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Coop v. Frederickson: BANKRUPTCY- above-median chapter 13 plan must go 5 years

United States Court of Appeals
No. 07-3391
In re: Craig Matthew Frederickson, *
Debtor. *
______________________ *
David D. Coop, *
Appellant, * Appeal from the United States
* Bankruptcy Appellate Panel
v. * for the Eighth Circuit.
Craig Matthew Frederickson, *
Appellee. *
______________________ ** National Association of Consumer *
Bankruptcy Attorneys, *
Amicus on Behalf *
of Appellee. *
Submitted: April 14, 2008
Filed: October 27, 2008
Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
WOLLMAN, Circuit Judge.
1Disposable income is defined as the current monthly income received by
the debtor . . . less amounts reasonably necessary to be expended . . . . 11 U.S.C.
1325(b)(2). Current monthly income is based upon historical figures, namely, the
average monthly income the debtor received during the six months prior to filing for
bankruptcy. 11 U.S.C. 101(10A). For above-median debtors, [a]mounts
reasonably necessary to be expended are calculated in accordance with
subparagraphs (A) and (B) of 11 U.S.C. 707(b)(2). 11 U.S.C. 1325(b)(3).
This appeal requires us to examine the meaning and application of the phrases
projected disposable income and applicable commitment period in 11 U.S.C.
1325(b), as amended by the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 (BAPCPA). The specific question before us is whether an abovemedian
Chapter 13 debtors plan must extend for five years, i.e., the length of the
applicable commitment period, or whether a bankruptcy court can confirm a shorter
plan period when the debtor has a negative disposable income as defined in 11
U.S.C. 1325(b)(2) and calculated on Form 22C. The bankruptcy court held that a
shorter plan period is permissible and thus confirmed Craig Matthew Fredericksons
(the debtors) proposed forty-eight-month plan. In re Frederickson, 368 B.R. 825
(Bankr. E.D. Ark. 2007). The Bankruptcy Appellate Panel for the Eighth Circuit
affirmed. Coop v. Frederickson (In re Frederickson), 375 B.R. 829 (B.A.P. 8th Cir.
2007). Having jurisdiction under 28 U.S.C. 158(d), we reverse.
I. Background
The facts of this case are not in dispute. Fredericksons current monthly income
is above the median income level for his state of residence, and therefore he is an
above-median debtor. See 11 U.S.C. 1325(b)(3). His disposable income, defined
in 11 U.S.C. 1325(b)(2) and calculated on Form 22C,1 is a negative amount ($ -
95.49). The parties agree that because of this calculation, Frederickson has no
projected disposable income as referred to in 11 U.S.C. 1325(b)(1)(B).
Nevertheless, the calculations on Fredericksons Schedule I (current income) and
Schedule J (current expenditures) indicate that he has a monthly net income of 6.
Frederickson proposed a plan to pay his unsecured creditors 0 per month for fortyeight
months. Under this plan, Fredericksons unsecured creditors will receive
approximately sixty-one percent of their claims. The trustee objected to this plan
because it did not extend for the full five-year applicable commitment period
referred to in 11 U.S.C. 1325(b)(4)(A)(ii). If the plan extended for five years, it is
estimated that Fredericksons unsecured creditors would receive almost all, if not all,
of their claims.
A bankruptcy court may confirm a Chapter 13 debtors plan if the requirements
of 11 U.S.C. 1325(a) are satisfied. If the trustee or the holder of an allowed
unsecured claim objects to the confirmation of the plan, however, the bankruptcy
court may approve the plan only if (A) the plan provides for payment of 100% of
claims, or (B) the plan provides that all of the debtors 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).
This statutory rubric works when an above-median debtors disposable income
calculated under Form 22C results in a positive number. But because Frederickson
has a negative disposable income as calculated on Form 22C and the trustee objected
to the proposed plan, the bankruptcy court was required to weigh conflicting
interpretations of the relevant portions of the statute. One possible interpretation of
11 U.S.C. 1325(b)(1)(B) is that if the debtor does not have any disposable income,
and therefore does not have any projected disposable income, the debtors proposed
plan can be confirmed regardless of the amount proposed to be paid and the length of
the plan because the amount of projected disposable income to be received in the
2Of course, the good faith, feasibility, and other general requirements of 11
U.S.C. 1325(a) must still be met.
applicable commitment period is .2 A second possible interpretation is that the
applicable commitment period, as defined in 11 U.S.C. 1325(b)(4) and used in 11
U.S.C. 1325(b)(1)(B), is a temporal requirement that must be met even if the debtor
does not have any projected disposable income.
