Paying more than 100% How to fight this

[sharina]

The letter of the law is all disposable OR 100%. Doesn't really matter what the trustees prefer. Be a little gentler on those of us who are truly paying 100%. I completely can relate and empathize with the OP!!!

[sharina]

One more question for the OP, does the pacer listing show the amt. to be paid to the trustee? I know that if I go to NCD13.com that it does NOT show the amt. for the trustee, so if I used that to calculate, my numbers would be off.

[dlinid]

Sharina,

It does not state that, but I knew to add her 10% on top of all the creditors. I asked my lawyer and the trustee to come up with 100% so we could get on with our lives without a lot of intrusion. My attorney and the trustee worked for an hour with the figures before presenting me with my final payment amount for the life of the bk. They sweated over it according to my attorney just to make sure it was correct. The final paperwork states the amount to the secured creditor and then the attorney, the unsecured and finally the trustee. It was all there for me, the attorney, the trustee and the judge to view. That is why the attorney is questioning the supposed underfunding. I need to do some digging on my own before I hear from the trustees office.

[justbroke]

The letter of the law is all disposable OR 100%. Doesn't really matter what the trustees prefer. Be a little gentler on those of us who are truly paying 100%. I completely can relate and empathize with the OP!!!

I wasn't trying to be harsh, but the reality is that in most Districts, it actually is that harsh. Some Districts are nice about this, and most are not.

Where do you read that it's 100% or the disposable income? The Code provides that you pay 100% of allowed unsecured claims or submit all disposable income; this is in terms of getting a plan confirmed. Once confirmed, it's a different story... as the plan dictates. When your plan is confirmed and you were under 100% payback, then you commit, all disposable income to the plan. If you are all the sudden in a 100% plan post confirmation, then you need to file a Motion to Modify Confirmed Plan.

It's the sad reality of it, and this is probably what the OP is going through. Many people, even those actually in a Chapter 13, fail to realize that the plan controls once confirmed. If you want to change the terms of the plan, you need to modify the confirmed plan, on motion.

[sharina]

Just Broke - not sure where you are going with this. There have been publicized rulings on the 100% or all disposable. And yes, some trustees have pushed this, but the smart debtor has challenged and won. Enough of these and it will stick.

There is also at least one case where amt owed was miscalculated and the debtor still prevailed because it should have been discovered prior to confirming the plan (this was not a 100% case I must add).

Not all is cut and dried.

dlinid, I am rooting for you as you mine this tangled web that our congress has created for us. Definitely, do your own research and calculating. My attorney has been no help at all in this process and I wish I had done more digging before signing. Now, I have to try and get a modification due to his overfunding of almost $30,000!!!!!

[justbroke]

Just Broke - not sure where you are going with this. There have been publicized rulings on the 100% or all disposable. And yes, some trustees have pushed this, but the smart debtor has challenged and won. Enough of these and it will stick.

Right, but that's at confirmation. Once your plan is confirmed, you are stuck with your confirmed plan until it is modified. This is an important distinction!

Think of it this way. You file your plan and it proposes 70% ($700/month) for 60 months. It is confirmed as such and since it was less than 100%, you must agree to give all your disposable income to the Trustee. Even if you get a massive tax refund and the Trustee takes it, your monthly payment would stay at $700/month, even if you rest of the payments plus the massive refund is over 100%.

To change the plan, you must file an amended plan and basically get the new plan confirmed.

It's not as simple as just saying "well, I'm going to end up paying 100% now, so I don't have to give up all my disposable income". You have to modify your plan to change the terms of your agreement. Subtle but very important.

There is also at least one case where amt owed was miscalculated and the debtor still prevailed because it should have been discovered prior to confirming the plan (this was not a 100% case I must add).

Exactly! A confirmed plan is the law. A confirmed plan is a confirmed plan and is the rule of the land. This is what I'm trying to tell you. Unless the plan was confirmed at 100%, you are bound by the plan.

If you end up in a position where you would pay 100%, it's best to amend your plan and file a motion to modify confirmed plan so that they don't keep taking all your disposable income.

I see that you may not see the distinction, but you do realize the impact of a confirmed plan and how that is binding on not only the creditors but also on the debtor.

In the end, to fight something that is more than 100% and you're in a confirmed plan already, you need to motion to modify your confirmed plan. This can be very important to your applicable commitment period and your sanity!

[sharina]

Just Broke - with all due respect, I DO get it. I am in a 100% plan as you can see. And in fact, am looking to modify my plan. But back to the OP question, yes, it seems she MAY have to modify the plan, but no-one knows what is wrong with her plan yet, maybe there is a simple explanation and it can be easily remedied.

[justbroke]

Just Broke - with all due respect, I DO get it. I am in a 100% plan as you can see. And in fact, am looking to modify my plan. But back to the OP question, yes, it seems she MAY have to modify the plan, but no-one knows what is wrong with her plan yet, maybe there is a simple explanation and it can be easily remedied.

There is something definitely wrong the OPs (dlinid's) plan and it will probably require modification of the confirmed plan. That was the only point of my blabbering.

The fact is, that the Trustee feels that the current plan is infeasible, and wanted to adjust the payment. This may or may not require a modification of a confirmed plan. It will depend on the interpretation of what tghe terms in the plan are and what 100% turns out to be.

Hopefully, dlinid has a competent attorney who is wiling to fight for them.

[dlinid]

After all the creditors had filed, we had 100% of our creditors file, and after the deadline for creditor filing was over, my attorney and the trustee sat down and took all that was outstanding, added her 10%, and divided that over the 54 months that were left. So I had a 100% plan with 100% of the creditors filing. Meaning, after my last payment there will be nothing to discharge.
My trustee said the payments might actually go down if we have a big contribution, that she would adjust the amount paid by taking what is left and dividing it by how many months are left, as opposed to shortening the time frame. She wants us to stay in the plan for the full time, not try to leave early by paying our way out early. Could be just her way, but that is what I am working with. She would not shorten the time, just lower the amount per month. However that is the opposite of what I am faced with now. I will have to wait and see what the trustees office comes up with and do an audit myself and compare results with my attorney.

Percentages do matter, but once you are confirmed you are at the mercy of the court and what you made the prior year will determine what you have to pay the next year If you are not confirmed at 100%. It does not give one great motivation to strive to make more for the next year, does it. That is a shame, knowing that every next dollar belongs to creditors and not to you. Hard lessons and I am sure that after this experience the recidivism rate is low for a sucessful 13.

[justbroke]

You're right dlinid, the system really isn't designed that well, and it may be why so many Chapter 13s fail. I hate the fact that you're in limbo and that your payment may have actually gone up.

[SMinGA]

Since no new claims, and all amounts were set ahead of confirmation - are there any claims that get interest in your plan? If so, perhaps the interest was not accounted for? That is the only other thing I can think of?