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Fritz
Fritz, Attorney
Category: Bankruptcy Law
Satisfied Customers: 302
Experience:  Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
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I have retired military (20+ years of service) who is 30% disabled

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I have retired military (20+ years of service) who is 30% disabled (as determined by the VA and reflected in how his retirement income is reported). He has been out of the military for several years and works a full time job. A recent divorce has resulted in a need for bankruptcy. We filed a Chapter 7 as he passed the means test. The US Trustee is objecting (finding of presumption of abuse) using the 12 month forward looking test rather than the 6 month backward looking test. We all know SSD is excluded from income. Is there anyway you can think of I can help this individual to reduce his forward looking income by at least the military disability payments. Please site statutes and case law where possible. This is in the 6th Circuit and Middle District of TN in particular. Thanks in advance.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Fritz replied 1 year ago.

Fritz :

The 6th Circuit has held that "projected disposable income" is forward looking and must be based on anticipated income over the life of the plan. See In re Petro, 395 B.R. 369 (6th Cir. BAP 2008) ("projected disposable income" should be calculated based on the realities of the debtor's circumstances as of confirmation and as reasonably anticipated to be during the length of the plan), here: http://scholar.google.com/scholar_case?case=2110540681256270341&hl=en&as_sdt=40005&sciodt=2,10. AXXXXXcourt case, Hamilton v. Lanning, here: http://scholar.google.com/scholar_case?case=7122148824674520754&q=130+S.Ct.+2464&hl=en&as_sdt=2,10 expressly approved this type of forward-looking approach. However, recent caselaw from the Middle District of Tennessee suggests that a Debtor such as this one may be able to claim "special circumstances" under § 707(b)(2)(B). See In re Barbutes, here:


http://courtweb.pamd.uscourts.gov/courtwebsearch/tnmb/71Y1nimqWZ.pdf


A 30% disability might well constitute a "special circumstance" so long as it can be considered a "serious medical condition." Under what appears to be the fairly liberal standard for a "special circumstance" in Barbutes, the Debtor's recent divorce and associated increased expenses should arguably be considered along with any alleged increase in forward-looking income.

Fritz :

This is a difficult and potentially thorny issue, so please let me know if you have any additional questions. Thank you.

Fritz, Attorney
Category: Bankruptcy Law
Satisfied Customers: 302
Experience: Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
Fritz and 3 other Bankruptcy Law Specialists are ready to help you
Expert:  Fritz replied 1 year ago.
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