The parties have stipulated that Frederickson does not have any projected
disposable income and therefore there is no minimal amount which must be paid to
the general unsecured creditors. See In re Frederickson, 368 B.R. at 828 n.5. This
concession assumes that the requirement set forth in 11 U.S.C. 1325(b)(1)(B) creates
a minimum payment requirement and that no minimum exists if the debtor has no
projected disposable income. Accordingly, the bankruptcy court determined that a
debtors proposed plan could be confirmed over the trustees objections despite the
fact that it does not extend for the full applicable commitment period because there
is no minimum payment and therefore the applicable commitment period does not
apply. At the same time, the bankruptcy court determined that when a debtor has
positive disposable income, the applicable commitment period applies and creates
a temporal requirement, i.e., a minimum plan length requirement. Thus, the
bankruptcy court held that when a trustee objects to an above-median debtors
proposed plan in situations in which the debtor has positive disposable income, the
plan cannot be confirmed unless it provides for payment of all projected disposable
income over a period of five years, 11 U.S.C. 1325(b)(1)(B), or the plan provides
for payment in full of all allowed unsecured claims, 11 U.S.C. 1325(b)(4)(B).
Judge Federman dissented from the bankruptcy appellate panels affirmance,
concluding that the applicable commitment period is always a temporal
requirement. Citing the House Report on 1325, he wrote that
BAPCPA was intended by Congress to require that higher income
debtors either pay 100% of unsecured claims, or make payments for a
period of 5 years. While there is scant legislative history for most of the
BAPCPA provisions, the House Report on 1325(b) makes clear that
the applicable commitment period is a durational requirement for the
Chapter 13 plan, and not just, as the majority holds, a multiplier.
In re Frederickson, 375 B.R. at 837 (Federman, J., dissenting).
II. Discussion
Because we are reviewing only legal conclusions made by the bankruptcy court,
our review is de novo. DeBold v. Case, 452 F.3d 756, 761 (8th Cir. 2006).
To determine the congressional intent of statutory text, we begin by looking at
the text itself. Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). Generally, when the
statutory text is plain and does not lead to an absurd result, the sole function of the
courts is to enforce the plain language of the statute. Id. When the text leads to a
result that is seemingly at odds with the congressional intent of the text, however, the
plain language is not conclusive. United States v. Ron Pair Enters., Inc., 489 U.S.
235, 242 (1989).
Along with these general rules of statutory construction, the Supreme Court has
also acknowledged that in determining the true congressional intent of a statute it can
be appropriate to consider all available evidence of that intent rather than limiting the
analysis to the text of the statute. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S.
50, 65-66 (2004) (Stevens, J., concurring) (citing Wisc. Pub. Intervenor v. Mortier,
501 U.S. 597, 611 n.4 (1991), and other Supreme Court cases). Thus, when the
statutory text is not altogether clear and there is more than one plausible interpretation
of the text, it is proper to consult extratextual sources to determine congressional
intent. Id.; see also id. at 66-67 (Kennedy, J., concurring).
3At oral argument, counsel for the trustee indicated that she had already seen
one Chapter 13 case close out after seven months under the bankruptcy courts
holding in this case.
We are presented with that very situation in the case before us. The debtor and
the trustee have presented possible interpretations of the text that are supported by
authority. Indeed, the differing outcomes of the bankruptcy courts that have examined
this issue to date indicate that the language of 11 U.S.C. 1325(b) is not at all clear.
See In re Laroy Davis, 392 B.R. 132, 137-41 (Bankr. E.D. Pa. 2008) (outlining cases
that are divided on how to calculate a debtors projected disposable income); id. at
143-46 (outlining cases that are divided on whether the applicable commitment
period is a monetary or temporal requirement); see also In re Green, 378 B.R. 30, 33
(Bank. N.D. N.Y. 2007) (noting that BAPCPA rendered 1325(b) a murky stew of
conflicting judicial opinions about the plain language meaning of common words and
phrases contained in the statute itself and the Congressional intent behind it); In re
Slusher, 359 B.R. 290, 300 (Bankr. Nev. 2007) (Although apparently
straightforward, as with much of BAPCPA, the text Congress used plausibly lends
itself to at least two different interpretations of what exactly applicable commitment
period means.).
