THOMAS L. PERKINS, Chief Judge.
The matter before the Court is the confirmation of the Chapter 13 plan filed by the Debtor, Lori D. Stenstrom (DEBTOR), and the objection by Michael D. Clark, Chapter 13 Trustee (TRUSTEE). Confirmation will be denied.
The facts are not in dispute.
The Chapter 13 plan filed by the DEBTOR proposes to pay $425 per month for 60 months with a proposed dividend of 24% to unsecured creditors. According to the plan, the payments on the motorhome and the fifth wheel are to be made by the co-debtor. Along with her petition, the
On November 16, 2009, Citizens Banking Corporation filed a motion for relief from the co-debtor stay, alleging that the plan provides that the payments will be made by the co-debtor. The DEBTOR did not respond to the motion and an order granting the requested relief was entered by the Court on December 8, 2009. A confirmation hearing was held on December 21, 2009.
Section 1325(b)(1)(B) of the Bankruptcy Code provides that if the trustee or the holder of an allowed unsecured claim objects to confirmation, the court cannot confirm the plan unless, as of its effective date:
11 U.S.C. § 1325(b)(1)(B). Section 1325(b)(2) defines "disposable income" to mean "current monthly income," with certain adjustments, less amounts reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. If the debtor has current monthly income on an annualized basis that exceeds the applicable median family income for the state, the "amounts reasonably necessary to be expended" are to be determined in accordance with Section 707(b)(2)(A) and (B). 11 U.S.C. § 1325(b)(3). Section 707(b)(2)(A)(ii)(I) provides:
The Seventh Circuit Court of Appeals has only addressed the application of means test deductions in two cases and each is claimed by one of the parties in support of their opposing positions. In In re Ross-Tousey, 549 F.3d 1148 (7th Cir. 2008), in the context of determining whether a presumption of abuse arose warranting dismissal or conversion of a chapter 7 case, the court held that a debtor was entitled to a vehicle ownership expense deduction for a vehicle that is not encumbered by a debt or lease. Adopting the "plain language" approach, the court held that the vehicle ownership deduction which is "applicable" to a debtor is the one that corresponds to the debtor's geographic region and number of cars, regardless of whether that deduction is an actual expense which the debtor incurs. Id. at 1157-58. In In re Turner, 574 F.3d 349 (7th Cir.2009), a Chapter 13 case, the court held that monthly payments on collateral which the debtor intends to surrender could not be deducted in determining the debtor's projected disposable income. Because the mortgage payment would "disappear" before confirmation, the court regarded the mortgage debt as a "phantom" deduction, determining that it is proper to take into consideration changes which have occurred in the debtor's financial circumstances.
The TRUSTEE relies on Turner, likening the expenses taken by the DEBTOR for a second vehicle not in her possession to the deduction for mortgage payments on property to be surrendered, which the court regarded as artificial. The DEBTOR claims that Ross-Tousey is controlling, and that the relevant inquiry for the Court here is only to determine the number of vehicles owned by the DEBTOR on the day the petition was filed.
The issue here is two-fold. The first is whether the DEBTOR is entitled to an ownership deduction and an operating expense deduction in calculating her disposable income on Form 22C, as provided by Section 1325(b)(3). Second, even if those deductions may be properly deducted on Form 22C, the issue becomes whether the DEBTOR has committed her projected disposable income to the plan, as provided by Section 1325(b)(1)(B). While the first may be generally categorized as a Ross-Tousey issue, the second squarely presents a Turner question. And in Chapter 13 cases, under Turner, the second issue entirely eclipses the first.
This Court does not agree with the DEBTOR'S limited interpretation of Turner, but considers it controlling here. The court in Turner considered the calculation of "disposable income" as only a starting point for determining the debtor's "projected disposable income."
Id. at 355.
The court rejected the mechanical approach employed by courts such as In re Kagenveama, 541 F.3d 868 (9th Cir.2008). The court adopted the reasoning of the Eighth Circuit in In re Frederickson, 545 F.3d 652 (8th Cir.2008) that the means test calculation of disposable income is a "starting point" for determining projected disposable income and that changes in the debtor's financial circumstances that are known as of the time of confirmation can and should be considered.
In contending that Turner only applies to secured debt payments, the DEBTOR overlooks the interrelationship between
Thus, elimination of a "fixed" expense may not only affect the deductions taken by the debtor for secured debt payments, but the entitlement to standard mortgage or transportation expenses as well. Generally, the two go hand in hand, at least as applied to mortgage debts and car loans. There can be little question that under Turner, the proposed surrender of a second vehicle by a debtor would result in an adjustment being made to the debtor's projected disposable income, based not only on the amount of the secured expense deduction taken in connection with that vehicle, but also upon any "phantom" expense resulting from the standardized transportation ownership cost and operating expense attributed to that vehicle.
For purposes of determining the DEBTOR'S projected disposable income, her disclaimer of interest in and liability for the motorhome must be treated the same as a surrender of collateral. The DEBTOR forthrightly admits that the co-debtor has exclusive possession, use and enjoyment of the motorhome and sole responsibility for the debt service payments and all other expenses associated therewith. Although her legal liability still exists, the DEBTOR pays nothing. In effect, her status is relegated to that of a guarantor. Turner directs courts not to disregard undisputed information that directly affects how much the DEBTOR can afford to pay.
The erroneousness of the DEBTOR'S position is spotlighted by her failure to take a corresponding deduction for future payments on the motor home. Presenting this discrepancy as a perk to her creditors, the DEBTOR relies on In re Quigley, 391 B.R. 294 (Bankr.N.D.W.Va.2008), asserting that it would be proper for her to take such deductions on both the motorhome and the fifth wheel. The DEBTOR'S reliance on Quigley, is misplaced, however. In Quigley, although the court permitted the debtor to take an ownership deduction for a vehicle which the codebtor was using and on which he was making the payments, the court required the debtor to include, as part of her current monthly income, the amount of the secured payments made by the nondebtor.
More importantly, both the analysis and result in Quigley run contrary to Turner and must be disregarded. Employing a Turner-like approach, the court in In re
Whether or not expense deductions may be taken on Form 22C for the motorhome, the line 59 figure is only a starting point for determining the DEBTOR'S projected disposable income, as dictated by Turner. It is undisputed that the DEBTOR has no actual expenses related to the motorhome; as to the DEBTOR, they are "phantom" expenses. This information may not be ignored for purposes of determining how much the DEBTOR is actually able to pay under a Chapter 13 plan. Since the proposed plan does not properly account for this reality, it may not be confirmed. Confirmation of the plan will be denied and a status hearing will be scheduled.
This Opinion constitutes this Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate Order will be entered.
According to the TRUSTEE'S recapitulation of the DEBTOR'S testimony at the first meeting of creditors, the motorhome and the fifth wheel belong to the codebtor and the codebtor makes the monthly payments and pays the operating expenses on both. The DEBTOR and the co-debtor are joint obligors on the retail installment contract evidencing the purchase money loan for the motorhome, and are shown on the title as joint owners residing at the same address at that time. The codebtor no longer resides with the DEBTOR.