From my friend and colleague Robin Miller, publisher of BAPCPA Abstracts, comes this thoughtful and well-researched guide concerning the calculation of a Chapter 13 debtor’s projected disposable income under Code § 1325(b). Most consumer bankruptcy lawyers realize that courts disagree as to both how income and expenses are to be calculated (Form 22C, Schedules I and J, or some combination thereof) and as of when the calculation is to be performed.

This Research Guide tackles the following:

• attempts to collect all the cases discussing the calculation of projected disposable income insofar as the discussion is specific to Chapter 13
• review how a court applies § 1325(b) to the numbers generated by the debtor under § 101(10A) and § 707(b)(2)
• collects the cases discussing the treatment of a Chapter 13 debtor’s retirement plan contributions and loan repayments, and those cases determining the classes of unsecured creditors comprehended by Code § 1325(b)(1)(B), requiring a debtor to pay all of his or her projected disposable income to “unsecured creditors” if those creditors are not paid in full.

Robin has graciously allowed me to make this guide available to my readers and visitors. I think you’ll find it a useful tool in your Chapter 13 practice.

Download the guide by clicking here.

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In the recent case of in-re-eady.pdf, Adv. Pro. No. 07-90271-jm (S.D. Cal. 2008) the court excused a creditor’s alleged violation of the discharge injunction and granted summary judgment against the debtor. The Court found that the acts of the defendant, alleged by the plaintiff to be violations of 11 U.S.C. § 524, were conducted by defendant with a good faith and reasonable belief that such acts were not prohibited by the bankruptcy discharge injunction in the plaintiffs bankruptcy case.

This flies in the face of the bankruptcy discharge injunction, and the prohibitions of the US Bankruptcy Code. What the court in Eady failed to realize was the the Code prohibits collection activities against a debtor once a discharge has been issued. It is incumbent upon a creditor to ensure that it refrains from such prohibited activities, and the argument put forth here amount to what I like to call the, “Stupidity Rule.”

If you’re too stupid to read the law, dear creditor, that’s alright - we forgive you.

The defendant in this case, however, is not stupid. In fact, the website maintained by the creditor clearly states that its entire business model centers around bankruptcy.

How can such a defendant be deemed too stupid to know the law, and the consequences of its actions?

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You may not ordinarily vote in the NACBA elections. Don’t know the candidates, don’t think it’s relevant to your practice, don’t have time.

That’s why each year only 400 of the 3,000 NACBA members vote in the elections.

The result never represents the needs of the members.

This year needs to be different.

Why? Because the future of consumer bankruptcy practice is in your hands. You pay dues to an organization, and it’s important to have that organization reflect your needs.

Without your input, NACBA is nothing more than a waste of space and time.

You need to vote. And to know who gets your vote, you need to be informed.

What do you care about? Lobbying? Technology? Managing your office? Getting NACBA to help you in day-to-day issues with your local judges and trustees? Education?

I have issued a challenge to the candidates.

It’s called “30 Questions.”

Each candidate will choose 10 questions for the other candidate to answer. The members of NACBA will submit an additional 10 questions.

No holds barred, folks. Any serious question is fair game.

I will call each candidate separately and ask the questions. The entire conversation will be recorded and disseminated to the members online via mp3 audio.

To wrap it up, I will ask 10 questions. They will be the following:

1. What is your educational background?

2. How large is your firm or organization?

3. How long have you been a consumer bankruptcy attorney?

4. How many cases do you file on an average month (or year)?

5. Where do you practice law?

6. How long have you been a member of NACBA?

7. What has been your greatest professional achievement thus far in your career?

8. If you were the “King of NACBA” for one day and one day only, answering to no other individual or group for your actions, what is the single thing that you would do to better the organization?

9. Do you believe that the current vetting process for new members is sufficient to protect the interests of the membership?

10. What is the single most important issue confronting the members of NACBA at this time?

Questions submitted by the members will be selected at random, but both candidates will answer the same questions.

Candidates will not be given the questions (except for the above) until they are asked.

The election is important.

Questions should be posed to me by email (bankruptcy [at] gmail.com) Friday, April 11, 2008 at 5:00pm Eastern time.

I will be doing Q&A sessions with each candidate next week, and will post the audio of our conversations shortly thereafter.

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