Neither interpretation fits neatly into the structure of 11 U.S.C. 1325(b) and
simultaneously complies with the overarching purpose of BAPCPA. Frederickson
argues that the applicable commitment period is not a temporal requirement if the
debtor has no disposable income as calculated on Form 22C, even if the debtor has
disposable income as calculated on Schedules I and J. The resulting outcome of this
interpretation is that an above-median debtor who has more actual income than actual
expenses, after taking into consideration payment to secured creditors, can have his
proposed plan approved without making any payments to unsecured creditors and can
close out his plan in a matter of months rather than staying in the system for the full
applicable commitment period of sixty months.3 This result does not comport with
the clear congressional intent of BAPCPA, which was enacted to ensure that debtors
4Assuming, of course, that the plan met all other requirements, such as good
faith. See 11 U.S.C. 1325(a); Laroy Davis, 392 B.R. at 134-35 (discussing
confirmation requirements in 11 U.S.C. 1322 and the nine confirmation provisions
in 11 U.S.C. 1325(a)).
repay creditors the maximum they can afford. See In re Gonzalez, 388 B.R. 292,
309 (Bank. S.D. Tex. 2008) (quoting H.R. Rep. No. 109-31, pt. 1, at 2 (2005), U.S.
Code Cong. & Admin. News 2005, pp. 88, 89); see also In re Hardacre, 338 B.R. 718,
725 (Bankr. N.D. Tex. 2006) (The means test was intended to ensure that those who
can afford to repay some portion of their unsecured debts [be] required to do so.
(alteration in original) (quoting 151 Cong. Rec. S2470 (March 10, 2005)); Henry E.
Hildebrand, III, Impact of the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 on Chapter 13 Trustees, 79 Am. Bankr. L.J. 373, 373, 396 n.3 (2005)
(noting that BAPCPA represented a shift in public policy from making bankruptcy
a more effective remedy for the unfortunate consumer debtor, to restoring personal
responsibility and integrity to the bankruptcy system (internal quotations omitted)).
The trustee argues that applicable commitment period in subsection (b)(1)(B)
is a temporal requirement because in subsection (b)(4) that phrase is defined in
durational terms rather than as a minimum payment requirement. This interpretation
is congruous with the overall structure of the section when the debtors Form 22C
calculation results in a positive disposable income. But when the debtors disposable
income is zero or a negative amount, we must either ignore Congresss definition of
disposable income, which the statute indicates shall be applied for above-median
debtors, or we must read a temporal requirement into the language of 11 U.S.C.
1325(b)(1)(B) by disallowing the confirmation of a proposed plan even though the
debtors projected disposable income to be received in the applicable commitment
period, i.e., , is paid to the debtors unsecured creditors under the plan. Such an
interpretation leads to anomalous results because a debtors proposed plan to pay
each month for sixty months could be approved, while a plan that proposed to pay
00 per month for fifty-nine months could not be approved.4 See In re Nance, 371
5We acknowledge that the trustee in this case has conceded that because
Frederickson does not have any disposable income as defined in 11 U.S.C.
1325(b)(2), he does not have a minimum payment requirement under 11 U.S.C.
1325(b)(1)(B). Appellants Br. at 9. This concession assumes that the definition of
projected disposable income is the same as the definition of disposable income.
Because we conclude otherwise, we must consider the proper interpretation of
projected disposable income.
B.R. 358, 371-72 (Bankr. S.D. Ill. 2007) (acknowledging that anomalies result from
requiring a sixty-month plan period for an above-median debtor who has negative
disposable income). This result, like the outcome of the debtors interpretation of the
statute, ultimately does not achieve the congressional intent of requiring above-median
debtors to pay their unsecured creditors the maximum they can afford in every case,
because a debtor could propose a plan to pay per month despite the fact that he can
actually afford a larger payment.
In resolving this issue, we look to Congresss intent that under BAPCPA
increased payments will flow from above-median debtors to their unsecured creditors.
Accordingly, we must determine not only the meaning of the phrase applicable
commitment period, but also the phrase projected disposable income.5
In enacting BAPCPA, Congress reduced the amount of discretion that
bankruptcy courts previously had over the calculation of an above-median debtors
income and expenses. Richard S. Stolker, Debtors Perspective: BAPCPA Issues, 40
Md. B.J. 22, May/June 2007, at 23. In determining a debtors projected disposable
income pre-BAPCPA, the bankruptcy court calculated a debtors disposable income
based on Schedules I and J and then multiplied that number by the number of months
in the plan. Laroy Davis, 392 B.R. at 136; In re Kolb, 366 B.R. 802, 808-09 (Bankr.
