Tara Twomey,  Director of NACBA’s Amicus Project has filed two important amicus briefs this  month.

In the Eleventh  Circuit case of Tennyson v. Whaley, No. 09-14628, the above-median debtor showed a negative disposable income on  Form 22C based upon expenses that he was permitted to deduct from the means  test but that he did not, in fact, have to the extent allowable.  Based upon his actual expenses, the debtor  showed a positive disposable income figure on Schedules I and J.  The trustee argued that, as an above-median  debtor with positive actual income, the debtor was required to enter into a 60  month chapter 13 plan.

The amicus brief  argues that the “mechanical” approach as set forth in Maney v. Kagenveama, 541 F.3d 868 (9th Cir. 2008) is “the only  reading of [section 1325(b)] that gives meaning and purpose to all the  statutory language,” and that application of the “forward looking” approach  would eviscerate the statutory definition of disposable income.  Amicus furthered argues that “When Debtors  have no ‘disposable income,’ artificially extending chapter 13 plans makes  little sense and, in fact, punishes debtors for spending less.  Where no disposable income is available to  ‘be received’ by unsecured creditors, debtor should be permitted to propose  chapter 13 plans shorter than 60 months.”

In Wells Fargo v. Wilborn, No. 09-20415  (5th Cir.), the bankruptcy court certified a class of debtors who sought  injunctive relief against Wells Fargo to enjoin its charging and collecting of  fees in which such fees were undisclosed to both the court and to the  debtors.  In its brief NACBA argues that  the court properly exercised jurisdiction over the case as one “arising under”  or “arising in” a bankruptcy case under title 11.  Next, amicus argues that the class was  necessary to prosecute small claims which debtors would have been unable to  pursue in individual cases.  The class of  plaintiffs serve the important function of representing debtors who would be  deprived of their congressionally mandated “fresh start” by the improper  allocation of chapter 13 payments to fees which were not contemplated in the  plan, thereby causing debtors to come out of their chapter 13 cases with  mortgages that were still in arrears.