3-5 years? How is this decided?

[justbroke]

From what I 've read:
the law of the land in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Nevada, Washington, Guam, and Northern Marianna Islands) because of a landmark case, Maney v. Kagenveama (In re Kagenveama), 2008 U.S. App. LEXIS 13299 (9th Cir. Ariz. June 23, 2008)

it's posiible to have a 3-year plan if you have a negative DM on your 22C. I'm slightly over median income for my state (OR). The two attoneys I talked to both indicated I can have a 3-year plan since my DMI on 22C is negative 300.00.

There is some caselaw that indicates that the "applicable commitment period" (ACP) of either 36 months (3 years) or 60 months (5 years) is not applicable if you actually have no projected disposable monthly income (DMI).

Basically, you can propose a Plan with any number of months in it, if your disposable monthly income is negative. And, yes, Kagenveama is the landmark case.

However, ruling in the individual Circuit Courts (or even Districts for that matter), are not binding upon other Circuits. Each Debtor must look to his/her specific District or Circuit to see what caselaw prevails.

(I particular liked the Kagenveama decision! I should have used that in my case, since I have a negative DMI myself. However, in my Circuit (the 11th Circuit), Kagenveama is not binding and I haven't seen any case where you can propose a commitment period less than the statutory requirement.)

Regarding over or under the median income. I was told, that if you are under the median income, BUT you pass the means test, and yet file a Ch13, then you will be in a 3 year plan. I had heard this from many places. Not saying this is true, but just wanted to throw this out there since being over/under the median and passing/not passing the means test are two different things.

Very District (Circuit) dependent. If you're under the median, it's easier to change your commitment from 36 months to something higher... this is easily accomplished. However, getting the commitment period lowered from 60 months is more difficult for the over-the-median filer.

Passing the means test is for determination if you can be in a Chapter 13 only. Being over/under the median, in the Chapter 13 context, only determines what your applicable commitment period should be (by statute), and whether your expenses come from Schedule J (since you don't complete the Means Test), or from the Means Test (and in some Districts, they use both the Means Test and Schedule J for over-the-median filers).

This is one thing I do not like about some inconsistencies between Districts. I love the Kagenveama decision, but it's things like this that make it difficult to provide any real sound information unless you know where the Debtor is located and know the specific local rules, precedence and caselaw.