to have overestimated their monthly
daycare expenses; 6) they budgeted an expense for life insurance but listed no life
insurance policies on their Schedule B; and 7) because the debtors are separated,
they should have each filed a separate Schedule J. By October 22, 2009, the day of
the first hearing on the trustee’s motion to deny confirmation, the parties had
resolved all of the issues raised in the trustee’s motion except for one: whether the
debtors were required to file a single, joint B22C form, or whether they were
permitted to file separate forms. The significance of this issue to the parties is that
they believe that the form determines whether the debtors are above- or below-
median income, and consequently whether they may confirm a 36-month plan
rather than a 60-month plan. The parties agreed that when considered separately,
1
The Honorable Dennis R. Dow, Chief Judge, United States
Bankruptcy Court for the Western District of Missouri.
2
each debtor’s current monthly income is below median, but when considered
together, their combined current monthly income is above median.
On November 19, 2009, the court granted the trustee’s motion and denied
confirmation of the Harmans’ plan on the basis that they needed to include both
debtors’ income in their calculation of their current monthly income, and that when
their incomes were correctly calculated, they were above median and could not
confirm a 36- month plan.
On November 27, 2009, the Harmans filed a joint B22C form and another
chapter 13 plan. Their combined incomes required an applicable commitment
period of 60 months. On December 14, 2009, the trustee filed a motion to deny
confirmation of the plan. The debtors filed an objection to their own plan on
December 28, 2009, and filed an amended plan on January 19, 2010, to which the
trustee again objected. The court denied confirmation of the new plan and ordered
a confirmable plan to be filed within twenty-one days.
On February 26, 2010, the Harmans filed another amended plan. On March
10, 2010, they filed an objection to their plan. The trustee filed a motion to deny
confirmation. The court held a hearing on April 15, 2010. The court overruled the
Harmans’ objection to confirmation of their plan and then denied the trustee’s
objection to the plan as moot. On May 4, 2010, the court issued an order
confirming the February 26 chapter 13 plan, which provided that the Harmans
would pay $155.00 per month for fifty-five 2 months. The Harmans appeal from
that order. See Zahn v. Fink (In re Zahn), 526 F.3d 1140, 1141 (8th Cir. 2008)
(debtor had standing to appeal from an order confirming her own chapter 13 plan).
2
The trustee does not object to the debtors’ proposal of a fifty-five
month plan rather than a sixty-month plan.
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Standard of Review
The issue of whether joint debtors must combine their income for the
purposes of determining the applicable commitment period for a chapter 13 plan is
an issue of law, which we review de novo. The CIT Group/Equipment Financing,
Inc. v. M & S Grading, Inc. (In re M & S Grading, Inc.), 307 F.3d 898, 899 (8th
Cir. 2006); Bankr. R. 8013.
ANALYSIS
The debtors and the trustee ask whether chapter 13 joint debtors who
maintain separate households must submit a single Form B22C (Statement of
Current Monthly Income). This form, the parties argue, determines the debtors’
current monthly income, which in turn determines the applicable commitment
period for the debtors’ chapter 13 plan. The parties’ belief that the form
determines the outcome of this appeal is incorrect. The bankruptcy rules require
that “a debtor in a chapter 13 case [. . .] file a statement of current monthly income,
prepared as prescribed by the appropriate Official Form, and, if the current
monthly income exceeds the median family income for the applicable state and
household size, a calculation of disposable income made in accordance with §
1325(b)(3), prepared as prescribed by the appropriate Official Form.” Fed. R.
Bankr. P. 1007(b)(6). The applicable form in this case is the B22C form.
However, it is ultimately the statute, not the form, which determines the applicable
commitment period. The official forms “shall be construed to be consistent with
[the Federal Rules of Bankruptcy Procedure] and the Code.” Fed. R. Bankr. P.
9009.
11 U.S.C. § 1325 provides that a chapter 13 plan may not be approved over
the objection of the trustee or the holder of an allowed secured claim unless either
“the value of the property to be distributed under the plan on account of such claim
is not less than the amount of such claim” or “the plan provides that all of the
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debtor’s projected disposable income to be received in the applicable commitment
period beginning on the date that the first payment is due under the plan will be
applied to make payments to unsecured creditors under the plan.” 11 U.S.C. §
1325(b)(1)(A) and (B). Because the debtors have proposed a “base plan” rather
than a plan that pays a one hundred percent dividend to non-priority unsecured
creditors, they must satisfy § 1325(b)(1)(B). “Applicable commitment period” is
defined in § 1325(b)(4):
(A) subject to subparagraph (B), [the applicable commitment period]
shall be—
(i) 3 years; or
(ii) not less than 5 years, if the current monthly income of the
debtor and the debtor’s spouse combined, when multiplied by
12, is not less than—
(I) in the case of a debtor in a household of 1 person, the
median family income of the applicable State for 1
earner;
(II) in the case of a debtor in a household of 2, 3, or 4
individuals, the highest median family income of the
applicable State for a family of the same number or fewer
individuals; or
(III) in the case of a debtor in a household exceeding 4
individuals, the highest median family income of the
applicable State for a family of 4 or fewer individuals,
plus $625 per month for each individual in excess of 4;
and
(B) may be less than 3 or 5 years, whichever is applicable under
subparagraph (A), but only if the plan provides for payment in full of
all allowed unsecured claims over a shorter period.
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11 U.S.C. § 1325(b)(4) (emphasis added). Section 1325(b)(4) does not refer to the
B22C form. The statute clearly requires a debtor to include his or her spouse’s
current monthly income when calculating the applicable commitment period under
§ 1325(b)(4). The statute provides no exception for married debtors who maintain
separate households. Furthermore, “current monthly income” is a defined term.
Section 101(10A)(A) specifically provides that in a joint case, current monthly
income includes the income that a debtor and the debtor’s spouse received during
the prescribed period. 11 U.S.C. § 101(10A)(A). The plain language of the
Bankruptcy Code therefore requires the debtors to combine their current monthly
incomes for the purpose of calculating the applicable commitment period. It
follows that married debtors who file a joint bankruptcy petition should file a
single Form B22C regardless of whether they maintain separate households.
CONCLUSION
Because the bankruptcy court was correct that the current monthly income of
both spouses must be used to calculate the applicable commitment period, we
affirm the bankruptcy court’s order confirming the debtors’ chapter 13 plan.
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