S.D. Ohio 2007) (discussing the pre-BAPCPA calculation of disposable income and
projected disposable income). This process remains the same post-BAPCPA for
below-median debtors. Kolb, 366 B.R. at 809-12. But for above-median debtors,
Congress wanted to eliminate what it perceived as widespread abuse of the system by
curtailing the bankruptcy courts discretion and requiring debtors to pay more to their
unsecured creditors. See id. at 812 (noting Congresss intent to reduce judicial
discretion over the calculation of an above-median debtors expenses). Accordingly,
Congress rigidly defined disposable income in 11 U.S.C. 1325(b)(2). At the same
time, however, Congress did not define projected disposable income as used in 11
U.S.C. 1325(b)(1)(B).
As a result, the proper calculation for projected disposable income is not
clear. We could postulate that a debtor who had 7 in disposable income each
month in the six months prior to filing for bankruptcy, as calculated on Form 22C,
will have 7 each month in disposable income in the future. Then, using the same
method that was used pre-BAPCPA, we would simply multiply the debtors
disposable income by the number of months in the applicable commitment period
to determine how much projected disposable income the debtor will likely receive
in that period of time. Such a calculation works if the debtor has a positive
disposable income. If the debtors disposable income is negative, however,
despite the fact that the debtor could afford to make payments to his unsecured
creditors, it is necessary to determine whether the applicable commitment period is
a temporal requirement or a monetary requirement.
This problem arises because disposable income is based upon a debtors
historical income and IRS tables that provide regional averages for common expenses.
This calculation may lead to an accurate projection of a debtors projected disposable
income, but it is not necessarily an accurate projection for many Chapter 13 debtors.
The historical calculation does not take into consideration a debtors current financial
situation, which may have changed substantially between the point in time six months
before filing bankruptcy and the point in time when the debtors Chapter 13 plan is
being proposed. These changes could be the result of, inter alia, a promotion at work,
the loss of a job, the acquiring of a second job, or increased medical expenses. See,
e.g., In re Hanks, 362 B.R. 494, 496 (Bankr. Utah 2007) (debtor lost his job
prepetition and was unable to obtain comparably paying employment); In re Grady,
343 B.R. 747, 750 (Bankr. N.D. Ga. 2006) (debtors heart condition prevented her
from working and thus reduced her actual monthly income). Furthermore, the
debtors actual expenses may be far less than the regional averages that are assumed
in the disposable income calculation. As a result, a debtors disposable income,
as calculated on Form 22C, is not the same as the debtors actual projected
disposable income. See Kolb, 366 B.R. at 804-05 (BAPCPAs definition for a
debtors disposable income does not reflect a debtors present actual income or
actual expenses).
Thus, a distinction can be drawn between a debtors disposable income,
which is calculated solely on the basis of historical numbers and regional averages,
and a debtors projected disposable income, which necessarily contemplates a
forward-looking number. Under this interpretation, bankruptcy courts will continue
to have some discretion over the calculations of each individual debtors financial
situation, with the result that the debtors projected disposable income will end up
more closely aligning with reality. This interpretation also comports with the
congressional intent that above-median debtors pay the maximum they can afford and
results in making workable the application of 11 U.S.C. 1325(b)(1)(B) for abovemedian
debtors who have positive disposable income, as well as for above-median
debtors with negative disposable income. If we read the word projected out of
11 U.S.C. 1325(b)(1)(B) and rely solely on the calculation of disposable income
on Form 22C, the outcome involves anomalous, and perhaps even absurd, results. See
Gonzalez, 388 B.R. at 304-05, 308-09 (rigid adherence to a debtors historical income
would produce results inconsistent with the congressional purpose of BAPCPA and
inconsistent with common sense); see also Hardacre, 338 B.R. at 723 (Congress must
have intended disposable income to be something different than projected
disposable income or it would have used the same language in both places in the
statute). While some debtors who could actually afford to pay off some or all of their
unsecured creditors would be able to close out their Chapter 13 plan without doing so,
other debtors who had more disposable income in the past than what they are likely
to receive in the future would be forced to confirm a plan that they could not maintain.
