by NACBA has filed an amicus brief in the case of American Express Centurion Bank v. Henderson, No. 11-35864 (9th Cir.), arguing that a chapter 13 plan for an above-median debtor with negative disposable income need not extend for 60 months under the plain language of section 1325(b)(4) because there is no “projected disposable income.”
The brief seeks to have the court follow its earlier decision in Maney v. Kagenveama, 541 F.3d 868 (9th Cir. 2008), in which the court found that the commitment period set forth in section 1325(b)(4) did not apply where there was negative or zero disposable income. The creditor, and the trustee in the separate but connected case of McCallister v. Henderson, No. 11-35865, argued that the recent Supreme Court holdings in Hamilton v. Lanning, 506 U.S. __, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), and Ransom v. FIA Card Services, N.A., 131 S. Ct. 716, 178 L.Ed 2d 603 (2011), overruled the decision in Kagenveama. As neither of those Supreme Court opinions addressed the issue of applicable commitment period, NACBA argued that they did not overrule Kagenveama and the the doctrine of stare decisis supports the continued viability of that precedent. This case will be argued with the case of Danielson v. Flores (In re Flores), 11-55452 (9th Cir.). NACBA’s amicus brief was written by Raymond DiGuiseppe.