UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

IN RE:

KENNETH LARRY HICKS                                                                            CASE NO. 07-50701

DEBTOR

MEMORANDUM OPINION AND ORDER

           This matter affords the court its first opportunity to address the issue of a whether a debtor, whose current monthly income, as defined by the Bankruptcy Code, is below the state medium, but whose income as reflected in Schedule I is above the state medium, should have an applicable commitment period of 3 years or 5 years.

     Debtor filed his Chapter 13 petition on April 10, 2007. According to Schedule I of the petition, the debtor began a job with RJ Corman Railroad one month prior to filing bankruptcy. Schedule I reflects that the debtor’s income is $4,012.67 per month. According to Form B22C, filed with the petition, the debtor’s average monthly income for the six months prior to filing bankruptcy was $1,002.16.

     Debtor filed an amended Chapter 13 plan on June 27, 2007. Unsecured creditor L&N Federal Credit Union objected to the plan, arguing that debtor is required to pay a 60 month plan rather than a 36 month plan as determined by the means test, because the debtor’s income according to Schedule I is above the state median.

     Debtor contends that the means test is the only method to be used in determining the commitment period.

     Analysis.

     11 U.S.C. 1325(b)(4)provides the applicable commitment period for funding a Chapter 13 plan. The applicable period is 3 years if the current monthly income of the debtor is below the applicable state median income, but is 5 years if the current monthly income is above the state median.

     The term “current monthly income” is defined at Code section 101(10A) as “. . . . the average monthly income from all

sources . . . . derived during the 6-month period ending on the last day of the calendar month preceding the date of commencement of the case . . . .” 

     “Because current monthly income does not change during the case – it remains, by definition in section 101, the average income for the six months before the petition - the debtor cannot be forced to change the commitment period if the debtor’s income later changes from below median income to above median income.” Collier on Bankruptcy ¶ 1325.08[5][d].

     “The statutory formulas and Form B22C do lead to a fully-dispositive calculation of the applicable commitment period. When the calculation is complete, a debtor is directed to a three-year or five-year commitment period, and no further analysis is suggested, required, or allowed by any portion of the relevant statutes.” In re Beasley. 342 B. R. 280, 284 (Bankr. C.D. Ill. 2006).

     In consideration of the foregoing, L&N Credit Union’s objection to the plan is OVERRULED. The applicable commitment period in this case is 3 years.

COPIES TO:

Chris Carter, Esq.

Don Smith, Esq.

Jessica Newman, Esq.

Beverly M. Burden, Esq.