Accordingly, we adopt the view shared by many bankruptcy courts that a
debtors disposable income calculation on Form 22C is a starting point for
determining the debtors projected disposable income, but that the final calculation
can take into consideration changes that have occurred in the debtors financial
circumstances as well as the debtors actual income and expenses as reported on
Schedules I and J. See In re Kibbe, 361 B.R. 302, 314-15 (B.A.P. 1st Cir. 2007) (per
curiam) (Form 22C is the starting point for determination of projected disposable
income, but if material changes have occurred, bankruptcy court can look at other
information to make fact-based determination of debtors projected disposable
income); In re Lanning, 380 B.R. 17, 24-25 (B.A.P. 10th Cir. 2007) (same); Slusher,
359 B.R. at 299-300 (holding that a debtors disposable income as calculated under
11 U.S.C. 1325(b)(2) is not the same as a debtors projected disposable income,
but that it can be used as the presumptive projected disposable income); In re Pak,
357 B.R. 549, 552 (Bank. N.D. Cal. 2006) (to determine a debtors projected
disposable income, the court should try to predict the disposable income that the
debtor will receive during the plan using the definition of current monthly income
in 11 U.S.C. 101(10A)); In re Casey, 356 B.R. 519, 527-28 (Bankr. E.D. Wash.
2006) (court looked beyond Form 22C to determine debtors projected disposable
income and held that the applicable commitment period is a temporal requirement);
In re Fuller, 346 B.R. 472, 485 (Bankr. S.D. Ill. 2006) (for above-median debtors,
projected disposable income equals income calculation from Schedule I minus
standardized expenses from Form 22C); Grady, 343 B.R. 747, 752-53 (calculating
projected disposable income from Schedules I and J due to debtors heart condition
and inability to work); In re Jass, 340 B.R. 411, 418-19 (Bankr. Utah 2006) (Form
22C is presumed to be the debtors projected disposable income unless the debtor
can show there has been a substantial change in circumstances, in which case the court
6We note, of course, that the applicable commitment period in 11 U.S.C.
1325(b)(1)(B) becomes relevant only after a trustee objects to the debtors proposed
plan. Additionally, because it is not before us, our holding does not address the
situation in which a debtor has no actual projected disposable income after taking
into consideration Form 22C, Schedules I and J, and any change to the debtors
financial circumstances.
can look to Schedules I and J); Hardacre, 338 B.R. at 722-23 (projected disposable
income must be based on anticipated income rather than merely an average of past
This approach realistically determines how much a debtor can afford to pay his
creditors and maximizes the amount the debtor must pay to his unsecured creditors.
As aptly noted by the Kibbe court, the object is not to select the right form, but to
reach a reality-based determination of a debtors capabilities to repay creditors.
Kibbe, 361 B.R. at 315. Additionally, under this interpretation, the applicable
commitment period is logically a temporal requirement that does not lead to
anomalous or absurd results.6 See Nance, 371 B.R. at 370 (citing H.R. Rep. No. 109-
31, pt. I (2005), as reprinted in 2005 U.S.C.C.A.N. p. 88, 146, for the proposition that
Congress intended the applicable commitment period to provide a certain duration
length to Chapter 13 plans and noting that there is no evidence that Congress intended
to change the minimum plan length requirement in the pre-BAPCPA version of 11
U.S.C. 1325(b)(1)(B)); Slusher, 359 B.R. at 301 (defining the terms applicable,
commitment, and period, and concluding that the phrase applicable commitment
period indicates a minimum plan length); Casey, 356 B.R. at 527-28 (applying the
applicable commitment period as a temporal requirement); In re Schanuth, 342 B.R.
601, 606-08 (Bankr. W.D. Mo. 2006) (applicable commitment period is a temporal
requirement which must be satisfied unless the plan provides for payment in full of
all allowed unsecured claims). Thus, we conclude that the bankruptcy court erred by
confirming Fredericksons plan because Frederickson actually does have projected
7Whether BAPCPA has accomplished all that it was designed to achieve is a
matter of sharp debate. See Mike Meyers, A Bankrupt System?, Mpls. Star Tribune,
Oct. 12, 2008, at D1.
disposable income and therefore the plan cannot be confirmed over the trustees
objection unless it extends for the entire sixty-month applicable commitment period.
In arriving at our holding, we have given careful consideration to the Ninth
Circuits recent decision in In re Kagenveama, 541 F.3d 868 (9th Cir. 2008), which
found persuasive the Eighth Circuit Bankruptcy Appellate Panels decision in this
case. With all due respect to the Ninth Circuits opinion, we believe that the approach
we have taken will more fully accomplish that which Congress intended to achieve
through the enactment of BAPCPA.7
The judgments of the bankruptcy court and bankruptcy appellate panel are
reversed and the case is remanded to the bankruptcy court for further proceedings in
accordance with the views expressed in this opinion.


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